District Court New South Wales Medium Neutral Citation: R v Murphy [2024] NSWDC 404 Hearing dates: 16, 19, 20, 21, 22, 23, 26, 27 August 2024 Date of orders: 06 September 2024 Decision date: 06 September 2024 Jurisdiction: Criminal Before: Anderson SC DCJ Decision: Mr Murphy is guilty of the offence of having sexual intercourse with the complainant without her consent pursuant to s 61I of the Crimes Act 1900 Catchwords: CRIMINAL LAW – judge alone trial – DNA evidence – circumstantial case – reasonable hypothesis consistent with innocence – expert evidence Legislation Cited: Crimes Act 1900 (NSW) Criminal Procedure Act 1986 (NSW) Evidence Act 1995 (NSW) Evidence (Audio and Audio Visual Links) Act 1998 (NSW) Cases Cited: Liberato v The Queen (1985) 159 CLR 507 Shepherd v The Queen [1990] 170 CLR 573 Category: Principal judgment Parties: Director of Public Prosecution (NSW) (Crown) Shannon Adrian Murphy (Accused) Representation: Counsel: Mr I Todd (Crown) Ms E Scoufis (Defendant) Solicitors: Director of Public Prosecution (NSW) (Crown) Hamilton Janke (Defendant) File Number(s): 2022/00302845 JUDGMENT 1. Sometime between 3.41am and 3.57am on 2 May 2012 the complainant in these proceedings was sexually assaulted in Civic Park, Newcastle. The question before the Court is whether the accused is responsible for that assault. 2. There is no doubt in my mind that the complainant in this matter was sexually assaulted. While there are aspects of her evidence which are contradicted by the evidence of other witnesses or objective evidence, I found her evidence to be highly credible when it came to the description of the attack notwithstanding that it occurred over 12 years ago. The complainant gave her evidence in Court, not in a remote witness room, and she gave her evidence without embellishment but rather with a sense of embarrassment and shame, two feelings she should not have. 3. To maintain the privacy of the complainants in sexual assault trials, they are referred to as either complainants or, if their evidence is accepted, as victims. By convention the accused is simply referred to as the accused. To further protect the anonymity of the complainant and her family, I will refer to other lay witness in this matter by their initials. Key issue 1. Unusually for a sexual assault trial, the central issue in this case is not whether a sexual assault occurred, or how it occurred, but rather whether the Crown is prosecuting the correct accused. 2. By virtue of an application brought by the accused, opposed by the Crown, orders were made under s 132(2) of the Criminal Procedure Act 1986 (NSW) ("CPA") on 16 August 2024 for the trial to proceed as a judge alone trial. Accordingly, I am both the tribunal of fact and the tribunal of law. Section 133 of the CPA requires a judge conducting a judge alone trial to include in a judgment the principles of law to be applied and the findings of fact upon which the judge relies. 3. Section 133(2) of the CPA is not satisfied merely by a bare statement of principles of law that the judge has applied, and a recital of the findings of the fact the judge has made. There must be exposed the reasoning process, linking them and justifying them and later, ultimately, the verdict that is reached. Whilst it is not necessary for a trial judge to refer to every piece of evidence led in the proceedings; it is essential to expose the reasoning on a point critical to the contest between the parties. To meet that standard, I will ultimately to into some detail in explaining my conclusion. 4. Pursuant to s 133(3) of the CPA, I am required to consider any warning required by any Act or law to be given to a jury in such a case. In this trial, the parties have agreed that I should direct myself in accordance with the directions document which was settled between the parties with their assistance. This judgment should clearly be understood in the context of those written directions, which I will incorporate into the written version of this judgment. Background 1. The accused is before the Court in relation to a single charge. The charge is brought pursuant to s 61J(1)(a) of the Crimes Act, being that: 1. On 3 May 2012 in Newcastle in the State of New South Wales the accused had sexual intercourse with the complainant, without her consent, and knowing that she did not consent to the sexual intercourse in circumstances of aggravation, namely, at the time of or immediately before the commission of the offence, the accused did recklessly inflict actual bodily harm on her. 1. The Crown also relies on the statutory alternative to that charge, being that the accused is guilty of the offence of sexual intercourse without consent, an offence under s 61I of the Crimes Act, that is, without the element of aggravation. The accused was arraigned on Monday 19 August 2024 and pleaded not guilty. That plea also applies to the statutory alternative. Directions of Law Onus and Standard of Proof and the Presumption of Innocence 1. This is a criminal trial and the burden of proving the guilt of the accused rests firmly and only on the Crown. That onus is in respect of every element of the charge. There is no onus of proof on the accused at all. It is not for the accused to prove his innocence but for the Crown to prove his guilt in relation to the count on the indictment and to prove it beyond reasonable doubt. That is a very high standard of proof for the Crown to achieve. 2. The words "beyond reasonable doubt" are to be given their ordinary English meaning. People who are tried in our Courts are presumed to be innocent unless and until they are proven guilty by the Crown, beyond reasonable doubt. Expressed differently, I must consider whether there is any reasonable possibility that the accused is not guilty. If the answer is yes, then the verdict is not guilty, if the answer is no, the verdict is guilty. That said, whilst the onus of proof is on the Crown to prove the guilt of the accused beyond reasonable doubt, that does not mean that the Crown has to prove every single fact or issue beyond reasonable doubt. The onus is on the Crown to prove the elements of each offence beyond reasonable doubt. I am conscious in directing myself in these terms of the elements of the alleged offences. Assessment of evidence 1. In determining the facts, I must act rationally. I must determine the facts based on the evidence given by the witnesses and the evidence contained in the documents and other items that have been tendered as exhibits. Considerations of emotion and prejudice must play no part in my deliberations. I must give true verdicts in accordance with the evidence. I remind myself that evidence is a combination of the question asked and answer given, not the question. The Crown does not need to prove every fact alleged in its case beyond a reasonable doubt, but rather it must prove the elements of the offences beyond a reasonable doubt. 2. I may believe the whole of what a witness says, I may disbelieve the whole of what a witness says, or I may believe one part and disbelieve another part of a witness' evidence. Each witness has given evidence about things they said they have remembered. How well a person might remember something depends upon many different factors including that person's capacity to lay down an accurate memory in the first place, their capacity to retain that memory and its associated detail, and their capacity to recall the memory and articulate it. 3. The subject matter of an event is also a relevant factor when considering memory. Some events themselves are of little or no consequence and memory of those events may be retained for a short time only and then gone. Other events are of greater importance in consequence such that one might remember it for a relatively long time, although perhaps over time aspects of the detail of the memory or the parts one considers to be of no real consequence might fade. 4. All these common-sense factors might impact on what someone might be able to remember of an event or how clearly, they might remember it. What I must decide in relation to the evidence of a particular witness is whether I consider their evidence to be sufficiently reliable such that I can act upon it. Reliability depends upon two quite different but overlapping factors. One factor is the witness' honesty and the other is the witness' accuracy. There are many factors which can have a bearing upon a witness' honesty. If I conclude that a particular witness has been doing his or her best to be honest, I will need to move to the second aspect of reliability which relates to a witness' accuracy. A witness can be perfectly honest and accurate. Or perfectly honest, yet completely or partly inaccurate. There are many factors which can have a bearing upon the accuracy of a witness' evidence. Right to silence 1. The accused was offered the opportunity to participate in an interview with police when he was arrested on 11 October 2022 but, as was his right, he chose not to do so. All people in this country have a right to silence. Ultimately the accused gave evidence during the trial and I will deal with the significance of that in a separate direction. The fact that the accused gave evidence does not shift the burden of proof. Inferences 1. As this is a case which involves circumstantial evidence, I must direct myself in terms of the inferences which can be drawn from the available direct evidence. Inferences are conclusions of fact rationally drawn from a combination of proved facts. If A, B and C are established as facts then one might rationally conclude that D is also a fact, even though there might be no direct evidence that D is indeed a fact. Inferences may be valid or invalid, justified or unjustified, correct or incorrect. 2. In a criminal trial, I must be satisfied of the guilt of the accused beyond reasonable doubt. Amongst other things, that means that I should be extremely careful about drawing any inference and I should examine any possible inference to ensure that it is a justifiable inference. I should not draw an inference from the direct evidence unless it is a rational inference in the circumstances. In this case, the Crown asks the Court to draw an inference that the accused was the person who sexually assaulted the complainant because his DNA was found on the complainant's neck, as well as cigarette butts found where the sexual assault is said to have occurred. Two of those cigarette butts also had the complainant's DNA on them. The Crown also relies on the accused leaving Fanny's Tavern ("Fanny's") within a minute or so of the complainant, the absence of evidence they interacted at Fanny's, the fact that the accused was a cigarette smoker and the description the complainant gave of her attacker. Circumstantial case 1. In this case, the Crown relies largely on "circumstantial evidence" with respect to the accused being the person who sexually assaulted the complainant. In relying upon circumstantial evidence, the Crown asks the Court to find certain basic facts and then from those facts to draw a conclusion as to the existence of a further fact, being that it was the accused who sexually assaulted the complainant. 2. Circumstantial evidence can be contrasted with direct evidence. Direct evidence is what a witness says that he or she saw or heard or did. It may be a witness saying that he or she saw an accused person do the act which the Crown says constitutes the crime charged. It may be a video recording showing an accused person committing an act that the Crown relies upon as part of its case, or it can be evidence from a witness that he or she heard an accused person admit to committing the crime. In a direct evidence case, if the evidence is accepted beyond reasonable doubt, it can prove the guilt of the accused. 3. In a circumstantial case, the Crown lacks direct evidence of that kind. This does not mean that a circumstantial case is for that reason weaker than a case based upon direct evidence. Typically, in a circumstantial case no individual fact can prove the guilt of the accused. Where the Crown's case depends either wholly or in part on circumstantial evidence, then the tribunal of fact is asked to reason in a staged approach. Firstly, the Crown asks the tribunal of fact to find certain basic facts established by the evidence. Those facts do not have to be proved beyond reasonable doubt. Taken by themselves they cannot prove the guilt of the accused. 4. With those discrete pieces of evidence, the Crown relies upon, I am asked to infer or conclude that further facts existed, namely, that the presence of the accused's DNA on the neck of the complainant is consistent with both the complainant's allegation of how she was attacked and the accused being the attacker. The presence of both the complainant and accused's DNA on the two cigarette butts is relied upon by the Crown as evidence of the accused being the complainant's attacker and the cigarette butt with the accused's DNA is consistent with his presence at the park. 5. The ultimate fact the Crown asks me to find, based upon that evidence is that the accused person is the person who sexually assaulted the complainant. A case based on circumstantial evidence may be just as convincing and reliable as a case based upon direct evidence. This will depend upon the number and nature of the basic facts relied upon by the Crown when considered as a whole (not individually or in isolation). And it will depend upon whether all of the evidence leads to an unavoidable conclusion that the Crown has established the guilt of the accused. It is important that in approaching the circumstantial case I consider and weigh the evidence as a whole. It is wrong to consider any fact in isolation and ask whether that fact proves the guilt of the accused, or whether there is any explanation for that particular fact or circumstance which is inconsistent with the accused's guilt. 6. The correct approach is first to determine what facts I find established by the evidence. No particular fact needs to be proved beyond reasonable doubt. When I consider all those facts together, I must ask myself whether I can conclude from those facts that the accused is guilty of the offence charged. If such a conclusion does not reasonably arise, then the Crown's circumstantial case fails because I am not satisfied of guilt beyond reasonable doubt and I must find the accused not guilty. 7. But if I find that such a conclusion is a reasonable one to draw based upon a combination of those established facts then, before I can convict the accused, I must determine whether there is any other reasonable conclusion arising from those facts that is inconsistent with the conclusion the Crown says is established. If there is any other reasonable conclusion arising from those facts that is inconsistent with the guilt of the accused, the circumstantial case fails because I am not satisfied beyond reasonable doubt of the accused's guilt. I understand that drawing a conclusion from one set of established facts to find that another fact is proved involves a logical and rational process of reasoning. I must not base my conclusion upon mere speculation, conjecture or supposition. Complaint evidence 1. The Crown relies on two pieces of complaint evidence. The first is the evidence of the complainant's boyfriend, now husband, who I will refer to as "MS". His evidence was given via his contemporaneous police statement, which was tendered during the trial by consent. He was not cross-examined. The complaint evidence in summary is that at 3.41am the complainant had been with her friends LS and SH at Civic Park. There was two men with them and that SH and LS went home with those men. The complainant stayed at the park and was going to get a taxi. At 3.57am, MS received a call from the complainant and had a conversation which I will set out in full in my evidence summary, but the complainant stated she needed him because, "A guy has scared me. I really need you". 2. The complainant said, "Someone raped me" and "Some guy has followed me and scared me and I am hiding in a tree". MS and his family drove to Newcastle's Civic Park where the complainant was hiding, while his mother contacted the police. During this call, MS told the complainant not to move, then the complainant said, "Oh my god, is that ambulance for me?" Then she asked, "Is that cop car for me?" Upon arrival at the scene, MS observed the complainant to be surrounded by ambulance and police officers. MS asked the complainant, "Are you okay. Did he hurt you?" to which the complainant responded "I'm okay. It only went in a little bit". MS's father then drove the complainant to the hospital in the car with his mother and sister. Just prior to leaving the hospital, the complainant said to MS, "I'm supposed to enjoy it. It isn't supposed to be painful. He forced it in. He moved a little bit. I then kicked him off. It was really small. He put his disgusting bits near me. It's not supposed to be like that". 3. The second piece of complaint evidence is paragraphs 7 to 10 of the statement of Dr Hamilton, which is Exhibit 16. I note that this statement was tendered without objection and is admissible via s 65(2) of the Evidence Act 1995. 4. If I accept the evidence from the complaint witnesses, I can use it in two ways. Firstly, it can be regarded as additional evidence the complainant was assaulted in the way she described. So, not only would I have the complainant's evidence about being assaulted by the accused, I would also have the description of the assault that was given to Dr Hamilton and MS. The second way the evidence of complaint may be used is that it can be relevant to the truthfulness of the complainant's evidence in court. The Crown says the fact the complainant complained to MS and Dr Hamilton shortly after the attack, makes it more likely the complainant is telling the truth about the sexual assault. Section 293A Criminal Procedure Act 1. The accused's case is that the complainant had gaps in the account she gave of the assault and that there were differences and inconsistencies between other witness's accounts, specifically, SH, LS, MS and Dr Hamilton with respect to who was at Civic Park with her and what they were doing prior to her alleged attack. 2. 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. It is a matter for me as the tribunal of fact to decide whether or not any differences in the complainant's account are important in assessing their truthfulness and reliability. Liberato direction 1. The accused gave evidence at the trial. I will assess his evidence in the same manner I assess any other witness. If I accept the accused's evidence that he did not sexually assault the complainant, then I must acquit him. Even If I have difficulty in accepting the accused's evidence but it gives rise to a reasonable doubt that it might be true, then I must acquit him. If I do not believe the accused's evidence then I will simply put it to one side because the question remains: has the Crown, upon the basis of evidence that I do accept, proved the accused's guilt beyond reasonable doubt? Directions in ss 292-292E Criminal Procedure Act 1986 1. The Court recognises that these directions potentially apply to these proceedings, but given the facts in issue, they are not relevant. Limit on the use of terminology: s 136 Evidence Act 1. Exhibit 8 is a statement from Senior Constable Lee Whiting. At paragraph 31 it uses terminology such as "abrasion", "bruise" and "bruising." Those terms are understood to be used as descriptions given by a lay person and do not have the meaning they would have had they been used by an expert medical witness. Evidence given remotely 1. As is routinely the case in 2024, several witnesses - but not the complainant - gave their evidence via AVL. With one exception, those witnesses were professional witnesses in the sense that they were either experts or current or former police officers. Orders were made allowing this under s 5B of the Evidence (Audio and Audio Visual Links) Act 1998. The fact that the evidence was given in this way does not add or detract from its cogency and I am to treat as I would as if it was given in Court. Expert evidence 1. In this case, there was expert evidence called by both parties concerning DNA and in the accused's case, a bite mark. An expert witness is a person who has specialised knowledge based on their training, study or experience. Unlike other witnesses, a witness with such specialised knowledge may express an opinion on matters within his or her particular area of expertise. Other witnesses may speak only as to facts, that is, what they saw or heard, and are not permitted to express their opinions. 2. The value of any expert opinion very much depends on the reliability and accuracy of the material which the expert used to reach his or her opinion. It also depends on the degree to which the expert analysed the material upon which the opinion was based and the skill and experience brought to bear in formulating the opinion given. Experts can differ in the level and degree of their experience, training and study, yet each can still be an expert qualified to give an opinion where that opinion is based on that witness's specialised knowledge. 3. Expert evidence is admitted to provide the Court with scientific information and an opinion on a particular topic which is within the witness's expertise, but which is likely to be outside the experience and knowledge of the average lay person. The expert evidence is before me as part of all the evidence in the Crown case dealing with the central issue in dispute, namely whether the accused had sexual intercourse with the complainant. I will bear in mind that if, having given the matter careful consideration, I do not accept the evidence of the expert, I do not have to act upon it. Witnesses not called by the Crown 1. Where a witness who might have been expected to be called and to give evidence on a matter is not called by the prosecution, the question is not whether the tribunal of fact may properly reach conclusions about issues of fact but whether, in the circumstances, they should entertain a reasonable doubt about the guilt of the accused. I can take the fact that there was no evidence from certain potential witnesses into account when I decide whether the Crown has proved the guilt of the accused. I cannot speculate as to what they may have said had they been called. But in a criminal trial, where the Crown must prove that the accused is guilty beyond reasonable doubt, I am entitled to consider that there was no evidence from particular persons in deciding whether or not there is a reasonable doubt about the accused's guilt. 2. In this case, those witnesses are: 1. The complainant's mother, JS: 1. Attended the hospital with the complainant; 2. According to SC Whiting's unchallenged evidence, she was the person holding the ruler when SC Whiting took photographs of the complainant's injuries. 3. She was a witness to the conversation that passed between SC Whiting and the complainant about the complainant's participation in the forensic procedure and her injuries; 4. Attended the Police Station with the complainant the day after the incident. 5. She was present when the complainant spoke to a Police officer (DSC Freney) and advised police that she was yet to sign the release for the SAIK kit, even though the examination had been completed and the circumstances of that decision. 6. She telephoned DSC Freney on 8 May 2012 and told him the complainant preferred not to make a statement at this time. 1. The police officer who took the first complaint from the complainant at Civic Park. The identity of that officer remains uncertain. 2. Officer Weathersby, who collected the complainant's underpants and skirt from the Hospital. DSC King said that his notes could not be located. 3. Persons who witnessed the complainant's activities and leaving time from the park near St Francis Xavier and those who witnessed the complainant living Fanny's. 4. The person who produced the CCTV from Fanny's or a witness who could speak to it. Forensic disadvantage - s 165B Evidence Act 1. Although the complainant told police about the alleged attack immediately in 2012, it was not until October 2022 that the accused was charged with the crime. The delay of 10 years and 5 months has placed the accused at a forensic disadvantage in a number of ways. The delay has deprived him of being in a position to easily obtain documents such as his employment records, complete banking or telephone records or other material which he may have been able to rely to case doubt on the Crown's case. 2. The telecommunication records relating to use of the complainant's phone during the evening cannot be obtained. It was submitted that the rest of the CCTV from Fanny's from the evening in question has been lost. Notebook entries or other records from the police who first spoke to the complainant at Civic Park are unavailable. A copy of the extract of SC Whiting's notes from his Police notebook have been lost. Hospital records relating to the complainant's admission on 3 May 2012, for example, admission and discharge notes are not available, nor ambulance records or records held by Detective Freney relating to the 2012 investigation. 3. The accused may have been able to identify witnesses he could call in support of his version of events or to cast doubt on the Crown case or been able to recall his own movements with greater precision or give more detailed instructions. 4. There is also a loss of important objective evidence. The tampon, Nerds candy box, Red Bull aluminium can and small plastic zip lock bag were all initially seized from the crime scene by investigators, but then discarded without forensic testing. Similarly, the black skirt and underwear the complainant was wearing at the time of the alleged attack was returned to her without testing. 5. As the accused has been put into this situation of significant forensic disadvantage he has been prejudiced in the conduct of his defence. As a result, I direct myself that before I convict the accused I must give the prosecution case the most careful scrutiny. In carrying out that scrutiny I must bear in mind the matters I have just referred to and lost opportunity this presents to the accused to potentially rely upon exculpatory evidence. Elements 1. To prove the accused is guilty, the Crown must prove beyond reasonable doubt each of the following three elements of the offence: 1. that, at the time and place alleged, the accused had sexual intercourse with the complainant. 2. without the complainant's consent 3. knowing the complainant did not consent. 4. the offence occurred in circumstances of aggravation because at the time of or immediately before the commission of the offence, the accused did recklessly inflict actual bodily harm on the complainant. 1. I can only find the accused guilty if the Crown proves each element beyond reasonable doubt. If the Crown fails to prove any one of them, I must find the accused not guilty. These elements have particular considerations which I will set out. The accused had sexual intercourse with the complainant 1. This element concerns the act of sexual intercourse and who perpetrated it. The Crown must prove beyond reasonable doubt that an act of sexual intercourse occurred between the complainant and the accused. 2. The meaning of sexual intercourse includes: 1. penetration to any extent of the complainant's genitalia (where complainant is female) or anus by any part of the accused's body or by an object manipulated by the accused. 2. the introduction of the accused's penis into the complainant's mouth, 3. cunnilingus, and; 4. the continuation of any of the above acts. 1. I only need to consider elements 2, 3 and 4 if I am satisfied the Crown has proved the first element of the offence beyond reasonable doubt. The sexual intercourse occurred without the complainant's consent 1. The second element concerns the complainant's state of mind. The Crown must prove that the sexual intercourse occurred without the complainant's consent. Consent means that a person freely and voluntarily agrees to something. So, the Crown must prove the complainant did not freely and voluntarily agree to the sexual intercourse. 2. The issue is whether the complainant did not consent to the sexual intercourse when it occurred. What the complainant's state of mind was before or after the sexual intercourse might prove a guide, but the question is whether the Crown has proved that the complainant was not consenting at the time the sexual intercourse occurred. The accused knew the complainant did not consent 1. The third element concerns the accused's state of mind. The Crown is required to prove the accused knew the complainant did not consent to the sexual intercourse. This is a question about what the accused's state of mind actually was. It is not a question about what you or anyone else would have known, thought or believed in the circumstances. It is what the accused knew, thought or believed. Recklessly inflicts actual bodily harm on the complainant 1. The Crown case is that the complainant suffered various injuries during the sexual assault including a burn to the lower lip with a sloughed area; a faint area of circular scratching to the left side of the neck; this being the location where the swab was taken; very faint shoulder bruise; 1cm abrasion to elbow; faint skin marks from pressure and tenderness to back; multiple scratches to the right thigh; 1.5 cm fresh abrasion to the right knee and a 2.5cm bruise to the left foot. 2. The element of recklessness is made out if I am satisfied beyond reasonable doubt that the injury or injuries relied upon by the Crown was caused recklessly by the accused. An injury is caused recklessly if the accused realised that actual bodily harm may possibly be caused upon the victim by his actions, yet he went ahead and acted as he did. The accused cannot be found to have acted recklessly unless the Crown proves that the accused actually thought about the consequences of his act and at least realised the possibility that actual bodily harm would occur. 3. I must consider all of the circumstances, including any steps taken by the accused to make sure the complainant consented to the sexual intercourse. The law says the Crown will have proved the accused knew the complainant did not consent to sexual intercourse if: 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. 1. The Court must also consider the statutory alternative to the aggravated sexual assault alleged. I direct myself that if I am not satisfied that the Crown has proved beyond reasonable doubt all the necessary elements of the principal offence being, then I must find the accused not guilty. At that point I can consider whether the Crown has proved beyond reasonable doubt all the necessary ingredients of the alternative charge. However, I direct myself that I should not regard the availability of an alternative count as an invitation to compromise my verdict. The alternative count's elements are that: 1. that, at the time and place alleged, the accused had sexual intercourse with the complainant. 2. without the complainant's consent 3. knowing the complainant did not consent. 1. I have already set out the tests for each of those elements. 2. Finally, with respect to the directions I have given myself, as a result of hearing the application for a judge alone trial, I was provided with a copy of the Crown Case Statement. I note what is set out at para [35] of that document and place no weight on it in terms of my consideration of this matter. Summary of evidence 1. I stress that it is a summary only and does not refer to every piece of evidence, although I have had regard to the entirety of the evidence before me. I note that there was oral evidence given by six Crown witnesses and three were called by the accused, including the accused himself. There were 18 exhibits tendered by the Crown and 21 tendered on behalf of the accused. The complainant's evidence 1. The complainant was the first witness. Her evidence in chief was given softly, often through tears. She often hesitated before answering a question in order to compose herself. Her evidence was clear about those aspects of the evening she could remember and she was honest about the fact that there was a substantial portion of the night she did not remember. 2. Her evidence was that she was 20 years old in 2012 and attended Newcastle University. She worked at the Nandos take away shop and on Wednesday 2 May 2012 she had finished work and met up with some friends in a park in the early evening near her old high school. At some point she got changed from her work clothes and into her going out clothes. After being at the park with her friends, after it got dark, she went into town driven most likely by a friend arriving at Fanny's. 3. Her evidence was that while she was at Fanny's she met up with her friends, SH and LS, both of whom gave evidence. The complainant was wearing a black skirt made out of stretchy material, black underwear and brassier and what was described as a "Peplum dress" which the Court was told was a style that had a singlet top and with an extra layer of fabric that flared out below the waist. It had a zip at the back. 4. The complainant gave evidence that she was drinking vodka mixed drinks at Fanny's, but could remember how many she had during the course of the evening. She recalled Wednesday was a busy night at Fanny's, with the venue packed with students there for the weekly cheap drinks. The complainant recalled that she thought someone had spiked her friend SH's drink because SH was struggling to talk, she had gone quite limp and she and LS had to take SH to the bathroom with her and help her recover. 5. The complainant does not remember leaving Fanny's, but she remembers waking up in Civic Park near the fountain and the garden near the flowers, lying on the ground facing up. Given the critical importance of her evidence, I am going to set it out, commencing at T.52.10: Q. What's the next thing you do remember? A. It felt like waking up in the park, in Civic Park. Q. Do you remember where you were in Civic Park? A. Yep. Q. Where were you? A. Like, in front of the fountain where the garden is. Where the flowers are. Q. When you say waking up, what was your body in ‑ what position was it in? A. I was lying on the ground. Q. Face up or face down? A. Face up. Q. Could you feel anything under your back? A. I remember grass and concrete. So, I'm not sure which – when each - happened, but I did have grass underneath me at one point and concrete underneath me at one point. Q. What's the next thing you remember? A. I remember there was someone on top of me. Q. When you say, "someone on top of me," ‑ it's all right, take your time ‑ what do you mean? A. So, I was lying down on my back and the man was, I think, sort of kneeling over the top and there was pressure around here, like someone one pushing me down over my shoulders and chest area, like someone was holding or pushing me down. Q. You're saying the word shoulder and chest area and you're indicating where on your body, which is around the collarbone area; is that right? A. Yep. Yeah, and shoulders. Q. And shoulders, and you said it was a male? A. Yep. Q. How did you know it was a male? A. The male ‑ he was sort of broad shouldered and strong, so I knew straight away that it was a man. Q. Could you smell anything? A. I don't remember. Q. What's the next thing you do remember? A. Something was burning me on my lip. Q. Can you indicate where on your lip? A. I think it was my bottom lip, on maybe this ‑ this is where I feel it when I remember it, so I think it was the bottom left. Q. You're gesturing to the bottom lip. A. Yep. Q. Somewhere near the middle of the mouth. A. I think so, yeah. Q. A little bit to your left. A. I think so, yep. Q. You felt a burning sensation. Did you know where that burning sensation was coming from? A. It was from a cigarette. Q. Did you see the cigarette? A. I think so, yeah, yep. Q. Could you smell anything from the cigarette? A. I can't remember the smell. Q. How are you feeling at this point? What was your emotional state? A. I was terrified. Really scared. Q. Was anything being said by that person? A. I think he said, "Don't move." Q. When he said that, was the pressure still being applied to you? A. Yep. Q. Could you see this man's face? A. Yep. Q. Are you able to say what you understood to be his ethnicity? A. Caucasian. Q. Were you able to assess what you thought his age might be? A. I thought he was about my age, roughly. Q. You said he had broad shoulders, was there anything else that you can describe about him, including any facial hair? A. I don't think he had any facial hair. He just looked like there wasn't anything that, sort of, stood out. Q. The hair on his head wasn't something unusual. A. I don't think so. Q. In terms of the clothes you were wearing, what, if anything, did you notice about those clothes? A. My skirt was pushed up and, I think, at that point, my undies were pulled down. Q. Did you feel them being pulled down? A. Yep. I think so. Q. Who pulled them down? A. The man pulled them down. Q. Were you saying anything to him? A. I don't remember exactly when I said ‑ I think I said, "Stop," but I don't remember when I said stop. If it was straight away or a little bit after. Q. When you say you don't remember if you said stop a little before or after, after what? A. After this point in time that we're talking about right now. Q. What did you see the man then do? You said he's taken your underpants down. A. Yep. Q. How far down your legs did they get? A. I think they were, like, maybe ‑ sorry, I don't remember. They were down, but I don't remember how far. Q. What's the next thing you remember the man doing? A. I get a little bit mixed up with the order of a couple of things that happened, but there was a point where he was biting me. Q. Where? A. On my neck. Q. You're indicating the left‑hand side of your neck; is that right? A. I think so. Q. Can I ask you this? A. Yep. Q. That biting of the neck, did it leave a mark? A. Yep. Q. Was it a mark that you showed anyone after this night? A. Yep. Q. Who did you show? A. I think they took some photos in the hospital. Q. Is it the police? A. Yeah, I think so. Q. When that bite happened to your neck, how did it feel. A. It really hurt. Q. Did you want any of this to happen? A. No, no. Q. That is, the pants being taken off, the‑‑ A. No, I was really scared. Q. The bite of the neck wasn't something you wanted? A. No. Q. When that happened, when the bite happened, did you say anything? A. I can't remember if I said anything at that time. I know that I said, "stop" in there. In ‑ during this time, or maybe two or three times, but I don't know exactly when. Q. What else did the man do? You said he was on top of you at some point. A. Yeah. Q. Kneeling over you; is that right? A. Yep. Q. Pushing down? A. Yep. Q. He's bitten you on the neck? A. Yep. Q. At some point? A. Yep. Q. He's pulled your underpants down? A. Yeah. Q. What else? A. He undid his pants or took his pants down. Q. Did he take off his underpants, to your knowledge, as well? A. Yeah. Q. Did you see his genitals? A. Yep, yep. Q. Just tell us in your own words what happened. A. (No verbal reply) HIS HONOUR Q. [Complainant], do you want a break? A. I'm okay. Q. You can have a break if you'd like one. A. No, I'm okay. I need to say it. He put his ‑ he put his penis inside me, and he started raping me. CROWN PROSECUTOR Q. I'm sorry to have to do this, but we have to ask‑‑ A. Yes. Q. ‑‑some details. When you say, "He put his penis inside me," do you mean he put his penis inside your vagina? A. Yes. Q. You felt that at the time? A. Yes, yep. Q. Did you want this to happen? A. No. Q. Did you say anything? A. I said, "stop." Q. For how long did this go on? A. I think it was a couple of minutes. Q. How were you feeling at that time? A. I was really scared that if I did anything then he would hurt me more. I didn't know if it would be better to stay still and ‑ or to try and make it stop. I was terrified. Q. When you said, "Stop," did he stop? A. No. Q. Again, I'm sorry to have to ask these questions, but in regards to your menstrual cycle, what can you say about that at that time? That is, the early hours of 3 May 2012? A. I think it had just finished. It was sort of the last day. I had a tampon in just in case, because it was going out and I thought I didn't want to have to realise halfway through the night that I had actually not finished it yet, so I put one in just to be careful. Before he put his penis inside me, he pulled the tampon out. Q. How did that make you feel physically? A. It was very uncomfortable. Sorry, this is an awful thing to have to talk about. I was very dry, so it was ‑ it was painful when it was removed. Q. So this penile‑vaginal intercourse is going on for a couple of minutes? A. Yeah. Q. How did it stop? A. I think I yelled out. Like I ‑ just like a screaming sort of noise. But it was really quiet in the park, and I think I was just hoping that maybe someone was around that would hear. Q. Did you do it more than once? A. I think twice. Q. As a result of that, what happened? A. He stopped and stood up and ran away. 1. The complainant also gave evidence that her lip, neck, and vagina hurt. She described the pain in her vagina as being the result of some abrasion. Her top was still on, but its zip was digging into her back. She gave evidence that she had grazes down her back and legs, and her back was sore. The complainant gave evidence that she was scared that the attacker would come back, so she hid in a tree. As she had her phone on her, she called MS and told him "someone raped me". She was scared her family was going to find out. She was scared because her parents were going on a 6 week overseas trip and she did not want to ruin their holiday by telling them about this incident. 2. MS arrived at the park. The complainant recalls speaking with a police officer at the park and she remembered being scared, embarrassed and worried about her parents' holiday and her sisters finding out and being upset. The complainant's evidence was that she recalled being quite intoxicated when the police arrived. She did not feel she could explain with precision what happened, in part because of her intoxication and because she was in shock. She said, "I don't think I wanted to make it real by saying it all out loud." 3. The complainant did not want to go in the ambulance because she believed it would be expensive, so the complainant went with MS in his parents' car to the hospital. She recalls speaking to a police officer, but she does not remember what she said. The complainant does remember photographs being taken of her by police. Those photographs appear in Exhibit 1. The photographs depicted what are said to be abrasions on her back, left elbow, left knee, legs, arms and the right-hand side of her neck. The complainant noticed in the photographs what she described as "bite marks". The complainant gave evidence that over the next few days the bite marks, "…turned intro bruising. So, it changed colours, like bruises do." 4. After speaking with police at the hospital on the morning of 3 May 2012, the complainant went home, then went back to the hospital later in the day and spoke to a doctor. At that point the complainant gave her version of events. Her evidence included was that she felt unwell and scared at that point. She gave a statement to police but was unsure whether it was her decision to or the police asked her to. She recalls giving police information but was unsure whether it was an official statement. She did not believe she gave a full version to police at that time. She had the impression that in 2012 the police would have difficulty pursuing the matter because she did not know who it was that attacked her. As a consequence of the incident the complainant stopped going to University for a while because she did not want to go back to the area where the incident happened. 5. The complainant provided a more detailed statement to police during late 2022. The complainant indicated on an aerial map of Civic Park where the attack happened and where the attacker fled after it stopped. That was Exhibit 2. The complainant also identified 6 pages of still images taken from the CCTV cameras at Fanny's. She identified herself in the stills between the times 12.17am and 3.05am on 3 May 2012. 6. The complainant was cross-examined extensively, beginning with the fact that she was living at home as at 3 May 2012 with her parents and sisters. She had left school in 2009, started university in 2010 and was attending University during 2012. Her evidence was she would walk through Civic Park from time to time. The complainant worked part-time at Nandos take-away, but she did not remember her shifts. Her evidence was that Nandos closed at 9pm. 7. With respect to Fanny's, the complainant had been there before, probably more than five times before. Sometimes her nights out would end there. Fanny's had a 10pm opening time and it had a 3am closing time. It was a popular place and was often jam packed with people. She believed Newcastle had "lock-out laws" at the time and there was to be no glasses for patrons after a certain time. 8. The complainant gave evidence about her high school and the fact that during the evening of the incident she went to a park nearby her old school with some friends. Her best friend also worked at Nandos. After having worked at Nandos that day, she may have gone home and gotten changed, then gone to the park with her friends but was unsure. The complainant did not recall whether she and her friends were eating and drinking at the park, but she accepted they may have been drinking alcohol. She believes someone call "Matt" drove her to Fanny's. 9. Once at Fanny's she met up with SH and LS, but she did not know those two girls very well. She was texting MS during the night. The complainant cannot remember the first time she spoke to him that night, but she wanted to meet up with him, but believes he was busy with other friends. The complainant recalls lining up outside Fanny's to get in and possibly paying a cover charge to get in. The complainant does not remember leaving Fanny's for any reason and accepted the CCTV shows her leaving about 3.05am. 10. The complainant gave evidence that she usually carried her licence and bank card in her handbag – rarely keys - but she was not sure if she used cash or card to pay for drinks that night at Fanny's. Her evidence was that she did not remember going anywhere else after being at the park near her old school and arriving at Fanny's. She knew what work a "glassy" did at a pub or at a bar. 11. The complainant was taken to a series of text messages between herself and MS but while she acknowledged they were her messages; she had no recollection of sending the messages. The complainant accepted she tried calling MS at 2.20am and sent a message to someone called ED, although she could not recall why. She spoke to MS at about 2.30am while at Fanny's and quite intoxicated. 12. The complainant had no memory between leaving Fanny's and waking up in Civic Park. The complainant stated that rather than her memory fading, she has always had a gap in her memory. She could not recall how she got from Fanny's to Civic Park and the complainant was not sure how long it would take to walk from Fanny's to Civic Park. 13. The complainant confirmed that at 3.41am she called MS telling him that she was in the park with SH and LS and her friends were going home with two men. The complainant confirmed in her evidence that she believed her attacker was broad shouldered, around 20 years of age but she could not describe his height or the pants he was wearing. She confirmed that she did not recognise her attacker and did not remember his hair colour or what he was wearing. The complainant was cross-examined about her 2022 police statement taken by Detective Senior Constable Ben King, which took her one to two hours to produce. She said the statement was given in the context of being told by police about a "development" in the case but she did not remember when she heard about the accused's DNA being identified. 14. The complainant was cross-examined about her evidence that she had been burned by a cigarette during the alleged assault. Her evidence was that the lit end of the cigarette had made contact with her lip and it was held there, although she does not know for how long. She does not recall anything about it other than it was painful. 15. With respect to the bite mark, the complainant believed it was to the left hand side of her neck and that it was a "full on bite", although she could not recall its duration. With respect to the intercourse, this occurred for a couple of minutes and then after screaming, the attacker ran away. She recalled running to hide in the tree but did not remember after how long. The complainant said she fixed her clothes up first, then went up a fig tree and called MS. She told him, "Someone raped me" but could not remember saying anything else. MS then came from Raymond Terrace with his parents to collect her. The complainant could not recall who arrived first at Civic Park – MS or the police. She was taken through her conversation with MS. She did not remember saying "don't tell my parents I will be in so much trouble." The complainant believed the call with MS probably ended because of the phone plan she had, which I infer means she ran out of credit. 16. The complainant conceded it was possible she did not speak to the police officer Jason Freney at the park, but sometime later. She did not remember MS giving her a hug at the park, but remembered him arriving with his parents and possibly his sister and being taken to the hospital where her mother was waiting. She could not recall what she told MS about the incident at that time. 17. The complainant was asked about her examination at the hospital and the photographs that were taken of her. The complainant confirmed her evidence that her friends LS and SH were at the park with her and that her attacker was Caucasian. There were lights in the park, but it was dark. She could not remember if police asked her to look at text messages between herself and MS at the time and she could not check them because she has changed mobile telephone multiple times since 2012. The complainant did not remember if police returned her skirt and underwear to her. She also did not remember dealing with a Dr Hamilton at the hospital nor anything she would have told her, but she does remember being examined by someone. 18. The complainant was shown a document which became Exhibit C. This was a document generated by the hospital concern the possible release of the complainant's clothing for examination by police. The complainant agreed that she had signed the document and that she had signed it to the effect that she did not want her clothing released for analysis. The complainant's evidence was that that was a mistake and that she did not realise that was the effect of what she was signing. The complainant said that she had intended to give consent for the clothing to be released. She did not accept that the document was very clearly worded. 19. The complainant was then cross-examined again about her recollection of how events unfolded in the park and who she was with and who she spoke to from the police. The complainant recalled speaking with police on 4 May 2012, but she did not remember what she said to them. She stated that she had recently looked at the CCTV stills. She was taken to Exhibit D, being a notebook statement and agreed she again spoke to police, this time on 25 July 2024. 20. The complainant was asked whether she knew a person called Joshua Fillipo and said that she did not know who that was. The complainant accepted that she spoke to some people in the queue outside of Fanny's who were possibly Tongan and was asked about Exhibit E, which is still photographs of the complainant entering Fanny's. The stills and video of the CCTV, being Exhibits 3 and 4 respectively were also shown to the complainant and she was asked a series of questions about who she recognised – including herself – in the images. The complainant recognised herself in the photographs and agreed she might have had her hand stamped or been asked to show identification before entering Fanny's. The complainant was cross-examined about Exhibit F which contained further still photographs of the complainant entering, moving within and ultimately leaving Fanny's and she agreed that it did not appear that she leaves with SH and LS. 21. During re-examination, the complainant explained that the reason she did not tell MS everything about the attack immediately was because she was uncomfortable about exactly what happened. With respect to Exhibit C, being the form she signed about the non-release of her clothing items to police, she stated that she may have signed the wrong spot because she was not used to signing forms and was still in shock. She believed she was giving police the consent to use the specimens. The complainant gave evidence that while she signed the form, it was not her writing on it. MS 1. MS appeared in Court to give evidence, but his evidence in chief was provided by way of his statement to police, which became Exhibit 5. He was not cross-examined. His evidence was that he was in a relationship with the complainant for around 2 years and 5 months as at 2 May 2012. That night he had been drinking with a few of his friends at New Lambton and at about 11:30pm, he received a text message from the complainant that read, "are you at wests?? Ring me off someone elses phone? Love you xxo". MS then called her using his friends' phone. During that conversation, the complainant told him that she had been drinking and that she was out with friends and she had gone into town. At 12.50am on 3 May 2012, MS received a text message from the complainant. It read, "At Fannys!! Kill me hahah". 2. At 1.50am, the complainant sent a text message that read, "Miss you xxo". At 2.05am, the complainant sent a text message that read, "Fuck I wish you were here xxo". At 2.10am, MS received the identical message. At about 2.20am MS was driving home from Wests. He noticed that the complainant was calling him on the phone, but he did not pick up. Shortly after, MS's friend received a text message from the complainant asking if they were home safe and the friend replied to her that MS will call her when they arrived home in two minutes. 3. At 3.41am, MS received a call from the complainant. At that time, she described being in a park with her friends SM and LS. The complainant sounded very drunk to MS, but he could still understand her. She told him she was going to get a taxi as soon as she got off the phone. She also said that her two friends were taking two men home with them. 4. At 3.57am, MS received a call from the complainant and conversation took place. For the purpose of setting out the conversation I have not referred to the parties' names, although I note they were used during the conversation. The conversation began with the complainant stating, "I need you". She repeated this a number of times. MS responded, "Calm down. What happened?" He repeated this several times. The complainant said, "A guy has scared me. I really need you". He said, "Get back to the main road. Go somewhere safe". The complainant then said, "Someone raped me". MS said, "What did you say?" The complainant said, "Nothing. I just need you". MS said, "What did you just say?" and he kept repeating this. The complainant said, "Some guy has followed me and scared me and I am hiding in a tree". 1. MS then woke his family and told them that the complainant had just been raped, and he asked his family to drive him to Newcastle. While this happened, the complainant was still on the phone. The conversation continued, with MS asking, "What did you say? Did someone rape you?" The complainant responded, "Never mind. Don't tell anyone, I don't want to get in trouble." MS told the complainant that he had told his parents and they are now on their way to pick her up. The complainant said, "I can't believe you told them. You fucked everything. I'm going to be in so much trouble now". MS said, "[Complainant], I am going to call your mum". The complainant said, "Please don't, I will be in so much trouble". 1. Due to the complainant's phone plan, the pair ended the call and MS called the complainant again using his mother's phone. Around this time, MS's mother contacted the police. During this call, he told the complainant not to move, then the complainant said, "Oh my God, is that ambulance for me?" then, "Is that cop car for me?" 2. Upon arrival at the scene, MS observed the complainant to be surrounded by ambulance and police officers. MS asked the complainant, "Are you okay? Did he hurt you?" to which the complainant responded "I'm okay. It only went in a little bit". 3. MS's father then drove the complainant to the hospital in the car with his mother and sister. Just prior to leaving the hospital, the complainant said to MS, "I'm supposed to enjoy it. It isn't supposed to be painful. He forced it in. He moved a little bit. I then kicked him off. It was really small. He put his disgusting bits near me. It's not supposed to be like that". SH 1. SH was a friend of the complainant and LS as at 2012. As at May 2012, she lived in Nelson Bay. She remembers going out on 2 May 2012 and was staying at the Albion Hotel in Wickham, which was a common thing to do if she and her friends were having a night out in Newcastle city. She left the Albion Hotel at some point and went to Fanny's. She remembered having a drink at the bar with LS and the complainant, but that is all she can remember until she woke up in a bathroom toilet cubicle with LS breaking down the bathroom door. LS took her back to the Albion Hotel in a taxi. 2. SM did not believe she had that much to drink. She does not remember what time she left Fanny's. She did not see the complainant after she left the cubicle. She recalled speaking with the complainant the next day, but there was no evidence as to what was discussed. 3. During cross-examination, SH stated that she could not remember what the complainant was drinking at Fanny's. She recalled the complainant arriving at Fanny's by herself but could not remember if she was already there when the complainant arrived. Her recollection was that she left while Fanny's was still open. She described it as a busy night, with lots of people inside. She could not remember seeing the complainant smoking. She could not remember if she had been anywhere else that night. SH was shown the CCTV footage, Exhibit 4, and believe she recognised the complainant in footage at 3am inside Fanny's. She remembered speaking with a male police officer after 3 May 2012, but not the conversation. She was confident she did not leave Fanny's with the complainant. LS 1. LS confirmed that she knew the complainant from school. On the night of 2 May 2012, LS confirmed that she went to Fanny's Nightclub. She attended Fanny's with SH. LS stated that she believed she saw the complainant that night, although her recollection was not entirely clear. She did not recall seeing the complainant elsewhere that evening or remember the specific time she left Fanny's. She mentioned that she likely left with SH but could not recall any additional details about the departure. 2. LS stated that if it was a Wednesday, it would have been a student night at Fanny's. She confirmed that she was drinking alcohol that night and described herself as "probably pretty drunk." She noted that Fanny's was typically her last stop on such nights, which might have contributed to her lack of clear memory. After the night in question, LS had not seen or spoken to the complainant. 3. LS recalled receiving a phone call the following day from a police officer, though she could not remember the officer's name. She described the conversation as not particularly detailed and said she did not fully understand the situation at the time due to being "young and stupid". It was only two years ago, during a call from DSC Ben King that she became aware of the specifics of the allegations. LS was unable to provide details about the duration of the initial phone call with the police officer and reiterated that she did not recall much about that conversation. 4. The following is the evidence from the cross-examination of LS. She confirmed she went to high school with the complainant for years 11 and 12 and was present at Fanny's on the relevant night. She estimated that in May 2012, she was turning 21 or 22 years old, and she did not know the complainant's exact age, other than that they were in the same year in school. She stated that she was not particularly close with the complainant. She did not maintain close contact with the complainant after school and did not know she was studying at the Conservatorium. She confirmed that she knew MS as they went to school together and that he is the husband of the complainant. 5. LS could not recall if she had been out drinking with the complainant before or if the complainant was smoking on this particular night. She also did not remember seeing any specific people smoke or any details about the nightclub's layout, CCTV, or its amenities. LS recalled Fanny's being busy and packed on student nights but could not confirm specifics like the closing time or the presence of an ATM. She noted that she might have been at Fanny's more than once but could not estimate how many times. She confirmed that on nights out she usually drank vodka and was likely very drunk on 2 May 2012. 6. Regarding her departure from Fanny's, she stated she would have stayed in town at a hotel, probably The Albion, because she stayed there frequently with SH. LS would have likely stayed with SH in town rather than travel back to Shoal Bay, where she was living at that time. 7. The cross-examination of LS involved her watching portions of the CCTV footage of Fanny's around the early hours of May 3, 2012. The process involved reviewing footage from different cameras, both inside and outside the venue, with LS being asked to identify herself, SH, the complainant, or anyone else she might recognise. LS struggled to identify anyone clearly, mentioning that the footage was pixelated and difficult to discern. She could not confirm if any of the people passing through the area were familiar. 8. With respect to the external cameras of Fanny's, LS was asked to look for specific individuals, including herself and her friends. She attempted to identify a woman she thought might be the complainant but couldn't confirm due to the low quality of the footage. Despite repeated reviews, LS remained uncertain about identifying herself or her friends, mainly due to difficulty distinguishing features. 9. LS was able to identify the complainant, at time stamp 00:19:55 showing the complainant walking into Fanny's. LS was unable to identify herself or SH from the footage. She also confirmed that the limited footage did not show herself or SH leaving Fanny's with the complainant. LS recognised the complainant in one segment at 3:05:01. Detective Senior Constable Ben King 1. Detective Senior Constable King gave evidence on three occasions, but for the purpose of this summary, it will be condensed into one. DSC King took over as the officer in charge of the matter in July 2022. The previous officer in charge was DSC Freney. Several documents were tendered through him from other officers involved in the investigation, including Crime Scene Officer SC Lee Whiting, but DSC King had no involvement in the early investigation of the matter. He was cross-examined at length about which police cars attended at Civic Park on the morning of 3 May 2012. 2. He confirmed that SC Lee Whiting was the crime scene officer and that he had communicated with SC Whiting, receiving an initial report dated 13 May 2024. This report was marked as Exhibit 8 in the trial. The photographs taken of Civic Park from 3 May 2012 was marked as Exhibit 9 in the trial. A further report prepared by SC Whiting dated 13 July 2024 was tendered as Exhibit 10, with some flagged objections. 3. DSC King noted that SC Whiting was unable to appear at trial due to surgery for his hip, as indicated by a medical certificate. A bundle of material from DSC King, including various statements, reports, and notebook entries from multiple officers, was tendered as Exhibit 13, with some flagged objections. 4. DSC King contacted LS on 12 October 2022, who had no recollections of the night in question. He also spoke with SH, who recalled being at Fanny's and leaving with LS but could not remember any useful additional information. By this time, DSC King had been informed that a DNA profile of the accused had been received. On 11 October 2022, he interviewed and arrested the accused, advising him that the matter related to an alleged sexual assault on 3 May 2012 in Civic Park, Newcastle. The accused chose to exercise his right to silence. 5. DSC King spoke with Dr Alison Hamilton on 30 July 2024. He learned that she had retired and was frail due to failing eyesight and hearing. Consequently, he contacted Dr Singh to provide evidence about what Dr Hamilton had observed and done in May 2012. 6. Tendered via DSC King was a bundle of 13 different document from the brief which became Exhibit 13. One of the documents was the statement dated 18 October 2022 from Detective Sergeant Jason Freney. DS Freney was the initial officer in charge of the investigation. The statement refers to SC Whiting attending John Hunter Hospital and taking a swab from a mark on the complainant's neck and photographs. He sets out his investigations in speaking with MS, SH and LS. It states that both SH and LS told him they did not leave Fanny's with the complainant, so he did not take statements from them. DS Freney stated that on 4 May 2012 the complainant attended at the police station, but she told him she did not wish to make a statement at that time. Importantly, at para [12] he stated that on 4 May 2012 he attended at Fanny's and collected its CCTV footage. He then conducted a canvas of the surrounding shops and residences in an attempt to obtain further CCTV, but none was available. The case was suspended on 8 May 2012. 7. Exhibit 13 also contained COPS entries regarding the allegations. The entry at page 5 notes that the complainant referred to both a bite mark and burned lip. The record refers to the DNA swab from the complainant's neck as matching the accused. It notes that as at 4 May 2012 she had not yet signed the release form for the SAIK kit, even though she had undergone the tests. Page 6 of the COPS entry states that: "Sometime after 3am the victim has left the nightclub, in company with known associates, walking along Hunter Street, into Auckland Street, where they have arrived at Civic Park. While at the park she commenced talking with a male, whom she does not know. She is unaware if her associates knew the male and if he had been at the nightclub with them. The victim has for some reason been left alone with the male. It was during this time that the POI has assaulted the victim, removed a tampon from her vagina and attempted to penetrate her vagina with his penis. The victim is unsure if penetration actually occurred, although she did feel the POI's penis at the entry of her vagina. During the course of the assault the POI has bitten the victim on the neck." 1. DSC King was asked about two documents in Exhibit 13. He was asked about page 35 of document 6, which is the roster from 3 May 2012, he confirmed that the letters NCC18 and NCC17 refer to the cars allocated to the officers for that shift. He also agreed that in the CAD records, police radio communications use the NCC sign numbers rather than officer names. On page 47 of Exhibit 13, where Detective Jason Freney's name appears with the note "Investigation duties on call" and the handwritten text "recalled" with "0700" crossed out for "0500," DSC King confirmed that this indicates Detective Freney was called to duty at 5 am. DSC King understood that Detective Freney did not attend Civic Park at the time the complainant was there but became the officer in charge in 2012. 2. DSC King confirmed that in the CAD records, "on scene" generally indicates when vehicles arrived at Civic Park, and "back on" denotes when they left. He did not know who first spoke with the complainant at Civic Park but confirmed that a call was made to the central triple0 number at 4:09 am. The informant was identified as the complainant's mother-in-law. He also confirmed that "INFTS" is informant's son, and explained the records to mean, "is on the phone to his girlfriend who is at the address". When suggested to him that the CAD records did not appear to be strictly chronological, he agreed with this observation. 3. DSC King was asked about NCC12, a vehicle he could not recall offhand but was identified as a supervisor's vehicle, likely driven by a sergeant. The message from NCC12 in the CAD, asking if the person of interest was smoking, indicated that a broadcast on the radio from the vehicle was made. Additionally, a message from NCC18 indicated the vehicle was following an ambulance to John Hunter Hospital and instructing staff to prepare a SAIK kit and counsellors. This suggested that by 4:48 am., the complainant was on the way to the John Hunter hospital. He agreed that an entry from NCC12 at 4:14 am., indicating "With her now," suggested that the officer in that vehicle was with the complainant at that time. DSC King agreed that 4:14 am was the earliest time any vehicle arrived at the scene, and based on the records, NCC12 was likely the first to speak with the complainant. 4. DSC King confirmed that multiple subpoenas had been issued throughout the proceedings, and he provided documents including the "Sub Sampling of Biological Material" which was marked as Exhibit K and the EFIMS exhibit timeline which was marked as Exhibit L in the trial. He confirmed that Detective Weathersbee, is the detective who attended the John Hunter Hospital. He acknowledged that the underwear and skirt were destroyed due to the victim's decision not to proceed with making a statement. It was also noted that in an email dated 9 May from Detective Jason Freney, he stated that the complainant's mother has requested the police to no longer contact the complainant. DSC King also confirmed that no information was available in Detective Freney's notebook, and he could not locate his duty book. He stated that there are varying reasons why sometimes the notebooks and duty books are not handed back to the command, and this was not tracked, traced or recorded. He also confirmed that a different email system was used in 2012 and he was unable to access that system, as such, there are no emails available from 2012. 5. DSC King noted that SC Whiting's scene attendance notes were produced, but his official police notebook, referenced in SC Whiting's statement, was still being sought. He indicated that a subpoena from May 2023 requested records from scene-of-crime officers, including SC Whiting's notes, and acknowledged that there was an ongoing effort to locate these notes. 6. DSC King was asked about efforts to verify the accused's whereabouts between these times. He noted that despite the availability of telecommunications and banking records, no such inquiries were made, and telecommunications data from 2012 was no longer available. At paragraph 13 of MS statement, marked Exhibit 5 in the trial, it says this, "Shortly after, my friend, ED, received a text message from [the complainant] asking if we were home safe. He replied I would call her when we arrived home in two minutes", DSC King confirmed that no inquiry was made in relation to ED in relation to his recollection of the night. 7. He confirmed that while iAsk, an information portal, could have been used to request various records, no such requests were made. Further, he stated that no telecommunications data was obtained through iAsk as the data does not store data for over 5 years. He also made no inquiry with any bank to establish where the accused were at the night. DSC King conceded he also did not make any inquiry on MS's telecommunications data. He also did not make inquiry to check whether MS had the same phone he had in 2012. In relation to the complainant's phone, he stated that he may have checked whether the complainant had the same phone but was uncertain if she did. 8. DSC King did not request relevant telecommunications data or investigate potential CCTV footage from Fanny's. He also did not attempt to contact Fanny's regarding its opening hours or lockout laws. Furthermore, no statements were taken from other witnesses mentioned by the complainant. The detective did not pursue statements from the complainant's parents or other potential witnesses, nor did he request hospital records beyond those provided by SAIK. 9. DSC King later acquired a floor plan of Fanny's from September 2012. He accepted that while some police procedures and document reviews were conducted, several potentially relevant investigative steps were either not taken or lacked follow-up. Lastly, when asked again about the issues of Officer Weathersby's notes, DSC King confirmed that they were unable to find his notebook. He confirmed that he spoke to Officer Weathersby, however he could not remember anything about the incident. Sergeant Luke Smith 1. Sergeant Smith was formerly a member of the New South Wales Police Force and is now a serving officer in the Australian Army. He was one of the officers who attended at Civic Park on the morning of 3 May 2012. As at May 2012 he was the Newcastle Western Area supervisor, driving the vehicle NCC12. He assisted other officers at Civic Park, but other officers were already there by the time he arrived at the scene, by himself. As the supervisor he would attend incidents of a higher level. NCC14 was also in attendance, driven by Sergeant Tillock. 2. At the time he arrived at Civic Park police knew the incident involved a female and they knew to look for a female, but initially had no details. During cross-examination he was taken through the police CAD record, which summaries police movements and calls involving particular jobs and formed part of Exhibit 13. He recalled officers speaking to a woman, who he now knows to be the complainant and he remember her allegations of a sexual assault and a tampon being removed from her during the assault. He recalls Sergeant Tillock arriving on the scene and allowing him to take over while he examined the scene for items of interest. Sergeant Smith identified several found cigarette butts, and a tampon near the fountain. He called for a crew to come and deal with the items he found. He asked officers to guard the area until the crime scene investigators arrived. 3. He was cross-examined about entries on the CAD record and explained that he gave his police statement in July 2024. He explained that he, "most likely" did not make any notes about the matter, in particular, notes of conversations with witnesses because the protocol is that the police conducting the conversation makes notes, not those watching. He was not part of the conversation with potential witnesses. The incident occurred within Acting Sergeant Tillock's sector, so the investigation would be his responsibility. The CAD records indicate that he arrived at the scene in the vehicle NCC12 at 4.14am. He arrived at the scene at the same time as vehicle NCC18 and those two cars and officers were the first at the scene. After Sergeant Smith left the scene, he had no further involvement in the investigation. Senior Constable Stephen Maloney 1. Senior Constable Maloney is now part of the Water Police, based at Port Stephens. He recalls making a statement about the incident at Civic Park on 3 May 20122 and attending at Civic Park. His evidence was that the incident the subject of the investigation was in the south west part of the park, near the fountain. His evidence was he was working with SC Woodcock and they attended the scene in police vehicles NCC18 and then later left in NCC37. They arrived at 5.50am and they were there to relieve the officers who were preserving the crime scene. Those officers were SC Renee Wood and Acting Sergeant Tillock. 2. He observed four cigarette butts and a tampon at the scene and he covered the objects in order to protect them as it was beginning to rain. He covered them with some latex gloves. He was conscious to cover the items with something he perceived to be clean. His evidence was that he did not touch the cigarettes or tampon. While he was there, SC Whiting attended and other officers arrived. He was handed four numbered exhibit bags by SC Whiting. The bags were described them as "1 x amphet", "1 x can", "1 x tampon" and "1 x lolly box". He also prepared a sketch plan of the area, which became Exhibit 15 and sets out where the items were located prior to be seized. 3. During cross-examination SC Maloney stated that the complainant was not at the scene at the time he arrived. He conceded he may have made a mistake about what vehicle he was in and what time he arrived at the scene – it may have been earlier at 4.15am. He gave evidence that SC Whiting arrived on the scene fairly quickly after he had arrived, perhaps 20 minutes later. He performed a hand-over to SC Whiting and explained how he preserved the items but does not recall the detail of the conversation. He gave evidence that he put a crime scene barrier in place, although he cannot remember who he spoke to in order to do that – it was put there after speaking with someone. 4. SC Maloney placed some latex gloves and a box over the items to be seized in order to keep them as clean as possible. He later saw SC Whiting move those items. He gave evidence that as far as he was aware, there was no video taken of the scene. SC Maloney's statement was also tendered and became Exhibit 15. It included his police notebook. Senior Constable Lee Whiting 1. SC Lee Whiting was unavailable to give evidence in person during the trial, but two of his signed statements were tendered by consent, specifically, Exhibit 8, being an 11 page statement dated 13 May 2024 and Exhibit 10, being a 92 page statement plus annexures dated 13 July 2024. Exhibit 9 were photographs of the crime scene. Exhibit 12 was a Crime Scene Examination Summary he had prepared. 2. Exhibit 11 was the EFIMS Crime Scene Attendance Job record for SC Whiting. It recorded the "job" as being logged at 4.09am on 3 May 2012 and his attendance at 6.20am. It refers to him dealing with SC Maloney. It refers to one tampon, four samples from cigarette butts, one resealable plastic bag containing a crystalline substance being seized, one box of Nerds candy and one squashed Red Bull drink can. The report noted his subsequent attendance at John Hunter Hospital to speak with the complainant. Reference was made to the complainant having a graze on her left elbow and shin, bruising on her left knee and red marks to her back area along the spine and on her neck, although he does not describe the side of the neck. His lay description of the mark is that it was a bite mark. 3. Exhibit 8 sets out SC Whiting's background and experience. He had been a forensic investigator with the NSW police between 2009 and 2013 and had relevant qualifications to crime scene examination and biological evidence recovery obtained through the NSW Police Force and via the Canberra Institute of Technology. His expertise and ability to provide expert evidence was not challenged by the accused. 4. Exhibit 8 sets out that he attended at Civic Park, Newcastle arriving at 6:20 AM on Thursday 3 May 2012. It was raining heavily at that time. The park was noted to contain a fountain at the southern side. There was a small, grassed area located on the northern side of a paved border around the fountain. He observed crime scene barrier tape had been erected around the small, grassed area as well as a path on the eastern side of the fountain. He conducted an examination of the grassed area using what is known as a forensic light source to detect the possible presence of semen. It returned a negative result. 5. His report noted that prior to his attendance at the scene, other officers had already placed some paper exhibit bags and a disposable glove box and several disposable gloves over potential items of interest. This was done in order to protect them from the rain. These items were located near the Civic Park fountain. SC Whiting proceeded to place markers around the identified items. 6. Marker A was placed adjacent to a tampon which had been identified on the grass. Marker B was placed next to a Winfield brand cigarette which he subsequently collected a Swatch from. Marker C was placed next to a small resealable plastic bag. Marker D was placed next to a partially consumed Winfield brand cigarette. A Swatch of that cigarette was taken. Marker E was placed next to a box of Nerds candy, Marker F was placed next to a cigarette butt of an unknown brand. A Swatch of that cigarette was taken. Marker G was placed next to another cigarette butt of unknown brand. Marker H was placed next to a crushed and empty "Red Bull" can. 7. Photographs of these markers set out in Exhibit 9. At 7:15am on 3 May 2012 he signed the exhibits over to SC Whiting. At 8:00 am he attended the John Hunter Hospital for the purpose of undertaking a forensic procedure on the complainant. That occurred in the presence of her mother who was acting as a support person. He described the complainant as a person of thin build with blonde hair. He observed six injuries to her body. 8. In summarising this aspect of his evidence I note that pursuant to section 136 of the Evidence Act 1995 (NSW) aspects of his evidence are used for a limited purpose, specifically, although SC Whiting uses certain terminology such as abrasion, bruise and bruising, it is agreed between the parties that these are medical terms and SC Whiting's use of those terms does not reflect, necessarily, an accurate use of them. 9. The injuries described by SC Whiting were a small abrasion on the left elbow of the complainant, a small bruise to her left knee and left shin, bruising along the spine and bruising on the right side of her neck, which appeared circular or semi-circular in nature. There was a swab taken of this area. This swab was subsequently sent to what was then referred to as the Division of Analytical Laboratories (DAL) for analysis. A bruise was identified on the right foot of the complainant, although I note that the Crown no longer relies upon this as an injury supporting the allegation of the reckless infliction of actual bodily harm. 10. Exhibit 10 is largely a question-and-answer document with the questions being posed to SC Whiting by the lawyers for the accused. Most of it relates to police crime scene methodology and practice. The answers were provided based on his memory and his crime scene examination notes and other contemporaneous records. 11. SC Whiting arrived at Civic Park crime scene at 6.20am on 3 May 2012 and commenced his examination immediately, completing it at approximately 7:15 am. It was raining when he arrived at the park as well as during the entire period of his examination of the crime scene. At the time he attended the location he knew where to go, and the nature of the alleged offence being investigated involved a female victim and a male offender. He was told the complainant had gone to John Hunter Hospital to undertake a forensic procedure. 12. At the time SC Whiting attended the scene, he recalled speaking to another officer about the crime scene tape that had been erected, asking why that particular area had been sectioned off and he was told the incident was alleged to have occurred within that area. His information about this topic was limited, but his understanding was supported by the presence of the used tampon in the area. SC Whiting stated that that is part of the standard operating procedures when it came to assessing sexual assault scenes that he would search for fibres, hairs, bodily fluids, personal effects, fingerprints and evidence of forced entry or tool marks. He used the "crime light" which is designed to pick up certain biological materials in the light. He would pass the light over the relevant area while wearing special goggles which would detect the presence of any of the targeted substances. Semen can be detected in scenes using this line for periods of two hours or longer but it's detection would rely on many factors including environmental conditions, the amount of material deposited and contamination. 13. Apart from the special crime light there was a fixed metal lamppost and lamp located on the eastern side of the path adjacent to the area that had been cordoned off. There were other metal lamp posts and lamps around the park at the time of his examination between 6:20 am and 7:15 am, however, the sun was starting to come up and the fixed lighting had minimal impact if any. 14. Prior to his attendance at the scene, he was not told about the presence of cigarettes or cigarette butts at the crime scene, the relevance of the tampon, a crystalline substance that was located on any clothing items or any other items that were ultimately seized at Civic Park which became exhibits. He did recall asking an officer about the presence of some gloves, a brown bag and an empty box of gloves covering items which were thought to be relevant to the investigation. SC Whiting was informed that these make-shift covers were placed over the identified items to protect them from the rain. SC Whiting did not know which police officer took this initiative. 15. The photographs he took at Civic Park were between 6:30am and 6:40am. SC Whiting believes that all items of interest were seized as potential exhibits. To the best of his recollection all items which had potential DNA and fingerprint evidence were collected. SC Whiting set out the general practice of bagging exhibits and noted that when it came to packaging items such as these cigarette butts they would be packaged differently because they were to go for analysis. The cigarettes would be sampled by way of a "swatch" being taken from the filter end. His report details how the record keeping was performed for the exhibits and how swatches were taken from the cigarette butts including the fact that the swatches were taken from the tip of the cigarette butt, five millimetres of the filter paper closest to the end of the cigarette bar. This was done in accordance with the subsampling of biological material standard operating procedures which ultimately became Exhibit K. 16. SC Whiting did not specifically recall which protective clothing he wore during the examination of the crime scene but rather he had to rely on general practice and his personal practice. In the context of conducting the crime scene examination he stated that it was not his practice to handle exhibit items or touch surfaces unless wearing appropriate personal protective equipment which was disposable gloves, disposable masks, disposable shoe covering and overalls. He considers it would be likely he would have changed his gloves during the examination as it is common practice to do so during crime scene examinations. 17. SC Whiting's statement also refers to the fact that he attended at John Hunter Hospital for the purpose of undertaking a forensic procedure on the complainant on 3 May 2012. He arrived at the hospital at 8am alone. The complainant's mother was present while the forensic procedure was undertaken upon her. He recorded in his notebook that the complainant had a graze on her left shin and elbow, red mark along her spine of 30cm length, a bruise on her right foot and a "red mark on front right of her neck that appears to be bite mark". He swabbed the area in case it had saliva which could be tested for DNA. 18. He took photos of the complainant and a swab from the right side of her neck where the complainant indicated. The images were taken between 8.07am and 8.15am. He did not take a version of events from the complainant. He formed the opinion that the red marks were a bite mark based on their size and shape. He was not wearing any of the PPE he had been wearing at the park when he was at the hospital. 19. He was aware that a black skirt and underwear had been collected from the complainant from another officer. He did not seize it. As far as he knows, no forensic testing was done on the complainant's clothing. He does not know why. He was not involved in the taking of SAIK swabs. 20. He gave evidence that four items which had been seized from Civic Park were destroyed: the tampon, the small resealable plastic bag, packet of Nerds and the Red Bull can. He agreed that the can was potentially suitable for fingerprint examination once dry, but this did not occur. The small resealable plastic bag, the tampon, the Nerds box and the Red Bull can were never tested. Dr Shalu Singh 1. Dr Shalu Singh is a forensic examiner with the Newcastle Sexual Assault Service. In this role Dr Singh performs medical and forensic examinations of people presenting to the service having allegedly been sexually assaulted. Her evidence set out her qualifications and experience. Dr Singh prepared a report dated 5 July 2024, which was based on the contemporaneous examination of the complainant by the accused by Dr Alison Hamilton and Dr Hamilton's report. 2. In her report, Dr Singh referred to the fact that in Dr Hamilton's report reference was made to the complainant having a sloughed area on the lower left lip. Dr Sing explained that a "slough" is dead tissue or dead non-viable tissue which is found in some wounds due to inflammation and that that such a wound can be caused by a burn or possibly an ulcer. 3. Dr Singh defined the term "abrasion" as a superficial injury involving only the outer layers of the skin. Abrasions are produced by a combination of pressure and movement applied simultaneously to the skin that can result from a blunt, a sharp or rough surface. Dr Hamilton observed a fresh abrasion to the complainant's left knee. A "bruise" was defined as an area of bleeding within or under the skin caused by blunt force trauma. The report also defined "tenderness" and "swelling". 4. During cross-examination Dr Singh was asked to define a "burn". Her evidence was that a burn can be chemical or thermal. When it is thermal it is caused by high heat, which can damage the skin. Superficial burns may only damage a superficial aspect of the skin while a deeper burn may go down to the skin's dermis. Dr Singh was cross-examined about first, second and third degree burns, the causation and treatment of burns, and the progression of a doctor from obtaining a university degree, being an intern at a hospital, then a resident, then a registrar, then becoming a specialist. Dr Singh explained her experience with burns over a period of 21 years, including while she was in the Indian army. Dr Singh explained that as part of her studies for a Masters degree in forensic medicine she was familiar with articles and research concerning cigarette burns. Dr Alison Hamilton 1. Dr Hamilton was the doctor who first examined the complainant when she presented to John Hunter Hospital on 3 May 2012. Dr Hamilton has qualifications as both a medical practitioner and specialist gynaecologist. As at 3 May 2012 she was an on-call visiting medical officer. 2. It was the agreed position of the parties that Dr Hamilton had retired and was unable to give evidence about her report. Dr Singh was, in effect, filling in for her. Dr Hamilton's report was dated 8 May 2012 and tendered without objection. It became Exhibit 16. The Adult Sexual Assault Protocol was tendered and became Exhibit 17. 3. Dr Hamilton examined the complainant between 3.30pm and 4.45pm on 3 May 2012, so 12 hours or so after the alleged assault. Also present was a psychologist. Paragraphs 7 to 10 set out complainant evidence. Exhibit 17 contained Dr Hamilton's handwritten notes to the same effect. 4. The complaint evidence recorded by Dr Hamilton was that at approximately 3:00am the complainant was at Civic Park with two girlfriends and two male friends. They had been to Fanny's for the evening where the complainant had drunk a considerable amount of vodka and raspberry drinks. She felt she was drunk. The five friends had been dancing near the fountain in the park and then her companions left to go home and the complainant was left by herself. 5. The complainant was going to call a taxi when she was accosted by an unknown man. Dr Hamilton notes the complainant told her she was very scared and wondering how she would escape. She describes the complainant telling her that her attacker had pushed a lighted cigarette into her mouth, burning her lower lip before she spat it out. He then pushed her onto the hard ground near the fountain, and pulled up her skirt, removed her underpants and attempted vaginal intercourse. There was no oral or anal intercourse and the complainant did not believe her attacker had ejaculated. He had covered her mouth so that she could not scream and held her down by the shoulder's. 6. The complainant ultimately did manage to call out for help and at that point the attacker ran off. The complainant telephoned her boyfriend who called the complainant's parents. The police attended the park and after interviewing her in the park recommended that she go to the hospital for an examination. Dr Hamilton states that at approximately 4:00am the complainant was seen in the emergency department of the hospital, but it was decided that before she could undergo a full forensic interview and tests that she should, in effect, go home and sober up. On that basis the complainant went home with her mother to rest before returning to the hospital that afternoon, which was when Dr Hamilton saw her. 7. Dr Hamilton observed that the complainant appeared calm and, in her opinion, gave a clear history of the event, although the complainant described herself as feeling "very shaky". The complainant became upset when questioned about the full details of the alleged assault. Dr Hamilton examined the complainant's head and neck and identified a sloughed area on the left side of her lower lip where, on the complainant's account, the lighted cigarette had burned her. Dr Hamilton observed a faint circular area of scratching over the right side of the complainant's neck, below the jaw. Dr Hamilton also identified a faint bruise on the upper aspect of the complainant's left breast and a 1 centimetre abrasion over the upper part of the back of her right arm. 8. Dr Hamilton observed over the complainant's spine some faint and tender marks where she had been pressed against the concrete and on her legs there were multiple superficial scratches over her left thigh and a 1 to 1.5 centimetre fresh abrasion in the left patellar region. There was also a bruise on the right foot, which the Crown does not now rely upon as part of its case. 9. The complainant's external genitalia were regarded as being slightly swollen and tender to touch. The Crown does not rely on this as part of its case and states that it is "neutral". There were routine forensic swabs taken. Dr Hamilton stated that the complainant's clothing and underpants were already with the police. They report also notes that the complainant signed forms indicating that these specimens could be destroyed within three months unless they were released to the police. Virginia Friedman 1. Ms Virginia Friedman identified herself as a senior forensic biologist at the New South Wales Forensic and Analytical Science Service (FASS) formerly DAL, where she has been employed since 2003, and with over 30 years of experience in forensic biology. It was accepted between the parties that she was a qualified expert to give evidence in relation to examining DNA profiles. 2. Ms Friedman prepared two reports for the court. The first report dated 14 May 2024 was marked as Exhibit 6. Ms Friedman's second report was dated 12 July 2024 and became Exhibit 7. The first report analysed the items received by FASS on 8 May 2012. 3. Ms Friedman analysed the cigarette butt sample from marker B. It contained DNA profile from at least three individuals with the major contributor to the mixture matching the profile of the accused, and a minor contributor to this mixture matched a profile of the complainant. There was an additional minor contributor, but due to its low level, it was not suitable for comparison. 4. In this report, Ms Friedman identified that cigarette butt sample from marker D contained DNA from at least three individuals, and the major contributor to this mixture matched the same profile as the accused, and a minor contributor to this mixture matched a profile of an unknown individual D. Individual D was subsequently identified as the complainant. Again, there was an additional minor contributor, but due to its low level, it was not suitable for comparison. 5. A third cigarette butt sample from marker G contained DNA from at least two individuals. The minor contributor to this mixture matched the accused, but the major contributor matched a profile of an unknown female, referred to as individual C. 6. A swab of the bite mark on complainant's neck was also tested for DNA. The major contributor to this mixture matched the DNA profile as the accused, with the minor contributor to this mixture identified as the complainant. 7. With respect to the second report, it was prepared after receipt by FASS of a buccal sample of the complainant and identified that the person previously referred to as individual D was the complainant. 8. Ms Friedman explained that the term "major contributor" refers to an individual who contributed a larger amount of DNA compared to the others in a mixture. She also confirmed that she followed standard procedures in her analysis and noted that while she could identify contributors to a DNA mixture, she could not determine how the DNA came to be on the object analysed. She confirmed that whilst hypotheses about the origin of the DNA could be made, proof was not possible. Ms Friedman noted that it is common to recover DNA from the skin surface or body parts during swabbing. She also acknowledged the term "shedders," referring to individuals who shed DNA in larger quantities from various sources, including their hands. 9. There was no cross examination of Ms Friedman. Evidence in the defence case 1. At the request of Counsel for the accused, and with the consent of the Crown, the usual order of calling defence witnesses was not adhered to, the convention being that the accused gives his or her evidence first. In this instance, to suit the availability of the defence experts, the two defence experts gave evidence before the accused. The first witness was Helen Roebuck. Helen Roebuck 1. Ms Roebuck is a forensic scientist who prepared an expert opinion which was tendered without objection and became Exhibit G. She gave unchallenged evidence detailing her experience and training and how it enabled her to engage in "activity level" analyses, where she could compare the likelihood of different scenarios resulting in particular DNA results. This included a relevant university qualification, on-going study within the field of forensic science since 2001 and experience working within the field. After setting out her detailed assumptions in preparing her report, and confirming the reliability of the FASS DNA sample analysis, and explaining the concept of mixed DNA profiles she then explained crime scene procedures and potential contamination. 2. Ms Roebuck's report explained that there are many ways in which DNA can be deposited within a crime scene or onto an item and that it is not possible to age DNA, in other words, it may pre-date the alleged event. Ms Roebuck also discussed investigator mediated contamination, which is the inadvertent contamination of the crime scene which can involve the introduction of the investigators' own DNA into the scene or transferring DNA from one part of the crime scene to another. She noted the importance of investigators to wear personal protective equipment. 3. Ms Roebuck was asked to comment on whether it is possible that SC Whiting inadvertently acted as a vector to passively transfer the accused's DNA onto either of the cigarette butts, or from one cigarette butt to another, to which she explained that for that to occur, he would need to relocate any amount of DNA from another surface bearing the accused's DNA. As the only DNA detected at the crime scene matching his DNA was the cigarette butts themselves, there is nothing supplied within the evidence that suggested SC Whiting has relocated DNA from another surface onto the cigarette butts. 4. In relation to whether it is possible for SC Whiting to have transferred DNA from one cigarette butt to the another, there was insufficient information available to her to ascertain whether sufficient precautions had been taken to minimise the risk of transfer of DNA from one cigarette butt to another, so she was unable to exclude it as a possibility. 5. Ms Roebuck stated in Exhibit G, that SC Whiting correctly describes standard procedures at a crime scene involving collection of DNA samples to involve the wearing of two pairs of gloves (with under gloves and over gloves). He also notes that fresh over gloves are utilised when needing to touch or collect something. This is accepted as best practice, but SC Whiting acknowledges that this information is from his memory of the incident rather than his knowledge of the procedures at the time. 6. With respect to the specific samples from Markers D, B, G and the swab from the complainant's neck, Ms Roebuck states in Exhibit G that with respect to Marker D, being a cigarette butt, consistent with Ms Friedman's conclusions, it is a mixed DNA profile, originating from at least three contributors. There is a major contributor to the DNA profile which matches the DNA profile of the accused, being at 64%. It was agreed that the complainant could not be excluded as a minor contributor, accounting for approximately 30% of the total DNA contained within the sample. A third contributor to the mixed DNA profile remains unidentified. 7. With respect to the sample of cigarette butt from marker B, it was again agreed that a mixed DNA profile, originating from at least three contributors, was obtained. The major contributor to the DNA profile is the accused, representing 77% of the sample. The complainant cannot be excluded as a minor contributor, accounting for approximately 17% the total DNA contained within the sample. A third contributor to the mixed DNA profile remains unidentified. 8. With respect to sample of cigarette butt from marker G, Ms Roebuck agreed with Ms Friedman that a mixed DNA profile originating from at least two individuals was obtained. There was a major contributor to the DNA profile, accounting for approximately 93% of the DNA contained within the sample. This major contributor is a biological female. The major contribution does not match the reference DNA profile of the complainant. It was agreed that the accused cannot be excluded as a minor contributor, accounting for approximately 7% of the total DNA contained within the sample. 9. With respect to the swab from the "bite mark" on neck of the complainant, Ms Roebuck notes there is some confusion as to whether the mark was on the left or right side of the complainant's neck and that there was no testing for the presence of saliva conducted, and it is unclear why an effort to determine the cellular origin of the DNA was not made. DNA analysis of the swab resulted in a mixed DNA profile being obtained. It was agreed that this DNA profile comprises of DNA from at least two individuals, with the major contributor to the DNA profile, matching the accused and accounting for approximately 93% of the DNA present within the sample. It was also agreed that the complainant cannot be excluded as a minor contributor, accounting for approximately 7% of the DNA present within the sample. 10. Ms Roebuck explained in Exhibit G that the depositing of DNA through touch is referred to as primary or direct transfer of DNA. The direct transfer of DNA refers to an individual directly depositing their DNA onto an item or surface. Touching an item is the most common example used, however coughing over an item, speaking in close proximity, or shedding skin cells onto an item also constitute direct transfer. The term "aerosol transfer" can also be used to describe coughing and speaking. Ms Roebuck stated that a number of studies have shown that, although skin cells are one source of DNA deposited by touch, other sources of DNA include cellular material collected on the hands from other parts of the body, including body fluids such as saliva and nasal mucus. 11. Ms Roebuck stated that it is possible for an individual to touch an item without their DNA being detected. This can be due to efficiency limitations of the targeting, collection, processing and interpretation methods applied, and/or loss during activities performed during and following the offence. The absence of an individual's DNA on an item should not be taken to support that they did not touch the item. The term the 'hidden perpetrator effect' describes this phenomenon. Further, that there has been significant advancement in the sensitivity of forensic DNA testing and it is now no longer possible to assume that a DNA profile is the result of direct contact. 12. Due to the sensitivity of modern DNA profiling, DNA can also be detected when it has been transferred indirectly via another person or an object. This is known as indirect DNA transfer. Many studies have demonstrated not only that indirect transfer occurs, but DNA can be transferred many times in a variety of ways. Experimental data has demonstrated that neither the quantity of DNA recovered nor the quality of the DNA profile obtained can be reliably used to determine the nature of deposition i.e. direct or indirect DNA transfer. This is due to transfer, persistence, and recovery of trace DNA on/from persons and/or objects being a highly complex and multifactorial process. 13. Ms Roebuck stated that the 'major contributor' to a DNA profile does not necessarily relate to the last person to contact the item, nor indicates they have had direct contact with an item. The amount of DNA transferred by a person is influenced by the individual's shedding behaviour. Individuals who consistently shed more DNA than others are classed as "good shedders" and individuals who consistently shed less DNA than others are classed as "poor shedders". 14. As well as shedder status influencing the amount of DNA that will be transferred to an item or surface, numerous other factors including pressure and friction applied during the contact, duration of the contact, activities performed before and after the contact, skin dryness, skin diseases, gender and age are known to affect the amount of DNA transferred through touch. The persistence of any biological material will be dependent on a range of environmental factors, including temperature, exposure to UV, rain, wind, humidity, and presence of micro-organisms on the surface. It is also dependent on its physical removal via actions such as wiping and washing. Wet or liquid biological sources have higher transfer rates than dry biological materials. 15. Ms Roebuck then considered the DNA on the complainant's neck, observing that it is not possible to determine how DNA was deposited. She then set out her instructions that the accused was an employee of Fanny's at or around the time of the alleged assault upon the complainant and that if he were employed as a 'glassy' at the establishment, there would be many opportunities for his DNA to be deposited into the environment, including upon surfaces and persons. This would include through direct and indirect transfer of his DNA. 16. The DNA of biological samples, including those assumed be deposited by handling, can retain sufficient quantity and quality to generate full DNA profiles for a significant period, even decades. Ms Roebuck stated that any background DNA from the accused present at Fanny's, along with DNA deposited within the nightclub on the night in question, would be available for transfer to other surfaces. This includes the possibility that other individuals at Fanny's picking up DNA from surfaces bearing his DNA and relocating it. Ms Roebuck reviewed the CCTV images and videos that the accused subsequently viewed in Court and used to identify himself. Ms Roebuck referred to her instructions that the complainant was in some of the frames, "in proximity with the accused at numerous points within the evening." However, Ms Roebuck conceded, none of the images demonstrated the pair in contact, or speaking to one another. 17. Ms Roebuck concluded that given both the complainant and accused were present at Fanny's on the evening in question, she could not exclude the possibility that DNA recovered from the complainant's neck, which matches the accused, was deposited via indirect DNA transfer. 18. Ms Roebuck considered issues surrounding what she described as "DNA deposition." Ms Roebuck explained that an analysis of "activity level" of DNA requires consideration of controlled studies and data. Where the studies were not specific to the scenario posed or the data inadequate, Ms Roebuck could opine about whether established principles of transference led her to the view that a hypothesis was impossible. In her oral evidence on the point Ms Roebuck stated that her knowledge of those principles meant she could, in certain cases, "lead us to determine that that's just not a viable version of events". Ms Roebuck could not, on the research and data available to her, assess probabilistically whether the accused's DNA was more likely to have been deposited on the complainant's neck by biting her or through transference. 19. In Exhibit G, Ms Roebuck stated that the complainant's underwear, tampon and vaginal samples may have provided probative information which was never obtained. The materials supplied to her do not contain any record of Dr Hamilton observing a bite mark or bruising on the complainant's neck. As there was no testing for possible presence of saliva or other biological fluids on the swab collected from the complainant's neck. Consequently, it is not possible to determine the cellular origin of the DNA from the swab. The statement of Ms Friedman does not consider how the DNA present on the neck of the complainant was deposited. Given the accused was present in Fanny's both prior and on the evening in question it is not possible to exclude the possibility of indirect transfer of his DNA to the complainant. 20. During her evidence in chief, Ms Roebuck was asked further questions about these topics, stating at one point that her language, "is not possible to exclude" is a reflection on the data available to her – something may be possible, but she cannot say how possible. The data did not permit her to give an opinion on whether it is more possible for the accused's DNA to be on the neck of the complainant through him being her attacker or through him being in Fanny's. 21. Ms Roebuck stated that it was possible to undertake tests for saliva. Those tests are very sensitive. Other biological fluids can also be detected. The absence of testing of information about the fluid on the neck of the complainant does not call into question the DNA results, which she described as "robust." 22. Ms Roebuck gave evidence that if there was an error in the use of the personal protection equipment at the crime scene, and the accused's DNA was on one item and the complainants on another, there could be cross-contamination via the crime scene officer touching or moving the DNA from one item to another. Ms Roebuck is also slightly critical of the SC Whiting's note taking and reliance on standard operating procedures rather than his notes. She observed some deviation from the best practice guidelines when it came to the recording of barcode of the DNA neck swab. Ms Roebuck could not give an opinion about how the DNA may have been deposited on the cigarettes, nor the sequence upon which the DNA was deposited. 23. Ms Roebuck agreed the sharing of cigarettes could lead to mixed DNA profiles being left on the cigarettes. Also, that if the accused discarded a cigarette at a location, and the complainant later came into contact with the cigarette, she would not be able to exclude the possibility that the DNA was placed on the cigarette well after the cigarette had been discarded. Ms Roebuck also agreed that if the accused gave a cigarette to someone, and that someone had direct physical contact with the complainant, coming into contact with the complainant could transfer her DNA onto the cigarette. 24. During cross-examination, Ms Roebuck accepted that she agreed with Ms Friedman's analysis of the DNA samples. She also accepted that there were no reports of crime scene officer contamination. Ms Roebuck stated that she saw no evidence of SC Whiting having contaminated the samples himself and, consequently, that provided her with some assurance that he was at least following some level of anti-contamination procedure. Ms Roebuck also accepted that there was no evidence that would indicate that SC Whiting had access to the accused's DNA and that this could have led to it being transferred from elsewhere to the crime scene. 25. Ms Roebuck gave evidence that the computer programme that does the analysis of the DNA at FASS requires only a small number of cells to obtain a DNA profile but that there are thresholds set so that it ignores very low level "peaks in the profile". This minimises the risk of the laboratory reading data that are not true pieces of DNA. Ms Roebuck gave evidence that pressure and friction is a factor which will influence the transference of DNA and the increased pressure and friction is likely to lead to greater transfer of DNA and that the mouth is a rich source of DNA, as are other wet or liquid biological sources. 26. Ms Roebuck explained that the filter end of the cigarette is targeted for testing because an individual will have placed it into their mouth. She confirmed that the cigarette butts which were analysed as part of this case had been smoked. Ms Roebuck stated that DNA will degrade overtime and it will degrade when it is exposed to weather elements. The amounts of DNA in terms of a percentage cannot be utilised as a guide as to how the DNA got onto a particular surface as there are so many variables, including whether the parties are "good shedders." 27. Ms Roebuck was asked to consider whether the DNA of the accused was on the neck of the complainant from an unknown source, for example, as a result of an "aerosol application". She explained that she was not hypothesising a particular root of transference in her evidence it is simply that she could not exclude the possibility of indirect transference given the complainant and the accused were both present at Fanny's, neither could she give any indication of how likely it is. In answer to the question of whether in circumstances where there are a number of people in close proximity to each other why there are not more DNA profiles on the complainant's neck, Ms Roebuck stated that that was a valid point, noting that there are no other significant contributions to the neck of the complainant. 28. In re-examination Ms Roebuck was asked to consider what other rich sources of DNA exist. She suggested biological fluids such as saliva and blood but noted that large amounts of DNA can also be transferred through touch. She stated that sweat itself is not a rich source of DNA but because it is secreted through the pores of the skin it can effectively collect and transfer DNA, so it helps DNA to transfer onto other surfaces. She accepted that the only DNA found on the neck swab of the complainant was the complainant's and the accused's, despite the complainant being in a crowded bar during the evening. Dr Angela Sungaila 1. Dr Angela Sungaila was an expert witness called by the defence. It was accepted between the parties that she was a qualified forensic physician. She had qualifications in both medicine and law and capable of giving expert evidence in relation to the examination of wounds. 2. Dr Sungaila prepared two reports. The focus of her reports was the alleged injury to the right side of the complainant's neck and whether it constituted a bite mark, as that term is understood within forensic medicine. The first report was dated 9 June 2024 which was marked as Exhibit H, the second was dated 20 July 2024, which was marked as Exhibit J. Dr Sungaila received the photographs taken of the complainant at Exhibit 1 for the purpose of preparing her report. She did not physically examine the complainant. 3. Dr Sungaila concluded in her first report, at page 6, paragraph 17 that, "the injury depicted and described cannot be objectively interpreted as a human bite mark". In reaching this conclusion, in addition to her own analysis, Dr Sungaila provided the image of the complainant's injury on her neck to two colleagues who had similar forensic expertise, without giving any history of what the allegation was or any background information. She explained that this practice occurs quite frequently to avoid "confirmation bias", which is a principle where when the person has a theory about what has occurred, they may tend to look for evidence that confirms their theory. 4. Dr Sungaila's two colleagues identified the injuries as a red mark, and that it was impossible to determine the actual injury from the photographs, other than it being a red mark and some crescentic lines or curved lines associated with it. The determination was that this was a "patent injury", being an injury that is usually caused by an external cause such as an imprint. Dr Sungaila's colleagues did not raise the possibility of the injury being a bite mark. 5. Dr Sungaila also provided evidence in relation to the passage of time and its effect to the injuries. The photograph of the complainant's injuries contained in Exhibit 1 was taken around four hours after the alleged incident occurred. Dr Sungaila considered the complainant's description of a bite mark, namely that, "It hurt a great deal. I was scared he was going to break the skin. I could feel his teeth digging into my neck it was nothing like a kiss". Her opinion was that with that degree of force, she would expect to see a much more pronounced injury with features that were more definitive of a bite mark such as abrasions, perhaps some bruising, and the skin may or may not be completely broken so there could even be bleeding. She further confirmed that the neck is a very highly vascular area, as such, bruising to the neck usually comes out or becomes apparent earlier or often more severe compared to, for instance, an arm because of the increased vascularity in the area. 6. Dr Sungaila provided evidence in relation to the timing of Dr Hamilton's examination, which took place around 12 hours after the alleged injury had occurred. She confirmed that if the bite was substantial as the complainant had described, she would expect to see an established injury and much more established bruising and very definite abrasions that were patterned in keeping with tooth marks and a classical appearance of a bite mark. 7. During cross examination, Dr Sungaila raised the possibility that the injury, both from the photograph and Dr Hamilton's description, was probably an abrasion, which is a disruption of the skin. Dr Sungaila considered the injury as an external cause of an imprint, such as a piece of jewellery that was imprinted and disrupted the skin, however, it was merely an alternative possibility. 8. Dr Sungaila also agreed that a person giving a version of pain is providing their subjective view of pain. Considering that the complainant in this matter was in circumstances of being sexually assaulted, the severity of their view of pain could be compounded. However, Dr Sungaila stated that she examined the alleged injury objectively, rather than associated with the background history. In her opinion, the injury she saw on the image is a patterned injury that has several marks that do not fit the forensic definition of a bite mark. 9. Dr Sungaila's evidence was that any injury described forensically requires certain agreed characteristics or criteria to be met to confirm that the injury was indeed caused by a particular mechanism. She stated that not all the crescentic marks on skin are necessarily bite marks. Dr Sungaila further stated that the absence of incisions or lacerations does not mean it was not a bite, defining abrasions as superficial injuries to the skin caused by an abrasive force in a linear fashion, for example, a scratch or a wider area, a graze. 10. Page 5 of her report includes an image of the injury marked with six black lines tracing the crescentic marks on the neck. Her evidence was that whilst there were linear scratches on the neck of the complainant which fits one of the criteria of a bite, there was only one part of the injury that could approximate the width of a mouth and that the other small crescentic areas which can be seen are too small to be caused by a human mouth. 11. When asked whether the three larger marks on the image could represent bite marks, Dr Sungaila confirmed that they could be seen as bite marks. When asked if she were to ignore the three smaller marks and focus only on the larger ones, she confirmed that it would very loosely fit the criteria of a human bite, however there are no other features apart from the correct size that would lead one to conclude that it was a bite mark. 12. During re-examination Dr Sungaila stated that whilst the three lower, larger marks approach the diameter of a bite mark, it does not mean that they are. She further explained that the injuries do not appear to be caused by a double bite as she concluded that the injuries were not caused by a bite at all and that the injuries are very minor. She confirmed that the larger and smaller crescentic shapes are similar in nature and cannot have been caused by a human bite. In the degree of skin disruption, they are closely associated with the larger marks, so that whole area would need to be taken as a whole, rather than separate each individual mark out. The Accused 1. The Accused gave evidence in the trial. He denied the offence. He denied knowing the complainant. He denied touching the complainant's tampon. 2. The accused gave evidence that as at May 2012 he was living in Boolaroo and was working in a number of restaurants and bars in the Newcastle area while he undertook studies in commercial cookery at TAFE. He gave evidence that he was in a relationship at the time with a woman with whom he is still in a relationship. He gave evidence that he worked at five other places including Fanny's. 3. The accused was taken to Exhibit F, being the CCTV stills taken at Fanny's on 3 May 2012. He identified himself on pages 1, 2, 3 and 4 where he was standing near an ATM machine. Two photographs show the accused was talking to a security guard (numbers 21 and 22) and the accused gave evidence that he knew that security guard. He gave evidence that he recognised the jacket that he was wearing and was wearing an earring. He gave evidence as to a photograph taken of him on 17 August 2012 which was tendered and became Exhibit N. He stated that this is how he looked at that time. 4. He gave evidence about smoking and walking around the Newcastle business district around Hunter Street and walking through Civic Park. He stated that he was a heavy smoker in 2012, smoking between 1 and 1.5 packs of cigarettes a day. When he was finished with a cigarette, if he was not near an ash tray, he threw the cigarette on the ground. The accused said he smoked as he walked through Civic Park on his way to work or coming back from work in the area, including regularly in May 2012. He gave evidence that he would get off the train at Civic Station, when it was there, and walk through Civic Park to get to the restaurants he worked at on Darby Street. He would also walk through Civic Park with a friend called Jai who lived near there. 5. The accused gave evidence that between January and approximately August or September 2012 he went to Balance Gym on Hunter Street. He went to the gym for about eight or nine months, going twice a week. He went to the gym more than twice a week if his roster permitted. He gave evidence that he commonly shared cigarettes with others including people he worked with at Fanny's Tavern in May 2012. He smoked whenever he could. He was also a regular drinker of Red Bull energy drinks. 6. The accused gave evidence about a series of ATM transactions from 2 May 2012. The accused asked his bank to provide him with the precise time that each transaction took place but they were not able to do so. The accused were qualified as a chef in early 2013, at which point he was working at Casa De Loco. He did not need to return to work at Fanny's as he completed his apprenticeship and no longer needed the additional income to work there, but Fanny's went through a renovation and he assisted with the renovations by ripping carpets out and moving old furniture. 7. The accused gave evidence that his shift start time at Fanny's was variable, between 9.30pm and, probably, 11pm, finishing at 2:30am to 3:30am. The accused identified the security guard in the CCTV still on page 4 of Exhibit F. He gave evidence about the procedures within Fanny's, including that patrons had to have their IDs checked at the cover charge window which he identified in page 2 of Exhibit Q. He said that his interactions with security staff, including the man he was speaking to in the CCTV from page 4 of Exhibit F, led him to think that he had probably been working at Fanny's as a glassy that night. 8. He gave evidence about working at Fanny's and described the various tasks he would undertake including taking the garbage out, collecting glasses, looking out for intoxicated patrons and moving furniture. He gave this evidence commencing at T.351.45: Q. What was the atmosphere like in there when it was really busy? A. Hot. There was no ventilation. The ‑ ventilation means noise, and noise means complaints. So there was no windows open. If there was aircon, it didn't work. Q. Were you able to keep yourself from getting smelly or sweaty or‑‑ A. No, definitely not. It's not an environment of hygiene. At T. 349.09: Q. What did you touch with your hands or body in any way when you were working as a glassy there? A. Pretty much everything. We'd wipe everything down. Move all the furniture. Q. What did you use to wipe things down? A. Chux, but they were ‑ I don't remember ever getting clean Chux. It wasn't a very hygienic place at all. Q. You did some cleaning. At what point in the shift would you do cleaning, or were there multiple points? A. All through the shift, whether it's wiping down benches or spew, spillages, yeah, everywhere. There was a mess. Q. A part of your role was to ensure that there wasn't spill just sitting on the ground or something? A. Yeah. On dry surfaces, but it was mostly carpet. Q. Would you stand in one spot for a while or did you move about, Fanny's? A. No, barely ever stopped. It's a go‑go environment. Q. Did you ever interact with patrons? A. Yeah, yeah. Q. In what ways? A. Identifying intoxication. Q. What do you mean? A. People have had too much or behaving in not the best manner in a close environment. Q. What did you do in terms of your interactions with patrons, if you noticed that? A. I just got straight to security. It wasn't my job to remove people as such. Q. You've said you touch basically everything, but I just want to be clear about this. Glasses were washed at some point, I take it? A. Yes, yeah. Q. What was used to wash them? A. Sort of. Q. What was used to wash them? A. We had a dishwasher. The cups were put in there on trays and they were stacked really high on trays and‑‑ Q. Who did the stacking? A. We did, as glassies. We'd walk around and we'd probably carry 30, 40 cups at a time. Just a big row of cups and just take back and then we'd stack them and wash them. We'd re‑stack them in front of the bar for the bar staff. Q. You would stack the clean glasses that you got out of the dishwasher you mentioned and stack them for distribution? A. Yeah. Q. Did you, other than identifying when people were quite intoxicated and giving security a heads up, did you interact with patrons in any other way? A. Definitely. It was a social environment. Talked to lots of people. It was hard not to in that environment. It was so busy, but at the same time when it was really packed and it was hard to hear so at points you'd it would be obviously hard to talk to people and you'd be flat knackered, but at some times in certain areas it was easier. Q. Who cleaned the bathrooms and when? A. Glassies would generally at the end of the night after lockout. Q. What did that involve exactly? A. Really just throwing a mop bucket of soapy water in the bathroom and that was about it. Maybe a little bit of a squeegee, but it wasn't much. Q. Did you clean the women's bathrooms as well as the men's? A. Yes. Q. Did you assist in any way with the opening or closing of the venue on a shift? A. At the beginning I did. When I first, first started I would be the last one ever because I was the newest employee. But as time went on and the guys knew how much I was working, I generally didn't have to stay back to be the last person. 1. The accused gave evidence that he would catch public transport to and from work. His evidence was that he had no reason to walk near Civic Park as it was not on route to either his bus stop or to Civic Station, which is where he ordinarily caught the train to Cockle Creek Station before walking the final distance home. He would catch the bus home if he left Fanny's after 3am from a bus stop on the corner of Darby Street and Hunter Street. The accused said he looked at the train or bus timetables on his phone and when asked why he might have been looking at his phone when he left Fanny's in the stills in Exhibit F, said "I would be guessing – just to make sure I haven't missed my transport". He said he could use his phone to look up timetables. 2. The accused gave evidence that he would use cash to pay for public transport, stating that he used to pay for his fares in cash because the introduction of the Opal system gave him "anxiety about managing it because I'm just no good at that sort of tech stuff". 3. The accused also gave evidence that he had tried to obtain employment records from Fanny's and other venues he worked as well as bank transactions and gym records but was unable to. He estimated he weighed about 60kgs during his early twenties. 4. During cross-examination of the accused he was asked about his appearance at 2012. The accused said the only photo he had from then was Exhibit N. He admitted using weights at the gym. When asked about broadening his shoulders, the accused said he was swimming a lot. He accepted that in the image on page 9 of Exhibit F he appeared to be clean shaven, "potentially". 5. Where he went after leaving Fanny's and he replied, "I would believe – it's hard to be certain now, it's been 12 years". He was subsequently asked whether he went to Civic Park, to which he responded "I can't be certain. No, I don't believe so". He denied coming across "a woman that was laying down on the ground" in Civic Park. He said he would remember it if he had. It was put to the accused that he "put a cigarette in her mouth" and that "that's how her DNA profile came on to that cigarette with yours". He responded, "I'm definitely denying that, absolutely". Similarly, the accused denied the suggestion that he "burnt her lip". When it was put to the accused that the complainant had said "stop" after he pulled her underwear down, he said "I deny that. I have no idea." Many of the accused's answer were to the effect, "I have no idea. I wasn't there" and "I wasn't there. How can I remember something if I wasn't there?" 6. He later gave evidence that, "I've never had sex in Civic Park, nor have I ever had sex with [the complainant] and I'm sure I would remember." Summary of the Crown case 1. The Crown alleges that at about 12.17am on 3 May 2012 the then 20 year old complainant went to Fanny's Tavern ('Fanny's') in Newcastle. The Crown case is that she met two friends there who I will refer to as SH and LS. The Crown case is that the complainant was at Fanny's for a few hours; leaving at about 3.05am. She had been drinking alcohol: vodka, mixed with something else. There is no evidence as to how many drinks she had but it led her to become very intoxicated. After the complainant left Fanny's there is a gap in her memory. 2. The Crown's case was that the complainant left Fanny's and woke up in Civic Park sometime later; lying on the ground near the fountain. She was facing up, partly on grass, and partly on concrete and there was a man kneeling over her applying pressure around her collarbone and her shoulders. That person was holding or pushing her down. It was the Crown case that the complainant's attacker was a broad shouldered and strong male, Caucasian, about her age and she thinks probably did not have facial hair. The Crown case was that when the complainant woke she felt something burning her lip. She indicated it was the bottom left of her lip and she said words to the effect of "I feel it when I remember it", that was part of her evidence and it was relied on by the Crown. She thought it was a cigarette and she was terrified. She heard the male say to her ‑ on the Crown case ‑ "don't move". She noticed that her skirt was pushed up, her underpants were then pulled down. She told the man to stop what he was doing, but he continued. 3. The Crown's case is the accused pulled the complainant's underpants down. Though she had finished her menstrual cycle she still had a tampon in her vagina. The Crown's case is that the tampon was removed by the accused and the accused then inserted his erect penis into her vagina and at the same time as holding her down by the shoulders begun thrusting his penis into her vagina while the complainant said, "No", and "stop" and tried to move but could not. The Crown case is the accused is alleged to have been on top of her. The complainant could not see anyone around her in the park, and it was quiet. 4. The Crown's case is that the accused bit the complainant's neck; causing her pain, or applied his mouth or some pressure onto her neck. After a couple of minutes the complainant began to scream as loud as she could; hoping that someone might heard her. At this point the accused removed his penis from her vagina, stood up and ran away in the direction of Auckland Street, Newcastle. She stood up and tried to dress herself; pulling up her underwear and fixing her skirt. The complainant ran towards King Street and climbed on a tree and hid for a while before calling her then boyfriend ‑ now husband ‑ MS; telling him amongst other things "Someone raped me". 5. The Crown case is that the complainant had been texting MS throughout the evening and made some calls. The complainant told him she was hiding in a tree in Civic Park and he responded by saying he was coming to get her. Importantly on the Crown case MS received a call from the complainant at 3.41am. At that point she told him she was in the park with her friends SH and LS. She sounded intoxicated to MS, and she told him she had been drinking quite a lot. The complainant told him that SH and LS were going home with two other men and she was going to get a taxi when she got off the phone from speaking with him. It was accepted by the Crown that the contents of this conversation are not supported by the other witnesses' memory of events. 6. MS woke his mother and sister and asked them for help to drive to Civic Park. He told his family that the complainant had been raped. MS's mother called police and they attended the park. The Crown case is that when MS and his family arrived at the park he found the complainant and she said words to the effect of "I'm okay, it only went in a little a bit". The Crown case is that the complainant then spoke to police at the park and they began their investigations which included identifying objects in the vicinity which were potentially relevant to the investigation. 7. MS's family then drove the complainant to the hospital, and just prior to leaving the hospital the complainant and MS had a conversation about what had occurred. 8. A police investigation commenced at the scene in Civic Park. The Crown's case is that there had been fairly heavy rain that had occurred in the early hours of that morning 3 May 2012. There had been some evidence given to the police that the accused had been smoking and some cigarette butts and a used tampon were secured at the scene. 9. The complainant was taken to John Hunter Hospital. There was a delay between her arrival and testing being undertaken because the complainant was still intoxicated. SC Whiting attended John Hunter Hospital at about 8.33am and undertook a forensic procedure on the complainant and took photographs of her, including areas of what the Crown alleges were injuries. He took a swab of the right side of her neck where the Crown case is that the accused had bitten her, and there were photographs taken of what are said to be bruising and abrasions. 10. The complainant left for hospital in order to go home and rest and then returned in the afternoon and spoke to Dr Alison Hamilton. This was at about 3.30pm. A SAIK test was undertaken, and a short history was given to staff. The SAIK recorded relied upon by the Crown refer to a burn to the complainant's lower lip with a sloughed area; a faint area of circular scratching to the left side of the neck; a very faint shoulder bruise; a 1 centimetre abrasion to the elbow; faint skin marks from pressure and tenderness to the back; multiple scratches to the right thigh; a 1.5 centimetre fresh abrasion to the right knee; and a 2.5 centimetre bruise to the left foot. I note that this last injury was ultimately abandoned by the Crown as being part of its case. 11. As part of the police investigation in 2012 they contacted the complainant's friends SH and LS. Contrary to the complainant's evidence SH and LS said they did not leave Fanny's with the complainant. Statements were not taken from them at the time. Police obtained CCTV from Fanny's and canvassed the surrounding area for other CCTV without success. 12. On 4 May 2012 the complainant attended Newcastle Police Station to make a statement, but ultimately did not do so. On 8 May 2012 the then officer‑in‑charge at the time Detective Sergeant Freney was advised by the complainant's mother that the complainant did not wish to make a statement at that time. The case was suspended. 13. The DNA swab taken from the complainant's neck was the subject of analysis, as were cigarette butts found at the scene in Civic Park. There were two reports done by Ms Virginia Friedman from FASS, which deals with the DNA found on the neck swab and cigarette butts. The DNA swab from the neck of the complainant had the accused as the major contributor and the minor contributor as the complainant. The accused's DNA was found on three cigarette butts at the scene. The Crown case was that the major contributor had the same profile as the accused; with the complainant being a minor contributor. 14. On 11 October 2022 the accused was arrested and was provided with the opportunity to give a version of events. He declined to do so, as is his right. The Crown relies on both the charge at s 61J of the Crimes Act but also its statutory alternative s 61I. The Crown submits that it is an overwhelmingly strong circumstantial case where the only rational inference is the accused is the man who sexually assaulted the complainant and on that basis asks the Court to find him guilty of the charge or its alternative. The Crown submitted there are several reasons for this; both based on the complainant's evidence and its circumstantial case. 15. As referred to in the elements, the Crown must prove beyond a reasonable doubt that the accused had sexual intercourse with the complainant at Civic Park on 3 May 2012, and that he did so without her consent knowing she did not consent, and in circumstances of aggravation, being that at the time of or immediately before the commission of the offence the accused did recklessly inflict actual bodily harm, or, as I say, the statutory alternative to that charge. 16. The Crown conceded that there is a gap in the complainant's memory and some differences in the version that she gives to MS, Dr Hamilton and to the Court. The Crown asked the Court to consider s 293A of the Crimes (Sentencing Procedure) Act to the effect that one must consider how trauma affects people and it affects them in different ways to show that recalling a traumatic event does not necessarily mean it is a dishonest one or an unreliable one. 17. The Crown accepted that the complainant said that her neck was bitten during the attack and indicated the left side of her neck during her evidence in court. But the photographs taken by police clearly demonstrate the right side. She said the bite really hurt, and she again said it was two to three times that she said the word "stop" to the person attacking her. When coming to the actual penile/vaginal penetration which the Crown relies upon as the evidence of the sexual assault, the Crown reminded the Court in closing submissions that the complainant paused when answering, which was indicative, in the Crown's view, of the retelling of a traumatic event and that the manner in which she gave her evidence was a powerful indicator that she was telling the truth. 18. The Crown reminded the Court of the complainant's evidence that she told her attacker to stop. That he did not, and then he removed her tampon and it hurt further. The sexual assault only stopped on the complainant's account, when she yelled out, screaming twice. The man stopped and ran. The complainant indicated on Exhibit 2, the Civic Park map where in the park she alleges this event took place. The Crown submitted this was important given where certain exhibits were found. 19. The Crown case relies on injuries that the complainant asserts were as a direct result of the assault; including the burnt lip and marks to the neck. There was a sloughed area which the Crown says is from a cigarette, the faint circle scratching on the right side of the neck, the faint bruise on the upper aspect of the left breast, a 1 centimetre abrasion in the back right upper arm, and of course the spine where it had been pressed against the concrete and some superficial multiple scratches on the left thigh and left patella. 20. The Crown referred to the complaint evidence of Dr Hamilton about a cigarette placed into the complainant's mouth, a burn to her lower lip and being pushed hard onto ground near the fountain. 21. The Crown submitted that there was no problem with the way the police first attended the scene at Civic Park and conducted inquiries. The police showed some initiative in the way they marked off the crime scene during the rain and protected what they identified as being potentially important items requiring analysis. It was submitted that when one compares the evidence about where the cigarette butts and the tampon were found, and the photograph marked by the Complainant of the scene, there is a proximity of those items to where the complainant alleges she was during the attack. 22. With respect to SC Whiting's statement, the Crown submission is that he was giving his best recollection of events, but he is also speaking about the procedures he would usually have followed. And in the Crown submission there is no reason to doubt he followed those very procedures, or the standard operating procedures. One of the reasons why the Crown submits there can be some confidence about this is that even the defence expert, Ms Roebuck, speaks to the fact that there could be, if there is an inappropriate PPE or inappropriate conduct with exhibits, some investigator contamination, but there was no such contamination in these exhibits. 23. With respect to the cigarette butts found at the scene, the Crown case submitted that it was significant that while it was just the profile of the accused on one marker (marker G), two butts had the profile of the complainant and the accused (markers B and D). There is no evidence that the complainant voluntarily smoked any cigarettes that evening. There is only one rational explanation that the Crown submitted that explains both profiles on those cigarettes, and that is that the accused was the male who held the cigarettes to the mouth of the complainant, leaving both of those profiles. 24. It was further submitted that there was no evidence that the accused's DNA was brought to Civic Park in some form, such as to contaminate the cigarette butts. The Crown submitted that there was no valid and logical possibility that, even if there was cross‑contamination of cigarette butts with the accused's DNA profile, it would get to a point of cross‑contamination with the complainant's profile as well. On the Crown case, the accused was the person sitting over the complainant at the relevant time, holding a lit cigarette and putting it near her mouth, such as to leave the transfer of DNA. 25. It was submitted that there was no evidence there was a direct transfer of DNA from the accused to the complainant while they attended Fanny's, that is that they touched each other or engaged in some way. The Crown submits the transfer of the DNA profile was during the sexual assault. The Crown does not have to prove beyond reasonable doubt by what means the profile was left on the neck. 26. The evidence of Ms Roebuck is that the neck swab of the complainant contained the accused's DNA. It may have come from some other source in the Crown's submission. That is not a realistic proposition. It was submitted that there was no evidence the pair knew each other or interacted in the club, that the accused at the time was a smoker of cigarettes. It is highly significant that the accused's DNA is on cigarettes with the complainant's DNA and his DNA is on her neck. 27. The Crown reminded the Court of Ms Roebuck's evidence that despite the number of people in the club in close proximity to each other, including the complainant, there are no other significant contributions to the neck of the complainant but her own and the accused. 28. The Crown said this was significant because of the absence of other DNA being identified in the complainant, apart from the accused. With respect to the existence or otherwise of the bite, the submission was that whether it is a bite, as defined by a medical analysis, is largely irrelevant. Other than as to the aggravated features of the offence, the criteria for the bite is important, but not all of the criteria needed to be satisfied for a bite to be found in a medical sense. 29. The Crown submitted that the complainant's version of events was of a significant degree of force being used. Dr Sungaila accepted that the subjective perception of pain can be compounded by the associated trauma and that being sexually assaulted is associated trauma, and that explains, on the Crown's case, the complainant's experience and their recounting of what, to her, felt severely painful in the circumstances. 30. The Crown then made submissions about the accused's evidence, noting that he places himself at Fanny's on 3 May 2012 and in the still images of Exhibit F. It was submitted that the man the accused identifies as himself does not have facial hair or distinctive features. In the Crown's submission, that is important because it is one of the identifying characteristics that the complainant gives for the assailant. The Crown also submitted that it was important to bear in mind that the complainant leaves Fanny's at 3.05am, and the accused leaves at 3.06am, so shortly thereafter. 31. The Crown acknowledged that it bears the onus of establishing the guilt of the accused as the only rational inference that the circumstances would enable the Court to draw. The Crown says it has discharged its onus by the combination of six considerations: 1. that the complainant leaves the nightclub, and two minutes later, so does the accused. 2. there is no evidence they knew each other or interacted in the club. 3. that the accused at the time was a smoker of cigarettes. 4. he has an identity that matches the assailant, including being a strong man. 5. that his DNA and the complainant's DNA are on cigarettes found at the scene, and the complainant is a non‑smoker. 6. his DNA is on her neck. 1. It was submitted that the circumstantial evidence should lead to a conviction of either the principal count or its statutory alternative. Summary of the Accused's case 1. The accused's case is that the Crown cannot prove beyond a reasonable doubt that he was the person who assaulted the complainant in Civic Park, and he should therefore be acquitted. The accused emphasised that the Crown's case turns on forensic evidence in its attempt to prove that the accused is guilty of the offence. It relies on discarded cigarette butts and a DNA swab from the complainant's neck. It was submitted that those key pieces of evidence are of questionable substance. It was also submitted that the Court would accept the evidence of his denials and that he gave cogent evidence denying the offence. 2. The accused's case, in summary, is that the DNA evidence is fundamentally flawed for three reasons: 1. transference and the potential for transference. 2. an issue with continuity. 3. a potential for contamination. 1. With respect to the alleged bite mark on the complainant's neck, it was submitted that no testing was undertaken for the cellular origin of the DNA from the neck. That is, no test was done to see if it was saliva or some other biological material, which should create some doubt about the cause of the mark the complainant referred to in her evidence. It was submitted that the presence of the accused's DNA on the complainant could be the result of what is known as transference and that this can occur either as primary or secondary transfer. It was submitted that this is not a case of, "Was the accused's DNA on those cigarette butts and on the complainant's neck, but rather, how did it get there?". 2. It is submitted that the accused has suffered a forensic disadvantage based on a combination of witnesses who are unavailable to potentially give evidence and the conduct of the initial police investigation, including the substance of the conversations with the Crown witnesses SH and LS, and several key exhibits were destroyed, diminishing the accused's capacity to challenge the Crown's case. The accused gave some examples of this lost or untested evidence, being the complainant's skirt and underpants, which were seized from her and then returned to her, unanalysed. There were the swabs taken from the complainant in the high and low vaginal area, and vulval swabs taken by the SAIK doctor about 12 hours after the alleged assault, but they were then destroyed and untested. 3. Similarly, the tampon, which is alleged to have been removed by the attacker, was also untested and subsequently lost. There were four items found at the crime scene which did not get tested, being a packet of Nerds confectionary, a small clear resealable bag of a crystalline substance, and a crushed Red Bull drink can. It was submitted that there may have been DNA on those items which, when destroyed, took with them the accused's opportunity to weaken the Crown's case. 4. The accused submitted that his denials, supported by credible expert evidence, together with the application of the Liberato direction, should result in acquittal. It was submitted that the Crown's circumstantial evidence did not exclude reasonable hypotheses consistent with the accused's innocence, and he should be acquitted. 5. It was submitted that the accused gave unchallenged evidence about his movements and habits in 2012 and that his denials of liability were consistent in examination‑in‑chief and cross‑examination, and that his credibility was enhanced because he had not tried to develop a version of events which deliberately tried to explain away some of the evidence or create a stronger case on the possible transference of his DNA to the complainant. It was submitted that he did not hold a memory of his precise movements on 2 and 3 May 2012. 6. The accused's evidence provided the factual basis for a hypothesis consistent with innocence that cannot be excluded, being that his DNA was transferred onto the complainant's neck and the cigarettes other than during the alleged sexual assault. It was also the accused's case that the injuries complained of by the complainant do not amount to actual bodily harm or, indeed, that they occurred in the manner alleged by the complainant. 7. In addressing the Crown's case, the accused put forward five bases as to a reasonable hypothesis consistent with innocence. The accused referred to the Crown's closing submissions inviting the Court to find the only rational inference was that the accused sexually assaulted the complainant. Three aspects of the Crown's circumstantial case were accepted. It was accepted by the accused that the complainant left Fanny's about two minutes before he did. Secondly, that there was no evidence that the complainant and the accused knew each other. Thirdly, it was accepted that the accused smoked cigarettes. 8. It was not accepted that the description provided by the complainant of her attacker as being a strong man. The accused took issue, though, with the submission that his DNA and the complainant's DNA on cigarettes found at the scene meant that there was no reasonable hypothesis consistent with innocence, and the presence of the accused's DNA on the swab taken from the right side of the complainant's neck could be explained by transference. 9. The accused submitted that there were five hypotheses that should be drawn from the evidence. The first was that the accused was probably working at Fanny's on 2 to 3 May 2012. This submission ties in with the later submission that the accused's DNA came to be on the complainant's neck because of transference. The accused gave evidence about his employment history from between 2010 to mid‑2013. That evidence, together with the ATM transaction records and his behaviour towards security staff on the CCTV, suggests that he was working at Fanny's on 2 to 3 May 2012. He worked at a number of hotels and restaurants around that time. Submissions were made referring to the evidence which established this proposition, including his own evidence, ATM transaction records, and CCTV footage, which could be interpreted as demonstrating he was there as an employee and not a customer. The accused had no specific memory of working on 2 May to 3 May, but having examined the footage in Exhibit F, he submitted that his interactions with security staff led him to think that he had probably been working at Fanny's on that night. 10. It was submitted that if the accused was working at Fanny's rather than simply being a patron, it increased the likelihood of him having direct contact with the complainant, perhaps in the cloakroom or as he moved around the bar tidying up. 11. The second hypothesis was that the accused did not walk through Civic Park after leaving Fanny's on the morning of 3 May 2012. This submission was based on the accused's evidence that at the time he lived outside Newcastle and used public transport to go to and from the Newcastle CBD. The accused submitted that the Google Map in Exhibit R, together with the historical bus map, Exhibit S, demonstrated that when he left Fanny's after 3.05am, he had no reason to walk towards Civic Park. It was not on route to either his bus stop or to Civic Station, which is where he ordinarily would catch the train home. 12. It was submitted that, given the accused's travel habits, he would have walked from Fanny's to the bus stop or the train station, neither of which required him to pass through Civic Park, and he could not have encountered the complainant. An argument put forward as to the accused catching public transport home was the ATM record at Fanny's at 3.05am, getting money. The accused's evidence was, "My guess would be to get public transport home". He distinctly recalled that he used to pay for his fares in cash, which occurred because the Opal transport system gave him, "Anxiety about managing it because I'm just no good at that sort of tech stuff". 13. It was submitted that based on the CCTV, the accused did not appear to notice the complainant passing him in the CCTV footage. There is no evidence that he took an interest in her, and his movements immediately prior to departing Fanny's suggested he was not intentionally following the complainant out of Fanny's. 14. It was submitted that if the Court accepts that he did not walk through Civic Park, then he cannot have encountered the complainant and sexually assaulted her, and his DNA on the complainant's neck and the cigarettes found at the scene have innocent explanations. 15. The third hypothesis was that the accused DNA was on the cigarette butts found in the park because he shared cigarettes with others, or, because of transference or contamination. His DNA was not on the cigarettes as a result of using them to burn the complainant's lip during the alleged sexual assault. The Accused submits that the Court should infer that his DNA was found in mixed‑profiles along with the complainant's DNA on the cigarette butts at markers B and D, either by sharing cigarettes, or through direct or secondary transference. This inference should be drawn from the following facts and "sub-inferences". 1. the accused was a heavy smoker in 2012, he regularly shared cigarettes; 2. the accused threw his cigarettes on the ground after smoking them if he was not near an ashtray; 3. in 2021, the accused regularly smoked as he was walking through Civic Park in 2012; 4. the accused DNA was found on the cigarette butts in a mixed‑profiles with the complainant's DNA and another person's DNA, because either: 1. The accused gave cigarettes to someone else. When handing the cigarettes he left his DNA on them. The person who attacked the complainant was not a "good shedder" and did not leave his DNA on the cigarette used during the assault, consistent with the "hidden perpetrator effect"; or the attacker left his DNA on part of the cigarette but that was not swabbed. The complainant's DNA was deposited on one of the cigarettes during the attack. Her DNA was deposited on the other cigarette through some form of transference (direct or secondary); or 2. The accused dropped three cigarettes on the ground at the crime scene, assuming no secondary transference at certain points or point in time prior to 3.41am on 3 May 2012. The complainant's DNA was subsequently deposited on two of those cigarettes by a transfer (direct touch or aerosol transfer, or secondary transfer); or 3. The accused DNA was not in fact originally on the cigarettes, it was added to the mixed‑profiles containing the complainant's DNA, and the DNA of the unknown third contributor by SC Whiting, who contaminated the crime scene. 1. It was submitted that the accused unchallenged evidence about his heavy smoking and movements through Civic Park provided a reasonable hypothesis about why cigarette butts with his DNA would be found there. The accused was a heavy smoker in 2012. When he finished with a cigarette, if he was not near an ashtray, he threw the cigarette on the ground, including while he walked through Civic Park on his way to work, or coming back from work. It was submitted that the accused unchallenged evidence about smoking in 2012, including sharing cigarettes with those he worked with at Fanny's and others, explains how his DNA came to be on the cigarettes found at the park. It was deposited there through handling the cigarettes at some point prior to the cigarettes being discarded in the park. 2. It was submitted that Ms Roebuck's evidence in Exhibit G, and in Court, put forward reasonable hypothesis consistent with the accused innocence. It was accepted that the complainant's DNA was directly or indirectly transferred onto the cigarette butts at markers B and D, but there was no way of knowing when. It was submitted that the Crown case, which includes the complainant's evidence regarding the use of one cigarette during the attack, could only explain the presence of the complainant's DNA on one of the two cigarettes with her DNA on it. The Crown has not explained the presence of the complainant's DNA on two cigarettes. Further, the complainant's evidence suggests that she made direct contact with the burning end of the cigarette. It was submitted that the complainant did not give evidence that the filter end was ever on or inside her mouth. The Crown can, therefore, only speculate as to how the complainant's DNA came to be on that specific part of the cigarette. 3. It was submitted that the complainant denied ever smoking a cigarette in 2012. It was submitted that the evidence does not establish that the complainant's lip was burned with a cigarette. Dr Hamilton's report and notes do little to assist the Crown case with proof of a burn to the lip. It was also submitted that there was an alternative hypothesis as to how the complainant's DNA was placed on the cigarette, that hypothesis being one of contamination. The accused submits that the inference can be drawn from the following evidence: 1. The accused DNA may have been on the Red Bull can in the Civic Park that was seized, not tested and destroyed. The accused evidence was he consumed Red Bull in 2012. 2. SC Whiting's evidence establishes that the Red Bull can was seized, not tested and later destroyed. 3. The possibility that SC Whiting contaminated the cigarette butts seized at markers B and D by transferring the Daniel of the accused onto them from the untested Red Bull can and that this cannot be excluded and gives rise to an unexcluded reasonable possibility that there was contamination at the crime scene. It was submitted that contamination of the crime scene may have occurred through storage and handling. 4. Ms Roebuck's evidence did not in fact exclude the possibility of contamination at the crime scene. 1. It was submitted that contrary to the Crown's submission that, in effect there could not have been contamination at the crime scene because if there was SC Whiting's DNA would have been detected in the samples taken. Ms Roebuck's evidence about contamination suggests that contamination can occur in circumstances where the crime scene officer did not themselves contribute their own DNA to the exhibit. 2. The fourth hypothesis consistent with innocence is that the complainant was not bitten on the right side of the neck, which is where the swab was taken. The accused submits that the evidence given by Dr Sungaila overwhelmingly established that the red marks on the neck were not a bite. Exhibit 10, which was SC Whiting's statement of 16 July 2024, revealed that he most likely took a swab from the right‑hand side of the complainant's neck. Because the complainant identified that area to him as the area with the visible injury. It was submitted that there is no rational basis to reject the evidence given by SC Whiting that the swab came from the right‑hand side of the complainant's neck and the injury was observed to the right‑hand side, not the left. It was submitted that Dr Sungaila's evidence demonstrated that the marks to the complainant's neck were not from a bite. 3. The fifth hypothesis was that the accused DNA came to be in a sample derived from the swab to the right side of the complainant's neck because of transference. It was not from the complainant being bitten there. This submission links back to the first hypothesis and the complainant and the accused both being at Fanny's during the night of 2 May 2012 and the morning of 3 May 2012. The accused's central proposition was that if the accused worked at Fanny's that night, he is likely to have been carrying glasses around, mingling with patrons, working in the cloak room, cleaning and generally moving around. This created the significant chance that he would leave his DNA around Fanny's and that could explain a reasonable hypothesis consistent with his innocence to explain how his DNA was on the complainant's neck through innocent transference. 4. It was submitted that the complainant gave evidence that the attacker made direct physical contact with her neck in only one way, by biting her neck. She did not give evidence that he licked her neck, kissed her neck or put his hands around her neck. For the Court to conclude that the accused DNA was deposited on the complainant's neck because of the accused contacting her neck other than through a bite, the Court would have to find a rational basis to reject the complainant's clear evidence that she was bitten and then find a reasonable basis to conclude that the DNA was transferred during some point in the sexual assault. 5. To find the accused guilty on this basis would also require the Court to reject credible, scientifically sound evidence from Ms Roebuck about the possibility of transference of the accused DNA. Lastly, the Court would have to reject the accused express denial of biting the complainant's neck. There is no rational basis to reject the credible evidence given by Ms Roebuck or the accused in favour of rejecting a key aspect of the complainant's evidence, and preferring a hypothesis of the Court's own making. 6. It was submitted that there was evidence of the complainant's movements inside Fanny's, which gave rise to the reasonable possibility of transfer. The evidence relied upon was the CCTV, which demonstrated the complainant was inside Fanny's between 12.18 and 3.05am on 3 May 2012, as well as waiting in the queue to enter, standing behind a man wearing a Hurley branded shirt and "probably" leaning into the coat check or ID check area in the queue outside Fanny's. 7. The Court was reminded that the complainant gave evidence that Wednesday, 2 May 2012 was cheap student drinks night and that it was busy, would often be shoulder to shoulder with people on student nights. The accused gave similar evidence, including the lack of ventilation and that he would be moving around the venue, working. The complainant agreed that Newcastle had lock‑out laws in 2012 and that Fanny's Tavern served drinks in plastic tumblers because there was no glass in licensed establishments. She thought she would have paid for drinks with cash, or on her card, and if she ran out of money, she would have used the ATM inside Fanny's rather than leave Fanny's to find an ATM aligned with her bank outside, although the complainant could not recall if she used an ATM inside Fanny's that night. It was submitted that if she had done so, then this would have provided a viable mechanism for the transference of the accused DNA onto the complainant, noting that he used the ATM. 8. The Court was reminded by the accused that the complainant was captured on CCTV walking out of Fanny's at 3.06am and touched the area near the right side of her neck. This is direct evidence of the complainant touching her neck after having been at Fanny's and that created a reasonable opportunity for the accused DNA to be transferred to her neck. 9. The accused submitted that Ms Roebuck reached the reasonable conclusion that, "It is not possible to exclude the possibility of indirect transfer of his DNA to the complainant". A conclusion said to be derived through a rational process of applying her expertise and knowledge concerning transference and DNA more generally to the information provided to her about the complainant's presence at Fanny's, the accused presence at Fanny's and his interaction with objects and patrons while working there. 10. With respect to the remaining evidence in the Crown case, it was submitted that the complainant could not identify the accused as her attacker. Her evidence at trial that he was a broad‑shouldered and strong man, that she did not think had any facial hair, he was roughly around her age, therefore around 20, and was confident that the accused was Caucasian. The accused submits that the description provided was so vague as to be of very slight probative value. It was submitted that since the complainant and the accused must have been inside Fanny's for several hours during the lock‑out period, and notwithstanding that fact, she did not recognise him as her attacker. 11. It was submitted that her evidence about being bitten on the neck should be rejected when the location of the mark is uncertain, and it is unclear when the suggestion of the bite first arose. 12. The accused submits that, when the Court considers whether it can find the complainant's evidence credible and reliable, it should find that the reliability of her evidence was impaired by the consumption of alcohol and the passage of time. The accused accepts that the complainant was doing her best to give honest and accurate evidence. However, she was clearly mistaken in a number of respects. She had a gap in her memory between being in the toilet cubicle with SH and LS and walking up to the park. 13. The accused listed a range of items of which the complainant had no memory, including how many alcoholic drinks she had that night, details of the evening, whether she used the ATM and how she got from Fanny's to Civic Park. The complainant could not recall most of the communications she had with MS, here then boyfriend, but she "specifically remembered" being in the toilet cubicle with her two friends at Fanny's before leaving, but those two women gave contrary evidence. 14. It was submitted there were also inconsistencies in her evidence regarding whether she had signed the consent form to release specimens as recorded in the SAIK notes. 15. With respect to the complaint evidence given by Dr Hamilton the accused accepted that the complaint evidence supports the complainant's account that she was sexually assaulted by someone in the park between 3am and 4am. However, it did not meaningful assist the Crown case in relation to the facts in issue in the trial. Neither the evidence from Dr Hamilton nor the evidence given by MS contained a description of the attacker. Similarly, the complaint evidence does not include that the complainant recognised the attacker as the accused who she saw less than an hour earlier. 16. It was also submitted that the accused labours under a significant forensic disadvantage and has in essence been denied the chance of a fair trial by reason of the delay between 3 May 2012 and October 2022 when he was arrested. These matters are set out in the directions I have already referred to. The loss of the CCTV which could have identified people the accused recognised and I infer could have been brought to court as witnesses on his behalf. There is a loss of exhibits such as the crushed Red Bull can, clothing and tampon all of which can and should have been tested by investigators. There as the lost opportunity to obtain phone records which may have indicated what the accused was doing after he left Fanny's that morning, as well as employment records and bank transactions. Discussion 1. Having now set out the evidence my directions of law and the parties' respective cases I am now going to deal with my findings. 2. I want to start by accepting that there is the prejudice to the accused having regard to the passage of 12 years. I accept that the effects have been to all witnesses' memories, but importantly for the accused, the delay has diminished his capacity to obtain evidence that may have assisted his defence. One of the submissions made by the accused is that the absence of work records has prejudiced his defence. In circumstances while I will accept his evidence about working at Fanny's that night this is not really an issue. 3. Further, contrary to the submission by the accused that there was missing CCTV from Fanny's, that is not the case. Immediately after the allegation arose Detective Freney obtained what CCTV Fanny's held, as well as canvassing the immediate area looking for other CCTV. It appears in this respect at least that everything that was ever potentially available was available at trial. The accused's evidence 1. I will start by addressing the accused's evidence because as counsel for the accused correctly submits if the Court accepts the accused's evidence he must be acquitted. If the accused's evidence is difficult to accept but may nonetheless as a matter of reasonable possibility be true the accused must be acquitted. If the Court does not believe the accused's evidence then it would be put to one side and the question remains has the Crown upon the basis of evidence that is accepted prove the accused's guilt beyond a reasonable doubt. It is not appropriate to frame the issue for determination in a trial such as this as involving a choice between conflicting prosecution and defence evidence, that is, preferring one version of events over another. That is because the issue is always whether the prosecution has proved each of the elements of the offence beyond reasonable doubt. I am required to assess his evidence as I would any other witness. I have already directed myself that the accused bears on onus whatsoever. 2. The accused was obviously not required to give evidence and the fact that he has in no way changes the onus of proof. Given the accused's tactical decision to retain his own expert witness to address the DNA issues rather than relying on the expertise of Ms Virginia Friedman he placed himself in the position where it was virtually inevitable that he gives evidence. It was necessary because Ms Roebuck's report relied largely on assumptions provided to her based on the accused's instructions about his work at Fanny's. 3. I accept the accused's evidence with respect to his working arrangements in Newcastle as of May 2012, his friendship with a man on Darby Street, his bi‑weekly gym attendance, his TAFE qualifications and his employment at multiple bars and restaurants at that time. 4. I accept his evidence that he regularly walked through Civic Park as it was near his gym and on the way to Darby Street. I accept he was a regular smoker, and that he would both discard his cigarettes while he walked through Civic Park, but also shared them with people from time to time. I accept he would buy energy drinks, such as Red Bull. I accept his evidence identifying himself in images within Exhibit F. 5. I accept he usually caught public transport home from Newcastle after leaving Fanny's and is likely to have done so on the relevant night. I am also prepared to accept that the accused worked at Fanny's during the night of 2 and 3 May 2012 and that as a matter of fact this could increase the likelihood of his DNA being around the venue. 6. I accept he could not obtain some banking records or telephone records from 2012, and I remind myself of the direction about how that delay in the proceedings has impacted on his ability to prepare. I accept that if the case had been brought earlier he may have been able to call helpful witnesses. 7. I also accept the submission made on his behalf that he could have made up a cover story about encountering the complainant and somehow explaining the DNA evidence, but he did not do so and that is to his credit. 8. His evidence on the topics I have referred to is plausible; they are matters which could not be challenged by the Crown and are uncontroversial. They have some limited independent support in Exhibit F. But the other documents tendered, such as Exhibits O, P, Q, T, U and V really did little to advance the accused's case. 9. While I accept those aspects of the accused's evidence I struggle to accept other aspects of it. It is a small point but his evidence that he did not understand how to use an Opal card and needed to use an ATM to get cash to pay for his bus fare home seems simultaneously both irrelevant and dubious. I found it extremely hard to accept that a person aged in their early 20s, as the accused was in 2012, found paying for his public transport via an Opal card something that would make him anxious. Further, that he was glad to get his driver's licence because he was "glad I didn't have to use that system". 10. I also have real difficulty accepting his evidence that he would have been "lucky to be 60 kilograms in my early 20s". I can understand why this evidence was led given the complainant's description of her attacker. But it is inconsistent with Exhibits F and N and his own evidence about going to the gym twice a week commencing January 2012. To the extent it is possible to make a comparison using Exhibit F he certainly looks to be slightly taller than the women he is standing near, and the same height or perhaps just slightly shorter than the Fanny's security guard in photographs 20 and 21. In my view his answer as to his weight was an attempt to deliberately distance himself from the description the complainant had given of him and was untrue. 11. The accused was asked where, as of May 2012, the bus from Newcastle left to take him home at 3am after he left Fanny's. He described the stop as being on the corner of Darby and Hunter Street. He marked the spot on Exhibit S, as well as marking the nearby Civic Park. It was clear the locations are very close to one another. My impression of his evidence on this point was that he was quite vague about exactly how he got home that night. He spoke about sometimes catching the train from Civic Railway, but also potentially catching a NightOwl bus if he was leaving Fanny's after 3am, as appears to be the case here. 12. The most important aspect of the accused's evidence of course is whether I accept his denial of responsibility for the offence and whether I believe it may be true. The accused certainly sounded confident in his denials of committing the offence. When asked squarely by his counsel whether he committed the offence he responded simply "No". This single word answer is consistent with much of his evidence‑in‑chief, his demeanour during evidence‑in‑chief was quietly confident, but many of his answers comprised just one word, "yes", with little or no elaboration. 13. My impression was that his demeanour changed once cross‑examination began. At transcript 358.36, after being asked about leaving Fanny's, there was the following exchange: Q. Where did you go? A. I would believe ‑ it's hard to be certain now it's been 12 years. 1. This uncertain answer immediately raises the question on whether he could have gone to the park. The Crown picked up on this and the accused was then cross‑examined on this topic from transcript 359.3: Q. After this image at page 9 of Exhibit F did you make your way to the Civic carpark? A. To the which side? Q. The Civic Park I should say? A. I can't be certain. No, I don't believe so. Q. You can't be certain, is that because you were in there smoking your cigarette? A. I have no idea. Q. You could have been at Civic Park after three smoking cigarettes, is that right? A. I can't be certain. Q. You can't be certain? A. Correct. Q. You know the Civic Park? A. Yes. Q. You know where the fountain is? A. Yes. Q. Did you come upon a woman that was lying down on the ground there? A. No. Q. You know the cigarette butts found near that fountain that have your DNA don't you? A. As I've observed in the brief, yes. Q. You know they also contain the profile of the complainant don't you? A. As it says in the brief. Q. You say you didn't come upon a woman that was the complainant in that park? A. No. No, I would remember that. Q. You would remember that? A. If I did, yeah, if I came across somebody. Q. You see I suggest you did come across the complainant lying in the Civic Park and you were smoking a cigarette, weren't you? A. No. You could suggest that, but I don't believe it to be true. Q. You don't believe it to be true? A. Yeah, because I would remember that. 1. The accused did later deny being at the park and he denied coming across a woman in the park. During this part of his cross‑examination my observation of the accused was that he was defensive, slightly aggressive, and clearly did not like being tested on this topic. 2. When cross‑examined about whether he had placed a cigarette in the complainant's mouth, and that that explained why there was his and her DNA on a cigarette butt, he did not initially deny this but instead took on a more aggressive tone; stating "That's, I guess for you to suggest" and then "That's for you to suggest". After these answers I asked him whether he was in fact denying the accusations. It was only then that he began to expressly deny what was being put to him. In addition to the denials he answered to the effect that he would remember if he had sexually assaulted anyone at a park. 3. It was submitted that the accused's evidence was consistent and that he made reasonable concessions and that in effect I should accept his evidence and the matter would not need further considerations. It was submitted on the accused's behalf that the Court would not be troubled by his lack of certainty in answering some of these questions as it simply reflects a lack of sophistication and, essentially, his honesty. 4. Having pleaded not guilty it was entirely unsurprising that the accused gave evidence strongly denying the charge. But the accused's initial lack of certainty that he was not at Civic Park at the critical time was troubling. I was also troubled by his demeanour during cross‑examination and the clear aggravation he displayed at being asked not only reasonable, but necessary questions, about his conduct after leaving Fanny's. 5. The reality is that the only direct evidence that the accused did not commit the offence is his own word. In a word on word case an accused's evidence may be sufficient to cause a doubt about the Crown case, but of course that is not this case. While the accused's evidence supports the factual underpinnings of Ms Roebuck's report it does not cogently explain the presence of the DNA on the complainant's neck, nor the presence of the DNA on the two cigarettes at the crime scene which are the significant factual matters in this trial. In saying this I am not simply comparing the accused's version of events to the Crown's case in deciding which one I prefer. 6. My conclusion is that I do not accept the accused's denials, nor do I consider there is a reasonable possibility that he may be telling the truth. In the circumstances, I am simply going to put his evidence to one side and focus on the Crown case. The complainant 1. As I have set out in the directions document, it is important to assess the complainant's evidence both in terms of its reliability and credibility. I accept her evidence that she was sexually assaulted in the manner alleged by the Crown. I found her evidence highly credible and powerful and with no sense of exaggeration. 2. She did get frustrated with cross‑examination at one point, and repeatedly said, "I don't remember", in answer to questions being put to her. I did not feel she was making a genuine attempt to answer those questions. Those answers were in the context of cross‑examination about MS's statement, Exhibit 5, and not her own evidence. 3. Not surprisingly, given that the accused's evidence was that he was not involved in any misconduct with the complainant, counsel for the accused at trial could not challenge the complainant's allegations of the assault. 4. I have set the complainant's evidence out in detail already. I accept her evidence that she was in Civic Park, waking up with grass and concrete underneath her, and a male on top of her. I accept her evidence that the male was kneeling down and she felt pressure pushing her down on her chest and shoulders, and that her assailant had broad shoulders. I accept she felt something burning her lip, and that although she could not remember a smell, I accept that her evidence was that she was a cigarette, and that that the burning sensation was from the cigarette. 5. I accept the complainant's evidence that she felt terrified and scared. I accept her evidence that she saw her attacker's face and that he was Caucasian and about her age and that she did not think he had any facial hair. I accept her evidence that her skirt had been pushed up and the man pulled down her underwear and I accept she thought she told him to stop. 6. I accept the complainant's evidence that she believed she was bitten, although I will return to that issue shortly. 7. I also accept the complainant's evidence that her menstrual cycle had finished but that she had a tampon in her vagina and that before the attacker put his penis inside her vagina, he pulled the tampon out, which she recalled was very painful because she was dry. 8. I accept her evidence that her attacker exposed his genitals and that he put his penis inside her and began non‑consensual penile vaginal intercourse for a couple of minutes. The complainant said the assault did not stop until she yelled or screamed out. She recalled that the park was very quiet at that time, and she believed she screamed twice. The attacker stopped and ran away while she was still in the grass. I accept that evidence. 9. In addition to her own evidence, there is some independent evidence to support at least part of this narrative, specifically the fact her tampon was removed was corroborated by the finding of a tampon at the scene. Similarly, her evidence that there was a cigarette at the attack is supported by the fact that cigarette butts were found at the scene. 10. However, there are aspects of her evidence which are contradicted by the evidence of other witnesses or objective evidence. Notwithstanding that, it does not cause me to doubt the main aspect of her evidence because they are really issues which do not go to the central allegation. 11. The first aspect of the complainant's evidence which I consider to be inaccurate, is her description of who she was at the park with at 3.41am on 3 May 2012. Her evidence in court was that she had a gap in her memory and could not remember what happened between leaving Fanny's and waking up in Civic Park. However, the evidence of MS was that she was speaking to him at 3.41am and was with her friends, SH and LS, who were about to go home with two men. The complainant's statement to Dr Hamilton is consistent with this, including that there was dancing on the fountain in the park right next to where the assault is said to occur. Neither LS nor SH support this version of events. Both say they left Fanny's without the complainant because SH was sick and needed to go home. There is a discrepancy between the complainant's memory now, with a "gap" and her statements in May 2012. 12. I do note that I did not find LS's evidence very impressive. At one point, she seemed to struggle with remembering what year she left school and her age when she left school, and this is someone who is in the early 30s. She said that she had trouble remembering things due to both intoxication on the night and the passage of time. 13. SH, though, did not have those difficulties. She clearly remembered being unwell, going to a toilet cubicle and being taken back to her hotel by LS. Perhaps more powerful than the evidence of both LS and SH is the objective evidence in the CCTV from Fanny's, clearly showing the complainant leaving by herself. 14. My conclusion is that contrary to the contemporaneous statement to MS and later to Dr Hamilton, the complainant left Fanny's alone and was not at the park with LS and SH. While this does impact on her credibility to some degree, perhaps more importantly, it demonstrates to the Court the complainant's vulnerability when she left Fanny's alone and heavily intoxicated at 3.05am. 15. With respect to the cigarette burn, the complainant said in cross‑examination that the lit end of the cigarette was held to her lower lip. There is some support for this in Dr Hamilton's report, which refers to a sloughed area of to the lip and the report makes a contemporaneous record of the complainant referring to a lit cigarette burning her. Conspicuous by its absence, though, in Exhibit 12, the crime scene examination summary completed by SC Whiting, was any mention of injury to the complainant's lip or lips, nor a photograph in Exhibit 1. 16. However, the analysis from the cigarette "swatching" undertaken by investigators was that there was an examination of the butt or filter end of the cigarette, not the end where the ash was. As a matter of logic, this must be right. In the Court's view, it is likely that the complainant is simply wrong about the lit end of the cigarette being held to her lip. It must be the case that her attacker placed the filter end in her mouth, as this explains both the presence of her DNA on the filter end and her feeling of a burning sensation. Based on the photographs in Exhibit 9, the cigarettes had burned down close to the filters. Importantly, the complainant gave evidence to Dr Hamilton, which is consistent with this, having told Dr Hamilton that a "lighted cigarette" had been placed in her mouth. 17. It was an important aspect of the complainant's evidence that she was bitten to the neck during the assault. The significance of the complainant's evidence of a bite is that if it is established, it goes to the element of aggravation. I accept the Crown's submission that it does not have to prove the existence of a bite beyond a reasonable doubt. In cross‑examination, the complainant referred to the attacker as lowering his head and biting her in the neck, causing pain. She described the attacker digging his teeth into her neck and that it felt nothing like a kiss but rather a full‑on bite, which she believed was a deliberate attempt to cause her pain. 18. Dr Angela Sungaila's evidence about the bite was very clear, both in her report which became Exhibit H and in cross‑examination. Her conclusion was that the photographs of the complainant at Exhibit 1 did not meet the medical criteria for a bite mark. While photographs were taken of the complainant's right neck within four or five hours of the incident, they demonstrated a combination of three marks, which could be the size of a bite, three smaller marks with the same appearance, were too small to be a bite. 19. I accept the accused's submission that Dr Sungaila's opinion is correct and that at least as far as the term 'bite' is understood by forensic medical experts, there was no bite. However, simply because the injury is not a 'bite' as defined at paragraph 5 of Exhibit H, that does not mean the Court rejects the complainant's evidence on this topic. The terminology may be incorrect so far as an expert witness is concerned, but the complainant's vivid description of a bite demonstrates to the Court that clearly her attacker did something to make her feel as if she was being bitten. Photographs in Exhibit 1 do show some marking to the area on the neck and of course the complainant said there was ultimately some bruising. 20. As raised during the course of the trial, while the Crown relied on a bite to help ground its allegation for the aggravated form of the offence, the more significant issue to the Court was that the complainant felt her attacker applying pressure to her neck and that her evidence is corroborated by the fact that someone else's DNA, i.e. the accused's, was found on her neck. Focusing on the precise mechanism in which the DNA was left on the complainant's neck ignores the more important issue, the fact that there is DNA there at all. 21. The fact that the complainant's description of what happened does not satisfy some medical definition of a bite causes the Court no difficulty at all. As Dr Sungaila said in her evidence, trauma can affect people's perceptions of events. 22. Further, in circumstances with the evidence about the possibility of DNA transference by direct contact, I do not see any reason why the Court would not accept that the complainant was attacked, and that the attacker left his DNA on the complainant. 23. With respect to the other injuries the Crown relies upon to prove the reckless infliction of actual bodily harm, I go back again to the photographs in Exhibit 1. For the element relevant to this issue to be made out, the injury must be more than merely transient and trifling. In the circumstances of this matter, taking into account the complainant's evidence in Exhibit 1 and Exhibit 16, and what I have already said about the burn to the lip, I do not find that the injuries complained of by the complainant meet that threshold. Similarly, what the complainant believes was a bite does not change that conclusion. The Crown's circumstantial case 1. Having considered the direct evidence, I will now turn to the Crown's "strands in the cable" circumstantial case. 2. I remind myself that I must examine any possible inference to ensure that it is a justifiable inference. Second, I must not draw an inference from the direct evidence unless it is a rational inference in the circumstances. Third, I must be persuaded that the ultimate inference or conclusion the prosecution asked me to draw is not only a reasonable one to be drawn from the facts that I find established by the evidence, but also that it is the only reasonable inference that can be drawn from a consideration of all established facts. If there is any other reasonable conclusion open on those facts that is inconsistent with the conclusion the prosecution asked me to reach, then I must not draw the inference the prosecution asked me to draw. The Crown relies on six discrete bodies of evidence. While I will consider each of them, ultimately the evidence must be looked at in combination, not in isolation. 3. The Crown relies upon, firstly, the complainant leaving Fanny's and about two minutes later, the accused leaving. Secondly, there is no evidence the accused and the complainant knew each other or interacted in the club. Thirdly, that the accused at that time was a smoker of cigarettes. Fourthly, that the accused has an identity that matches the assailant, including being a strong man. Fifthly, that the accused's DNA and the complainant's DNA are both on the cigarettes found at the scene and the complainant is a non‑smoker. Sixthly, the accused's DNA is on the complainant's neck. 4. The first three of those propositions were accepted by the accused. The others were not. I will put the fourth issue, the physical description of the attacker, to one side for the time being and instead deal with the evidence concerning the DNA of the accused and where it was found. 5. Having been told during the application for a judge‑alone trial that the accused would be calling his own expert, my expectation was there must be some controversy about the way the Crown DNA expert had conducted her analysis or her conclusions. That was not the case. The evidence from Ms Friedman regarding the analysis and subsequent identification of both the accused and the complainant's DNA on both the complainant's neck and on the two cigarettes at the crime scene, and the accused's DNA on a single cigarette at the crime scene, was unchallenged. Ms Friedman was not cross‑examined. Ms Roebuck, the accused's DNA expert, accepted that the DNA analysis undertaken by Ms Friedman was correctly performed and correct in its conclusions. 6. The issue was what to make of that evidence. Having considered the substance of Ms Roebuck's evidence, in reality, she did not say anything beyond the uncontroversial principles set out in paras 13.1 to 13.8 of Ms Friedman's report at Exhibit 6. The Court has no difficulty accepting the proposition that DNA can be transferred via direct or indirect or secondary transfer. Her evidence that certain scenarios could lead to DNA being transferred and that she could not rule certain possibilities in or out, is readily accepted. 7. The presence of the accused's DNA on the complainant's neck is an extremely powerful strand in the Crown's circumstantial case, that he was the attacker. Particularly because, apart from the complainant's DNA, it was the only DNA on her neck from her own. Of course, the fact that there is someone else's DNA on her is consistent with the complainant's evidence. 8. The sixth part of the Crown's circumstantial case is perhaps its strongest. The three cigarette butts found at the scene are incredibly powerful evidence that the accused was not only at Civic Park at the relevant time, but because two of the three cigarettes have the complainant's DNA on them. The only reasonable inference is that the accused and complainant were there together. Further, the only rational explanation that explains both the DNA profiles on those cigarettes is that the accused was the male who held the cigarette to the mouth of the complainant and his own. It does not explain why there is DNA on two cigarettes, but the failure to explain that aspect of the evidence does not diminish the Crown case, nor do I consider the risk of contamination to be realistic, and I will deal with this in more detail shortly. 9. In summary, the six strands in the Crown case are compelling and support the Crown case theory. Accused's reasonable hypothesis consistent with innocence 1. Counsel for the accused put forward a number of submissions that are said to amount to a reasonable hypothesis consistent with innocence, and which rebut the Crown's circumstantial case. I will deal with each separately. Again, before I do so, I remind myself that while I cannot engage in groundless speculation, it is not incumbent on the accused to either establish some inference other than guilt, which should be drawn from the evidence, or to prove particular facts tending to support such an inference. If I think that the evidence as a whole is susceptible of a reasonable explanation other than that the accused committed the offence, he is entitled to be acquitted. That proposition reflects the fundamental principle that the Crown must prove the charge beyond a reasonable doubt. The First hypothesis: The accused was probably working at Fanny's on 2 to 3 May 2012 1. I am prepared to accept that the accused was working at Fanny's at the relevant time. At its highest, given the work he was performing, there is, of course, a possibility he came across the complainant during his shift work at the cloak room, passing by her, while he collected glasses or wiped tables, or just generally moved around the bar. There is certainly evidence to support this submission, but by itself this does not amount to reasonable hypothesis consistent with innocence. This argument really needs to be considered in the context of the DNA transference argument, which I will deal with shortly. The second hypothesis: The accused did not walk through Civic Park after leaving Fanny's Tavern on 3 May 2012 1. If I accept this proposition, he cannot be the person who attacked the complainant. It was submitted that a combination of the accused evidence and the CCTV suggest the accused intended to travel from Fanny's to home via public transport. However, the CCTV footage simply shows the accused standing outside Fanny's looking at his mobile phone. While I acknowledge his evidence was that he was looking at his phone for information about public transport, he could be looking at it for any reason, and I note that his evidence on this point was far from certain. His evidence as that he was merely "guessing" that he was looking at his phone to check he had not missed his bus. 2. I have already commented that I found his evidence that he was too technologically unsophisticated to use or top up an Apple card hard to accept. That apparent lack of sophistication does not sit well with the submission that he as using an app to check transport timetables. 3. I certainly accept the proposition that he had no reason to walk through the park given where his public transport was, but that is hardly the point. Civic Park is quite literally around the corner from the bus stop on the corner of Hunter and Darby Street, perhaps less than 150 metres away from it, judging by the maps that were tendered, and only slightly further away if he had gone to the old Civic Railway Station. 4. It was submitted that the accused did not appear to notice the complainant passing him in the CCTV footage and there was no evidence that he took an interest in her nor intentionally followed her out of Fanny's. In the Court's view, the brief CCTV footage does not support this submission. There is simply insufficient quantity and quality to permit an assessment whether the accused is "taking an interest" in the complainant. 5. Having considered the accused evidence on this second hypothesis, I find that it works against him. His evidence squarely places him in a position where he is in the vicinity of the complainant when she leaves Fanny's, unaccompanied, and not far from Civic Park. It is worth noting that both parties had left the club by 3.06am and the assault occurred sometime after 3.41am. In the Court's opinion, this does not amount to a reasonable hypothesis consistent with innocence. The third hypothesis: the accused DNA was on the cigarette butts found in the park because he shared cigarettes with others, or as a consequence of transference, or contamination and his DNA was not on the cigarettes as a result of using one of them to burn the complainant's lip during the alleged sexual assault 1. In considering this submission, it is worth observing the contents of Exhibit 9, the crime scene photographs. 2. Photographs 30 and 45 demonstrate where each of the markers A to H had been set out by police. Marker A is the tampon. Markers B and D are the two cigarette butts with the complainant and the accused's DNA. Marker G, has only the accused's DNA, which is around the corner of the fountain and a short distance away. Further away still is the Red Bull can at marker H. All three of the markers A, B and D are found in an area which is partly grass and partly concrete, an area that matches the description the complainant gives of where she was assaulted and her tampon removed. 3. The accused's first submission on this point is that the Court should infer that his DNA was found in mixed profile alongside the complainant's DNA on the cigarette butts at markers B and D either by his sharing of cigarettes or through direct or secondary transfer. I have carefully considered this submission. For it to be accepted, this scenario requires three things: 1. the accused shared his cigarette with someone who was the hidden perpetrator. 2. the person who he shared them with must not be a good shedder; alternatively he simply shared DNA where there was no testing undertaken. 3. somehow there was a transference of the complainant's DNA between the cigarettes. 1. All three of those things must have occurred for this submission to have force. 2. Dealing with each in turn, starting with the submission that the accused DNA is on the cigarettes because he gave them to "someone else", and that it was this person who was the hidden perpetrator. This has some superficial attractiveness to it until one thinks it through. The DNA was found on the filter end of the cigarettes. For this argument to have any merit, it would mean the accused touched the filter end of at least one, if not all three cigarettes while handing them over. It would also mean that he either gave away three cigarettes, which was not his evidence, or that somehow there was transference from one cigarette to three. This submission is highly speculative. There is simply no evidence of this actually happening. 3. The next part of the accused's argument requires even greater speculation. It is submitted that the accused left his DNA on the cigarettes. He gives that cigarette or cigarettes to the hidden perpetrator, who did not leave DNA on them, and the hidden perpetrator then assaults the complainant, leaving no detectable DNA on her and but somehow her DNA spreads across the three cigarettes. While I accept there was unidentified DNA described in Exhibit 6 relating to markers B and D, at such low levels that they were unsuitable for comparison, this submission does not explain why there is both the accused and the complainant's evidence on the two cigarettes. 4. The second argument the accused put forward is that he dropped three cigarettes on the ground at the crime scene, assuming no secondary transference. At a certain point or points in time prior to 3.41am on 3 May 2012, and the complainant's DNA was subsequently deposited on two of those cigarettes through direct touch, aerosol transfer or secondary transfer. No scenario was put forward as to how this could have occurred. Again, to accept this argument in the absence of some basis for it in the evidence, it is highly speculative. 5. It was submitted that the complainant's DNA was subsequently deposited onto the cigarettes, possibly via direct touch or aerosol transfer or secondary transfer. While it is proved that one of the mysteries of the case is why the complainant's DNA is on two cigarettes and the Crown has not explained this, it does not have to. However, for the submission that the complainant's DNA was transferred to a cigarette, then from one cigarette to another cigarette to have merit, there needs to be some evidence as to how that happened. Again, there is no evidence. 6. The third argument put forward is one of contamination. It is submitted that the accused's DNA was not in fact originally on the cigarettes, but rather it was added to the mixed‑profiles containing the complainant's DNA and the DNA of unknown third contributor, because SC Whiting contaminated the crime scene. For this argument to have any merit, it presupposes that the accused's DNA was in the crime scene already on another item and transferred from that innocent object to the cigarettes. The accused argument is that the accused DNA on the cigarette could be present because it was deposited by SC Whiting from the untested Red Bull can; the object found furthest from the two cigarettes with the complainant's and the accused's DNA. 7. The Court accepts as a matter of general principle that there is always a possibility that a crime scene officer has contaminated the scene. Again, what may appear to have a certain superficial attractiveness to it, falls away once the constituent parts of the submission are considered. It requires four discrete facts to exist simultaneously. It relies on: 1. the squashed Red Bull can found near the fountain to be the accused's; 2. it had his DNA on it; 3. it was thrown in the location where the complainant was assaulted; and 4. there is contamination from the crime scene officer moving the DNA from the can to the cigarettes. 1. I note that while Ms Roebuck's evidence did not in fact exclude the possibility of contamination of the crime scene, she also gave evidence that she saw no evidence of it. This scenario is simply too speculative to have any merit. While there is no doubt that the police should be criticised for their failure to test the Red Bull can, the Nerds packet, the small plastic resealable bag and the tampon, the absence of the testing of the can and the bare possibility it had the accused's DNA on it, and that DNA was transferred to two cigarettes which had the complainant's DNA on it, is too remote to create a reasonable hypothesis consistent with innocence. The fourth hypothesis: the complainant was not bitten on the right side of her neck where the swab was taken from 1. This submission touches on what I consider to have been a misconception that the accused laboured under throughout the trial. As the Crown correctly submitted during its closing address, the Crown does not have to prove the complainant was bitten to the right side of the neck. The accused has focussed on the mechanism of biting, ignoring the more important issue which is the presence of the DNA. I have already addressed the fact that the complainant's evidence was that she was bitten. 2. It was submitted that for the Court to conclude that the accused DNA was deposited on the complainant's neck because of the accused contacting her neck other than through a bite, the Court would have to find a rational basis to reject the complainant's clear evidence that she was bitten and then find a reasonable basis to conclude that the DNA was transferred during some point in the sexual assault. It is true the complainant did not give evidence that her assailant licked her neck, kissed her neck or put his hands around her neck. However, she did give evidence that she felt her attacker holding her down and pressing her upper body and, as I have already concluded, I accept the complainant believed she was bitten to the neck, even if that description is inaccurate. Something happened to her neck during the attack; even if her trauma influenced recollection, may have misdescribed it. I accept the complainant's evidence that she felt some pain to the neck. Again, I note that during her evidence the complainant referred to a bruise coming up sometime after the assault. 3. It is submitted that for the Court to find the accused guilty on this evidence, it would also require the Court to reject credible scientifically sound evidence from Ms Roebuck about the possibility of transference of the accused's DNA to the complainant's neck. The accused has focused on the scientific possibility of something, which is not the test the Court applies. 4. It was also submitted that the court would have to reject the accused's express denial of biting the complainant's neck in circumstances where there is no rational basis to reject the credible evidence given by Ms Roebuck about transference by rejecting a key aspect of the complainant's evidence and preferring a hypothesis of the court's own making. 5. I have rejected the accused's evidence as being no more than a bare denial in key aspects. For me to reject this submission from the accused does not mean I am rejecting the evidence of Ms Roebuck. Ms Roebuck's evidence is in the realm of scientific possibilities. What is before the Court is an actual plausible and highly compelling explanation for why the accused's DNA is on the complainant. Simply put, it was left there by her attacker. This is hardly a hypothesis of the court's own making. It was a substantial part of the Crown's case; so much was clear from the Crown's opening which expressly stated: "The accused had bitten or at least applied his mouth and pressure onto her neck". This submission also does not create a reasonable hypothesis consistent with innocence. The fifth hypothesis: the accused's DNA came to be in a sample derived from the swab to the right side of the complainant's neck because of transference 1. I accept that there is a theoretical possibility that the accused's DNA could have been in multiple places around Fanny's, not only because of his presence there that night but also because he often worked there. I also accept that there is a theoretical possibility that the DNA on the complainant's neck was not there because of the direct transfer from the accused but via a secondary transfer. I also accept that it is not possible to test how old DNA is. Ms Roebuck's evidence was that she could not provide likelihood estimates of scenarios which could result in DNA being able to be transferred from the accused to the complainant, merely the possibility. 2. Part of the accused's evidence was in reference to Exhibit F, the still CCTV images from Fanny's. The accused stated there were two photographs which literally put him in the same frame as the complainant. These photographs depict him standing with other people near an ATM with the complainant walking past. Based on Exhibit F I estimate the pair are about 1.5 metres apart. Ms Roebuck was not asked by defence counsel whether DNA could be transferred from a person in the position of the accused in Exhibit F and the complainant when are about 1.5 metres apart. 3. Of course, the fact that those photographs exist does not mean that they represent the only time the accused and complainant were near one another that night; there may have been other times, including while the accused was walking around cleaning, collecting glasses or if he was working in the cloak room. Ms Roebuck reached the conclusion ‑ which the accused submits was a reasonable one ‑ that the possibility of indirect transfer of his DNA to the complainant cannot be excluded. Firstly, I note the term "reasonable possibility" is the legal test, but Ms Roebuck's language was limited to her own discipline's constraint which is simply "possibility". 4. The difficulty with the accused's submission on this point is that notwithstanding the crowded hot and sweaty conditions said to characterise the unventilated Fanny's Tavern, only two peoples' DNA is found on the swab to the complainant's neck: her own and the accused's. 5. Ms Roebuck's final answer in cross‑examination on this topic is in the court's opinion quite devastating to the accused's case on this point. The Crown referred to it in its closing and it appears at transcript 285.45: Q. If there's a number of people in the nightclub in close proximity to each other, including to the complainant, why is there not more profile on the neck of the complainant? A. Yes, it is valid. There are no other significant contributions to the neck of the complainant and that is absolutely an observation of the evidence. It still doesn't enable me to probabilistically assess the likelihood of the evidence given the competing versions of events. 1. Out of all those people in the hot and sweaty bar the only person whose DNA is found on the complainant's neck is that of the accused. To me that is highly significant and substantially weakens the hypothesis that the DNA of the accused is simply there by some form of transference. 2. Ms Roebuck ended her answer with the statement "It still doesn't enable me to probabilistically assess the likelihood of the evidence given the competing versions of events" and this hardly helps the accused. 3. To properly understand that answer it is necessary to examine Ms Roebuck's earlier evidence where she had emphasised that the available data and science does not allow her to assess whether one scenario is more likely than another. She gave this answer at transcript 258.5 during her evidence‑in‑chief: Q. Where there is insufficient data does that mean that you can't give a statistical analysis with an assessment of probability, i.e. whether something is 71% more likely on this hypothesis than another? A. Yes. When we do a valuative reporting we are assessing probabilistically, so we're generating a number X times more likely for example. If we can't do that assessment, we're not able to give that probabilistic numerical answer as to how much more likely the DNA evidence is given one version over the other. However, that data can allow us to give general guidance and general information. But we have to be careful to ensure that it is clear and understood that we're not able to specifically weight which version of events is more likely." 1. I do not interpret Ms Roebuck's evidence as meaning that the Crown's hypothesis about why the accused's DNA is on the complainant's neck as having the equivalent merit as the accused's hypothesis about the possibility of transference at Fanny's, but rather she simply cannot compare the likelihood of particular scenarios without more evidence. Conclusion 1. In conclusion I remind myself of the directions I have already set out about circumstantial cases. In particular that in deciding whether there is a hypothesis reasonably open on the evidence that it is consistent with the accused's innocence. All of the circumstances established by the evidence are to be considered and weighed. This latter point needs to be emphasised. While it may be theoretically possible to look a potential hypothesis consistent with innocence to explain a discrete aspect of the evidence the role of the tribunal of fact is to take all the evidence together when considering it. 2. In submissions by the accused individual items of evidence have been separately considered. None of those items of evidence are indispensable indeterminate facts that must be proved beyond a reasonable doubt. Indeed during the trial, I rejected the accused's application for a Shepherd direction, (Shepherd v R [1990] 170 CLR 573) that is, that proof of the bite to the complainant's neck was an indispensable intermediate fact requiring proof beyond a reasonable doubt. 3. Having considered the accused's five basis which he contends are reasonable hypothesis consistent with evidence I do not accept them. While it is possible to raise questions about critical aspects of the Crown circumstantial case ‑ as I raised with the parties during submissions ‑ the evidence is not to be looked at in a piecemeal fashion but be considered as a whole. Moreover, in a circumstantial case each fact can inform an understanding of the significance of other facts. Therefore, it is the understanding of the combined significance of all of those facts which informs the issue of whether the Crown has proved the accused's guilt beyond a reasonable doubt in respect of the charges that he faces. 4. I have directed myself in accordance with the written directions document and I acknowledge the importance of the matters I must decide. I must act impartially, dispassionately, and fearlessly. I must not let sympathy of emotion sway my judgment. I must not act capriciously or irrationally. 5. As set out in the elements, the Crown must prove four elements beyond a reasonable doubt, specifically: 1. that at the time and place alleged the accused had sexual intercourse with the complainant; 2. the sexual intercourse occurred without the complainant's consent; 3. the sexual intercourse occurred knowing the complainant did not consent; and 4. the offence occurred in circumstances of aggravation because at the time of or immediately before the commission of the offence the accused did recklessly inflict actual bodily harm on the complainant. 1. I have considered the evidence and I have gone through all of these matters in significant detail. I have had regard to the submissions made by the Crown and the accused. I have concluded that when the evidence is viewed in combination it is open to the Court to be satisfied beyond a reasonable doubt that it is the accused who is the person who sexually assaulted the complainant sometime between 3.41am and 3.57am on 3 May 2012. 2. There was ample evidence for the Court to make this finding based on the fact that the evidence demonstrates: 1. both the accused and the complainant were at Fanny's bar during the early hours of 3 May 2012. 2. the complainant leaves Fanny's alone at 3.05, and at 3.06 ‑ just moments later ‑ the accused also leaves Fanny's; he was seen alone. 3. the accused's evidence that after leaving Fanny's he was going to get public transport home. Civic Park is very close to both the bus and train stops. 4. the diagrams and photograph of Civic Park demonstrate it is a large area. The discovery of the complainant's tampon is at the area she described as being attacked. In that small area there is the presence of the accused's DNA on three cigarettes, two of those cigarettes are in the immediate vicinity of the tampon and those cigarettes also have the complainant's DNA. 5. the accused's DNA was found on the complainant's neck when it was swabbed by Crime Scene Officer Whiting at about 8.30am on 3 May 2012. 1. The only reasonable inference to be drawn is that the accused was the person who attacked the complainant, leaving his DNA behind on her neck and the cigarettes at Civic Park. 2. My conclusion that it is the accused who committed this attack on the complainant is fortified by the complainant's description of her assailant as someone about her age, Caucasian and as someone she did not think had facial hair but was strong. It is a description that is very likely to apply to a young man who attended the gym twice a week. While it is true this description is very generic ‑ to use defence counsel's words ‑ it also happens to be a description which neatly fits with the accused at that time. This was the Crown's fourth argument on its circumstantial case. This is not powerful evidence, but it is not irrelevant. 3. The only rational inference from the combination of the evidence is that the accused committed this offence. None of the arguments put forward by the accused are reasonable hypothesis consistent with innocence. 4. Having found element 1 proved beyond a reasonable doubt I now move to the other elements. 5. Elements 2 and 3 were not seriously contested. Nonetheless the Crown must still prove them beyond a reasonable doubt. I am satisfied that those elements have been proved beyond a reasonable doubt based on the complainant's powerful evidence describing the sexual assault and her clearly articulated lack of consent. 6. With respect to element 4 the conclusion I have regarding this element is that the Crown has been unable to satisfy me beyond a reasonable doubt that the offence occurred in circumstances of aggravation. I am not satisfied that at the time of or immediately before the commission of the offence the accused did recklessly inflict actual bodily harm on the complainant. 7. As the Crown has proved elements 1, 2 and 3 of the offence beyond a reasonable doubt, I have considered the statutory alternative provided for of s 80AB(1) of the Crimes Act. Verdict 1. On that basis my verdict is that Mr Murphy is guilty of the offence of having sexual intercourse with the complainant without her consent pursuant to s 61I of the Crimes Act 1900. ********** Amendments 11 September 2024 - Amendments made to [27], [40], and [65] to anonymise the witnesses. 12 September 2024 - Amendments made to [91] to anonymise the witness. 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: 12 September 2024