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  • Writer's pictureGeoff Harrison

Unreasonable Verdict

Updated: Sep 29, 2023


Published by Geoff Harrison | 23 August 2023


The principles relating to establishing an unreasonable verdict by the jury or tribunal of fact were set out by Kirk JA in Lee v R [2023] NSWCCA 203 (below) at [25]:


The principles relating to this ground of appeal are well-established. They have recently been summarised by the High Court in Dansie v The Queen (2022) 96 ALJR 728; [2022] HCA 25 at [7]-[15], by reference in particular to the decision in M v The Queen (1994) 181 CLR 487; [1994] HCA 63. The question which the appeal court must ask itself is whether it thinks that upon the whole of the evidence it was open to the trier of fact to be satisfied beyond reasonable doubt that the accused was guilty, that question being one of fact which the court must decide by making its own independent assessment of the evidence. The court is to determine for itself whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the accused is guilty of the offence. In answering that question the court must take into account that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and that it has had the benefit of having seen and heard the witnesses. However, it is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by the appeal court that the court may conclude that no relevant miscarriage of justice has occurred.


Cases:

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Lee v R [2023] NSWCCA 203


Hearing dates: 26 June 2023

Date of orders: 21 August 2023

Decision date: 21 August 2023

Before: Kirk JA at [1];

Button J at [103];

Lonergan J at [187]

Decision:

1 Grant leave to appeal.

2 Appeal dismissed.

Catchwords:

CRIME — Appeals — Appeal against conviction — Unreasonable verdict — Contradictory testimony — Complainant’s evidence not inherently implausible — Advantages of the jury over appeal court include the way in which juries are constituted and operate — Jury’s verdict not unreasonable

CRIME — Appeals — Appeal against conviction — Miscarriage of justice — Whether directions were required under ss 292-292E of Criminal Procedure Act 1986 (NSW) — Transitional provisions — Phrase “the hearing of the proceedings began” refers to time of first arraignment not commencement of the trial —Value of certainty in the law — Where parties and trial judge were under shared misapprehension as to directions applying — Where directions not challenged by counsel at trial where it was open to do so even on assumption provisions applied — No miscarriage of justice caused by directions

CRIMINAL PROCEDURE — Trial — Directions to jury — State of mind requirements in sexual offences — Whether directions regarding inadvertent recklessness were correct — Distinction between advertent and inadvertent recklessness — No miscarriage of justice caused by directions

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes Amendment (Consent-Sexual Assault Offences) Act 2007 (NSW)

Crimes Amendment (Sexual Offences) Act 2003 (NSW)

Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 (NSW).

Crimes Legislation Amendment Act 2014 (NSW)

Criminal Appeal Act 1912 (NSW)

Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW)

Criminal Procedure Act 1986 (NSW)

Evidence Act 1995 (NSW)

Supreme Court (Criminal Appeal) Rules

Cases Cited:

ARS v R [2011] NSWCCA 266

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

Beattie v R [2021] NSWCCA 291

Bektasovski v R [2022] NSWCCA 246

Blackwell v R (2011) 81 NSWLR 119; [2011] NSWCCA 93

Castle v R (2016) 92 NSWLR 17; [2016] NSWCCA 148

Dansie v The Queen (2022) 96 ALJR 728; [2022] HCA 25

Director of Public Prosecutions Reference No 1 of 2019 (2021) 274 CLR 177; [2021] HCA 26

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

GBF v The Queen (2020) 271 CLR 537; [2020] HCA 40

GG v R (2010) 79 NSWLR 194; [2010] NSWCCA 230

Greenhalgh v R [2017] NSWCCA 94

Jackmain (a pseudonym) v R (2020) 102 NSWLR 847; [2020] NSWCCA 150

M v The Queen (1994) 181 CLR 487; [1994] HCA 63

MK v R; RB v R [2023] NSWCCA 180

Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221

Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12

Pollard v Commonwealth Director of Public Prosecutions (1992) 28 NSWLR 659

R v Adamcik, Court of Criminal Appeal, 22 November 1996, unreported

R v Coleman (1990) 19 NSWLR 467

R v Germakian (2007) 70 NSWLR 467; [2007] NSWCCA 373

R v Hemsley (1988) 36 A Crim R 334

R v Henning (Court of Criminal Appeal, 11 May 1990, unreported)

R v Kitchener (1993) 29 NSWLR 696

R v Staines (1974) 60 Cr App R 160

R v Tolmie (1995) 37 NSWLR 660

R v Zekry Bishara [2022] NSWDC 291

Roberts v R [2023] NSWCCA 187

Stephens v The Queen (2022) 273 CLR 365; [2022] HCA 31

Z (a pseudonym) v R [2022] NSWCCA 8

Texts Cited:

Hansard, Legislative Assembly, 20 October 2021

New South Wales Law Reform Commission, Consent In Relation to Sexual Offences (September 2020).

Category: Principal judgment

Parties:

Jim Lee (Applicant)

Rex (Respondent)

Representation:

Counsel:

T Game SC and C O’Neill (Applicant)

G Newton SC and A Bonnor (Respondent)

Solicitors:

Murphy’s Lawyers Inc (Applicant)

Solicitor for Public Prosecutions (Crown)

File Number(s): 2020/00261431

Publication restriction: Statutory non-publication order regarding the victim’s name or anything which could identify her.

Decision under appeal

Court or tribunal:

Sydney District Court

Jurisdiction:

New South Wales

Citation:

[2022] NSWDC 482

Date of Decision:

14 October 2022

Before:

Judge Noman

File Number(s):

2020/261431

HEADNOTE


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


The applicant was found guilty by a District Court jury of two counts of sexually assaulting a young woman during a party. The first count was a charge of sexual touching without consent pursuant to s 61KC(a) of the Crimes Act 1900 (NSW) as it then stood. The second count was sexual intercourse without consent contrary to then s 61I of the Crimes Act, involving digital penetration of C’s vagina whilst she was sleeping. He sought leave to appeal against his conviction, raising three grounds:


the verdicts were unreasonable;


a miscarriage of justice was occasioned by her Honour’s directions to the jury in accordance with ss 292A-292E of the Criminal Procedure Act 1986 (NSW), where it was argued that those provisions did not apply to this trial;


a miscarriage of justice was occasioned by her Honour’s directions to the jury that the Crown will have proved the accused knew the complainant did not consent to sexual intercourse if the accused was reckless as to whether the complainant consented because he did not even think about whether she consented but went ahead not caring or considering it was irrelevant whether she consented.


The Court granted leave to appeal but dismissed the appeal (per Kirk JA, Lonergan J and Button J agreeing as to grounds 1 and 2, and per Button J, Kirk JA and Lonergan J agreeing as to ground 3):


As to the unreasonableness of the verdict


1. That a complainant’s evidence is contradicted by apparently plausible evidence of a defendant does not mean the defendant is entitled to be acquitted on appeal: at [28]. An advantage a jury has over an appeal court in assessing the facts is that it involves the assessment of 12 people drawn randomly from the community, seeking to achieve a unanimous verdict, who bring to bear a diverse range of human experience, understanding and judgment in assessing the testimony they have heard: at [29].


M v The Queen (1994) 181 CLR 487; [1994] HCA 63; Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, applied


2. The applicant’s attempt to downplay the significance of demeanour considerations in this case was undercut by directions of the trial judge and the closing address of senior counsel for the applicant: at [33]-[35].


3. Upon a review of the evidence, it was reasonably open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. The particular arguments made by the applicant did not establish to the contrary: at [36], [54], [103], [188]-[191].


As to the directions under ss 292A-292E


4. The parties and the trial judge assumed that new provisions in the Criminal Procedure Act (ss 292-292E), which required certain additional directions to be given in sexual assault trials, applied to the trial. The issue turned on construction of the phrase in the applicable transitional provision of whether “the hearing of the proceedings began before the commencement of the amendment”. The phrase should be construed as referring to proceedings on indictment from the time an accused is first arraigned in the court which goes on to hear the substantive trial of the accused, rather than when the trial commenced. That phrase has previously been construed in that manner, and it is reasonable to assume that Parliament intended its words to carry the same meaning when regularly adopting that phrase to achieve the same type of delineation in transitional provisions. Certainty is an important value in the law, which favours a consistent interpretation. That construction is also consistent with the reasonable expectations of those affected: at [76]-[79]. The provisions thus did not apply to the trial here.


Bektasovski v R [2022] NSWCCA 246; R v Adamcik, 22 November 1996, unreported; GG v R (2010) 79 NSWLR 194; [2010] NSWCCA 230; Stephens v The Queen (2022) 273 CLR 365; [2022] HCA 31, considered


Director of Public Prosecutions Reference No 1 of 2019 (2021) 274 CLR 177; [2021] HCA 26, applied


5. The directions were discussed by the parties and modified according to the circumstances of the case: at [83]. It would be surprising if directions directed to dispelling misconceptions were considered to be productive of injustice simply because they were given in a case where there was no legal requirement to do so: at [88]. The argument that the impugned directions caused a miscarriage of justice in the circumstances of this case is unpersuasive. It is not the case that the directions simply had nothing to do with what was in issue in the trial: at [89]. The substantial absence of objection by senior counsel to the impugned directions strongly suggests that in the atmosphere of this trial the directions caused no injustice to the accused: at [100].


ARS v R [2011] NSWCCA 266, applied


As to the directions relating to consent


6. The introduction of unreasonable belief in consent as part of the relevant mental element has not implicitly led to the abolition of the category of failure to turn one’s mind to the question of consent. The latter category refers to a state of complete non-advertence. The former category refers to a state of active advertence; namely, belief in consent. One is an actively held belief in the presence of consent, and the other is no state of mind at all about its presence or absence: at [154]-[155].


R v Tolmie (1995) 37 NSWLR 660; Banditt v The Queen (2005) 224 CLR 262; [2005] HCA 80; considered


7. Non-advertent recklessness was first spoken of by this Court in 1988, and it was confirmed in the first part of the 1990s. Parliament repeatedly re-enacted the portion of the Crimes Act dealing with sexual offences between then and 2008, when the fourth category of mental element was introduced by statute. The presumption of re-enactment indicates that Parliament did not intend to collapse the two distinct categories of intention: at [163]-[165].


Director of Public Prosecutions Reference No 1 of 2019 (2021) 274 CLR 177; [2021] HCA 26, applied


8. The direction given here, reflecting the Bench Book, was relevantly that one sufficient possibility was that “the accused was reckless as to whether the complainant consented because he did not even think about whether she consented but went ahead not caring, or considering it was irrelevant whether she consented”. This speaks of consideration of something, which has a flavour of turning one’s mind, or advertence, to the question of consent. The direction also speaks of consent or lack thereof being assessed as being simply “irrelevant” which has a flavour of non-advertence: at [177]. It is not easy to see how the verdicts are built on a wrong foundation because an aspect of the element was explained twice, albeit using different terminology: at [181]. Rule 4.15 also has an important role to play here: at [182].


JUDGMENT


1. KIRK JA: The applicant, Mr Jim Lee, was found guilty by a District Court jury of two counts of sexually assaulting his friend, whom I will call C. The assault occurred at a party that the applicant was hosting on 5 September 2020, at a house in Bellevue Hill, Sydney, owned by his father. The first count was a charge of sexual touching without consent pursuant to s 61KC(a) of the Crimes Act 1900 (NSW) as it then stood. This related to performing a “motorboat” on C’s breasts; that is, moving his head around and making a sound like blowing bubbles or like a motor. The second count was sexual intercourse without consent contrary to then s 61I of the Crimes Act, involving digital penetration of C’s vagina whilst she was sleeping.


2. The applicant relies on three grounds of appeal:


1. the verdicts were unreasonable;


2. a miscarriage of justice was occasioned by her Honour’s directions to the jury in accordance with ss 292A-292E of the Criminal Procedure Act 1986 (NSW) (CPA);


3. a miscarriage of justice was occasioned by her Honour’s directions to the jury that the Crown will have proved the accused knew the complainant did not consent to sexual intercourse if the accused was reckless as to whether the complainant consented because he did not even think about whether she consented but went ahead not caring or considering it was irrelevant whether she consented.


3. Leave to appeal should be granted but the appeal dismissed. As to the first ground, the verdicts were not unreasonable.


4. As to the second ground, the trial judge and both sides below considered that the jury directions introduced by ss 292A-292E of the CPA were applicable. On the better view of the applicable transitional provisions those provisions did not apply to the applicant’s trial. However, even on the mistaken assumption that those provisions applied it was open to the applicant to object to the giving of the directions. The fact that the senior counsel appearing for the applicant did not do so, save in one limited respect, illustrates that in the atmosphere of the trial, having regard to the issues at play, the directions caused no prejudice.


5. The third ground is not made out for the reasons given by Button J, with which I agree.


6. I will address grounds 1 and 2 in turn. Before doing so, it is useful to outline briefly the context in which the grounds arose. The summary of the position of the two sides below is taken substantially from the written submissions of the applicant, which fairly and succinctly captured the core case of either side.


The cases of the parties at trial


The Crown case


7. The applicant and complainant had been friends since 2017, when the pair met whilst studying at Peking University in Beijing. The complainant moved to Sydney in February 2020. The applicant moved to Sydney in around May 2020.


8. On 5 September 2020 one of the applicant’s friends, JS, invited C to a party at the applicant’s house in Bellevue Hill. C had become friends with JS through the applicant.


9. C arrived at the applicant’s Bellevue Hill house around 6:15pm. JS and the applicant were already present. They proceeded to drink alcohol and socialise throughout the night with the various guests. At some point, C engaged in consensual sexual activity with CS, who was a mutual friend of C and the applicant.


10. At the end of the evening a few people decided to sleep at the house. C found a bedroom (the first bedroom) and lay on the bed with CS. Shortly thereafter, JS and the applicant entered the room and began rolling around on the bed as if they were playfighting. CS moved to the floor, where he had a swag. JS and the applicant continued to roll around the bed while C was in it.


Count 1


11. On the Crown’s case, this is when Count 1 occurred. The applicant began trying to take off C’s clothing, particularly around her breasts. He then put his hand down her dress and between her breasts. He said “[C] has nice boobs”. C told him to stop and to shut up, but he continued to rub his face between her breasts. The applicant then said “how good is a motorboat” and began to blow into the complainant’s breasts and move his head around her breasts. Again C told him to stop, but the applicant tightened his grip on C’s waist and continued to press his face into her breasts. C said “just stop” and reminded the applicant that he had a girlfriend. The applicant again grabbed C tighter, wrapping his arms around her waist. The applicant’s conduct only stopped when C left the room. C found another bedroom (the second bedroom) in the house and fell asleep. C had not consented to the applicant touching her breasts with his face.


Count 2


12. Some time after C had fallen asleep in the second bedroom the applicant came in and woke C, asking her to sleep in the master bedroom with JS and him because it was more comfortable. C agreed to sleep in that bedroom with JS and the applicant. The bed in that room was very large.


13. After moving to the master bedroom, C lay on the bed nearer the window, with JS on the side nearer the door and the applicant in between. The complainant was wearing a dress but had removed her underwear earlier when she was in the second bedroom. C wrapped herself in a doona. The applicant was trying to “spoon” her in a hug, pressing his front against her back. There was some brief conversation and then C fell asleep.


14. C woke up to the applicant’s fingers repeatedly penetrating her vagina. Her dress had been raised up so that her bottom half was exposed, and the doona was no longer around her. C estimated that the digital penetration lasted for around 6 to 10 seconds after she had woken up. C then pushed the applicant’s fingers away from her waist and twisted her body around. She said “What the fuck, Jim”. The applicant replied “Shhh” and grabbed hold of her, with his right hand over her mouth and his left holding her more tightly around the waist. C described being frozen at that moment as she was shocked. After a few minutes, when his hold relaxed, C left the master bedroom. C had not consented to the digital penetration.


15. C returned to the first bedroom and fell asleep. The next morning JS came into her room, asked how she had slept, whereupon she said to him “Can you believe that Jim fingered me last night?”. She left the house during the morning. During the afternoon and evening of 6 September 2020 C continued to discuss the offences with JS over Facebook messages, in terms consistent with her account. Amongst other things she said that “[w]hat he did to me is the literal definition of rape”, and that “Jim kept trying to suck my boobs”.


16. On that day, 6 September, C also called the applicant. She said “What you did to me amounts to categorical rape”, and the applicant replied: “Yeah I know, it was pretty bad hey” (matters she recorded in her message exchange with JS). She told him she was very angry, he should never do this to anyone else, she was mortified he had done this given their friendship and her attempts to get away from him. He agreed with her and said “I’m sorry I shouldn’t have done it”.


17. On 7 September 2020 C told her friends LB and GC what had occurred. She also reported the matter to the Police, and had a hospital medical examination that night.


The defence case


18. The defence called character evidence. Defence witnesses described the applicant as intelligent, loyal, respectful, someone of honesty and integrity, warm, caring, kind, and helpful. He has no prior criminal convictions. He gave evidence in Court and was cross-examined.


Count 1


19. The applicant’s evidence was that after the party he went into the first bedroom with JS. C was with CS on the bed. The applicant and JS got onto the bed with C and CS. CS got off the bed, went into an ensuite for a while (with the applicant at one stage seeking to assist him to get hot water out of the shower), then returned and went to sleep in his swag, on the floor. The applicant got back on the bed, with C in the middle, and was cuddling C.


20. The applicant denied ever touching her breasts, or putting his face near her breasts, or saying anything about C’s breasts or motorboats, or performing a motorboat. C and the applicant chatted for a while, after which he left the room. He went to the master bedroom and called his ex-girlfriend, who was in Shanghai at the time.


Count 2


21. After the phone call the applicant went back to the first bedroom. He saw JS and CS, but did not see C. He called to JS, and together they searched the rest of the house for C. They discovered her in the second bedroom and asked her if she wanted to sleep in the “big bed”. C agreed to come into the master bedroom, where she got into bed with JS and the applicant.


22. The applicant was lying in between JS and C. The applicant was under the covers and described himself as cuddling C, first face to face, then she turned around and they cuddled with her back to his front. He began caressing up and down her back and along her shoulders and waist. C moaned comfortably, and then told him to stop because she wanted to go to sleep. The applicant stopped moving his hands, though he continued to hug C, with his hands on her stomach. The applicant denied putting his fingers in C’s vagina.


23. The applicant agreed that on 6 September 2022 C had called him and said “I want to talk about last night” and “We’ve been friends for so long. Like, I can’t believe we did that”. She also said “I feel disrespected and I didn’t expect anything like that to happen”. The applicant said “I’m really sorry. It shouldn’t have happened” and “I promise it won’t happen again”. The applicant denied that C had accused him of “categorical rape” or talked about putting his fingers in her vagina. He said that he had apologised “[b]ecause she was upset at me and I’d pushed the boundaries or our relationship and made her uncomfortable”, and because “I shouldn’t have, like, caressed her in bed, especially when there was someone else around”.


The central issue in the case


24. It can be seen that the critical dispute in this case was whether the alleged acts involved in the two counts occurred. The applicant’s case was not, for example, that they had occurred but were with her consent, or that he did not have the requisite mental element. Nevertheless, those matters were not conceded and it remained necessary for the Crown to prove all elements of the offences beyond a reasonable doubt.


Ground 1: the claimed unreasonable verdict


The applicant’s general arguments as to unreasonable verdict


25. The principles relating to this ground of appeal are well-established. They have recently been summarised by the High Court in Dansie v The Queen (2022) 96 ALJR 728; [2022] HCA 25 at [7]-[15], by reference in particular to the decision in M v The Queen (1994) 181 CLR 487; [1994] HCA 63. The question which the appeal court must ask itself is whether it thinks that upon the whole of the evidence it was open to the trier of fact to be satisfied beyond reasonable doubt that the accused was guilty, that question being one of fact which the court must decide by making its own independent assessment of the evidence. The court is to determine for itself whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the accused is guilty of the offence. In answering that question the court must take into account that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and that it has had the benefit of having seen and heard the witnesses. However, it is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by the appeal court that the court may conclude that no relevant miscarriage of justice has occurred.


26. I have reviewed all of the evidence given at the trial.


27. At the heart of the applicant’s argument on ground 1 is the contradiction between the testimonies of C and the applicant. The applicant argues that his own testimony provides a reasonable narrative which is not contradicted by any corroborated evidence, and therefore that the jury must have entertained a reasonable doubt as to the applicant’s guilt. In other words, in light of his own account the jury could not have accepted beyond reasonable doubt that the two counts which C described as occurring did in fact occur.


28. That argument overstates the force of contradictory testimony in an appeal of this kind. A great many cases – especially those involving sexual assault – depend upon the jury’s evaluation of the evidence of one person in light of the evidence of another or others. That a complainant’s evidence is contradicted by apparently plausible evidence of a defendant does not mean the defendant is entitled to be acquitted on appeal. Nor does the fact that a complainant’s evidence was uncorroborated mean that the jury must have entertained a reasonable doubt: Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [53]. Witnesses for either side may forget, exaggerate, reconstruct and/or lie. Determining where the truth lies when faced with competing testimony is a commonplace feature of criminal trials. The jury is “the body entrusted with the primary responsibility of determining guilt or innocence”: M at 493. The appeal court must apply the principles summarised above.


29. The applicant correctly noted that the High Court has cautioned against placing too much weight on considerations of demeanour in the sense of how witnesses appear: eg Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [30]-[31]. But the applicant’s submissions tended to underplay the significance of the fact that the evaluation of competing testimony is made by a jury. Like all triers of fact, the jury has the natural advantages of seeing and hearing the witnesses give evidence. This tends to be a more significant feature of criminal trials than civil ones as in the former, in general, all disputed witness evidence is given orally. In any case, a jury has a further advantage in assessing the facts, namely that it involves the assessment of 12 people drawn randomly from the community, seeking to achieve a unanimous verdict, who bring to bear a diverse range of human experience, understanding and judgment in assessing the testimony they have heard. Senior counsel for the applicant at trial put the point well in his closing address to the jury, saying that “[y]our common sense, your experience of relationships, your understanding of the way people interact with each other, are central to your job of working out what happened here, and it is also central to the decisions that you have to make”.


30. Those words are consistent with part of the High Court’s explanation in Pell as to why, in general, appeal courts should not review video recordings of a complainant’s evidence (citation omitted):


[37] Secondly, the assessment of the credibility of a witness by the jury on the basis of what it has seen and heard of a witness in the context of the trial is within the province of the jury as representative of the community. Just as the performance by a court of criminal appeal of its functions does not involve the substitution of trial by an appeal court for trial by a jury, so, generally speaking, the appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent upon the evaluation of the witnesses in the witness-box. The jury performs its function on the basis that its decisions are made unanimously, and after the benefit of sharing the jurors' subjective assessments of the witnesses. Judges of courts of criminal appeal do not perform the same function in the same way as the jury, or with the same advantages that the jury brings to the discharge of its function.


[38] … The assessment of the weight to be accorded to a witness' evidence by reference to the manner in which it was given by the witness has always been, and remains, the province of the jury. …


31. Thus, as the High Court went on to explain at [39], where it is alleged on appeal that a jury verdict is unreasonable or cannot be supported by the evidence, in a case such as that one (and this) the appeal court “proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable”. That does not mean the complainant’s evidence must be accepted; the appeal court must consider whether “the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted”: M at 494.


32. The applicant argued that in this case there was a reduced emphasis on the jury’s need to assess the demeanour of the witnesses, going so far as to suggest that “resolution of this ground does not turn on any advantage the jury had in observing the evidence of the complainant and the applicant”. The argument was substantially based on the claim that “[t]here was nothing about the presentation of either the complainant or the applicant adverted to in either closing address that would suggest the jury had some advantage over this court in assessing their evidence”.


33. The argument cannot be accepted. Considering conflicting testimony of the kind at issue here is a quintessential jury function. In any case, the factual premise of the argument is incorrect. It is undercut by the trial judge’s directions to the jury, which indicated that demeanour and impression might assist the jury’s deliberations, albeit within limits:


You are entitled to consider the impression a witness made or the demeanour of the witness. Demeanour and impression may assist you. However, the demeanour of a witness should be approached with some care. Most of the witnesses were civilian witnesses giving evidence in a Court. This may entail additional stress given the unfamiliarity of the environment and the formal structure of questioning.


34. Moreover, the applicant himself appealed to demeanour as a relevant consideration. At the commencement of his closing address, senior counsel for the applicant said to the jury that the applicant’s evidence “was forthright, it was strong and he has put his position clearly”. Senior counsel went on to emphasise the point near the end of his address:


the accused gave forthright and convincing evidence. As you know he didn't have to give evidence, but he did, and he's a pretty good witness. He answered every question directly, succinctly. When my learned friend cross-examined him, he made concessions that were obviously true like "You wanted and hoped that it might go further in bed with the complainant?" You remember the exact question but that was the effect of it. "Yes, I sort of did. I probably did." My friend had every opportunity to unstitch his evidence. His cross-examination with all due respect was careful, thorough, well prepared, well executed, and didn't dint the accused one bit. Jim Lee came across as a decent, honest, truthful, and reliable witness. That's a very important point when you are considering whether the prosecution have proved his guilt.


35. Even the applicant’s written submissions to this Court claimed that he had “answered all questions that were asked of him in a manner that could properly be described as forthright, strong and clear”.


36. The applicant submitted that there “were no issues of credibility in relation to the applicant’s evidence” because he “was not caught out in any lie” and “did not give inconsistent versions”. Those facts do not mean that there was no issue as to his credibility. His version was inconsistent with the testimony of C in key respects. Taking account of all the evidence, it was well open to the jury to disbelieve his version of events and, having set his version aside, to believe C’s account with respect to the two charges. Specific criticisms of C’s evidence made by the applicant are considered below.


37. As noted above, the central dispute was not as to whether consent was given but whether the acts occurred at all. In that context, the complaint evidence is significant. JS confirmed that C had told her first thing the next morning, on 6 September 2020, that the applicant had “fingered” her. That and other details going to both counts were supported by the text exchange between C and JS over the course of that day. Further, she complained to the police on 7 September 2020. She told her friend LB that “I’ve been sexually assaulted” or “I’ve been raped” that day, and LB said that C seemed distressed when LB went to support her during the hospital examination. In another phone call on that day C told another friend, GC, that she had been raped by the applicant.


38. There is also the fact of the applicant’s apology to C during their phone call on 6 September (see [23] above). His claim that he was only apologising for pushing boundaries and making her feel uncomfortable was not one that the jury was required to accept. That he had something to apologise for did not sit comfortably with his account of their consensual caressing.


39. Further, he denied C’s claim that she had said to him that “What you did to me amounts to categorical rape”, which she said he had accepted. If the exchange occurred as C had said it did, that would represent an admission going to the second count. In her messaging with JS that day she has recorded that exchange. The language of “categorical rape” also echoes what she had said earlier in her messaging with JS that day, namely ““[w]hat he did to me is the literal definition of rape”. These matters lend real plausibility to her account of the phone conversation with the applicant.


Specific factual arguments


40. The applicant sought to rely on a series of particular points which were said to raise a reasonable doubt.


41. First, a somewhat unusual feature of this case was the presence of two other people when the charged conduct occurred. Both CS and JS were in the first bedroom when the first offence was said to have occurred, with JS on the bed and CS in his swag on the floor according to C’s evidence. And JS was present on the bed in the master bedroom when the second offence was said to have occurred. However, their evidence does not throw much light on whether the charged acts occurred, as was implicitly accepted in the applicant’s submission that their evidence “was not inconsistent” with that of the applicant.


42. CS gave evidence that he did not see the applicant do anything inappropriate to C, nor did he hear her protest. This evidence is not decisive as to what actually occurred. Both CS and the applicant testified that some time after the applicant and JS entered the first bedroom, CS left the room for some time to try to have a shower in the ensuite bathroom, although he could not get the hot water to work. When he returned, his evidence was that he fell asleep in his swag on the floor in no more than five minutes. When he fell asleep C, the applicant and JS were all still in the first bedroom. C’s evidence was that the conduct the subject of count 1 ended when she got up and left the room. On CS’s evidence, that must have been after he had gone to sleep, given that C was still in the room when he went to sleep. Thus his evidence does not establish whether the charged conduct did or did not occur.


43. As for JS, in summary his evidence was that he did not see or hear anything untoward occur, nor, in the first bedroom, did he hear the applicant say C had “nice boobs” or “how good is a motorboat”. However, he said that “I was pretty intoxicated and I was tired” (similarly, C said that she believed JS was “drunk”). He said that he “hadn’t properly fallen asleep” in the first bedroom, which the jury might reasonably have viewed somewhat sceptically. In the master bedroom, after C had come in JS said that he heard some giggling and moaning interactions between C and the applicant, but that he fell asleep within a minute or two, thus throwing little light on what occurred as regards the conduct the subject of count 2. Overall, his evidence was somewhat unclear and manifested a poor memory of events. In significant respects his evidence was inconsistent with that of other witnesses. To give a few examples: JS said that in the first bedroom CS was on the floor the whole time as opposed to starting on the floor and ending up in the swag; JS did not recall CS going into the ensuite; he did not recall the order in which people left the first bedroom; and himself said that in the master bedroom the complainant was in the middle of the bed between he and the applicant, whereas both of the other two said that the applicant was in the middle. These examples tend to confirm his own suggestion that he was intoxicated. Again, thus, the evidence of JS throws little light on whether the charged conduct occurred (leaving aside his evidence as to C’s complaint the next day).


44. Secondly, the applicant submitted that that the alleged actions were so brazen that it was improbable that they occurred. The applicant’s characterisation is inapt. It is not unusual for young adults to engage in sexual conduct after parties involving consumption of alcohol, even in rooms where there are other people. And the applicant’s own evidence was that his apology was in part for caressing her in bed “especially when there was someone else around”. Thus the applicant himself accepted that he had acted in a somewhat brazen manner, even on his own case.


45. Thirdly, the applicant placed emphasis on the fact that C had agreed to go into the master bedroom to sleep in the same bed as JS and the applicant after count 1 had occurred. The applicant argued that this weighed against the likelihood that count 1 had occurred at all. There is some initial force in suggesting that it is counter-intuitive that the victim of the first charged conduct would go to another bedroom with the person who had assaulted her. Yet victims of sexual assault do not always respond in ways that appear rational or intuitive to others who have not had that experience forced upon them. C gave evidence that “I kind of wanted to stay there”, referring to the second bedroom, but said that she was less concerned about moving to a bed with the applicant because JS would be in the room with them. On one view, she gave in to some pressure from the applicant. Assessment of the significance of this evidence was a matter for the jury. The issue was the subject of submissions by defence senior counsel in closing.


46. Fourthly, the applicant pointed to the events surrounding a game of Twister which had occurred earlier in the evening. C gave evidence that the applicant had touched her intimately, in a way that made her feel uncomfortable, during the game. She described being forced to remain in particular positions and feeling that she was unable to get away. The applicant argued that C’s evidence on this point was unreliable. Video footage and photos of the event are said to show C enjoying the game. CS and another witness, IM, also gave testimony that C appeared to be enjoying the game.


47. The Crown did not press the alleged touching during the game of Twister as an offence in itself. It was led as part of the background for the later events. It can be accepted that C appeared to be enjoying herself during the game. However, C testified to feeling uncomfortable, rather than making any outward display of discomfort. She said in re-examination that “I tend to laugh when I’m even uncomfortable as a way to kind of brush past, you know, how I feel about situations”. That explanation is plausible. Her appearance during the game could be understood in that light. In any event, as noted, the Twister game did not form a cornerstone of C’s account or the Crown’s case. It occurred prior to the conduct the subject of the charges, in a different room and context.


48. Fifthly, the applicant pointed to an inconsistency in one part of her evidence relating to the Twister game. C said in cross-examination that she had exchanged Facebook messages with her friend LB after the game of Twister, by which time she had started to feel uncomfortable. She did not suggest that she referred to this in her message; rather the exchange was (implicitly) connected to whether or not C would go to LB’s house. In fact C exchanged messages with LB at 9:54pm and 10:12pm, whereas photographic evidence suggested the game of Twister occurred around 10.30pm. This fact was pointed out in the cross-examination, and it was suggested to C that the idea she had been uncomfortable during the game of Twister was false, which she rejected.


49. The applicant’s error as to timing does not undermine her evidence in any significant way. The Crown never sought to rely on C’s contact with LB as proof of any discomfort. At most her error was a minor one as to timing. It was senior counsel for the applicant who framed the messages as a time-marker of C’s comfort or otherwise at the party. The inaccuracy of the timing in C’s recollection does not bear on the broader assessment of the truthfulness of her evidence.


50. Sixthly, the applicant argued that there was an inconsistency in C’s evidence regarding data on her phone. C suggested that she did not book an Uber home from the party because she did not have data on her phone. The applicant called evidence from a Telstra witness indicating that C did in fact have data on her phone that night. It was suggested that this undermined her claim about why she stayed at the applicant’s house, and her claim that she was feeling uncomfortable. The argument is overstated. When it was suggested to her in cross-examination that she did have mobile data, she said “I was connected to WiFi potentially. I don’t remember precisely”. She also then referred to a concern about the costs of catching an Uber. That point was reiterated later, when she said that she had planned either to catch a train or get a lift to LB’s house after the party, and mentioned a concern about surge pricing on Uber during a weekend night. She did not suggest that a lack of mobile data was her main reason for not leaving the party. It was not her evidence that she certainly would have left the party if she did have data. She may also simply have been mistaken about whether or not she had data, or may have misremembered. The point is not of great significance.


51. Seventhly, the applicant pointed to a photograph which C took at 8:09am on the morning of 6 September, shortly before she left the applicant’s house. The photograph showed a view from the terrace of the house over the bay. C posted the photo as a temporary “story” to her Instagram account with the caption “morning vistas”. The applicant argued that it was “difficult to reconcile this activity whereby the complainant appears to be revelling in the views from the applicant’s house, with her assertion that just hours earlier the applicant had engaged in non-consensual sexual activity with her”. Yet, as noted, there is no conventional response to sexual assault. Individuals may have a range of responses, which do not necessarily involve outward manifestations of grief or trauma. The applicant posting a photo in seemingly normal circumstances does not bear significantly on her recount of events the night before, especially in a context where she had informed JS of the matters constituting count 2 early on that morning.


52. Eighthly, the applicant emphasised an omission within C’s initial statement to the Police on 7 September 2020. During the course of evidence in the trial C stated that after the applicant withdrew his fingers from her vagina he had put his hand over her mouth in order to gag her. This information was not present in her statement. In cross-examination C said she had given this detail in the initial statement. The officer in charge, Detective Bizoglou, gave evidence that he was confident the detail was not offered during the initial interview on the basis that he would have included it if it had been. The applicant suggested that this called into question the reliability and credibility of C’s account.


53. Given Detective Bizoglou’s testimony, it can be accepted that there is a real possibility, if not probability, that C did not mention the gagging detail in her initial interview. It was open to the applicant to use this point to seek to undermine C’s testimony, as was done below. But it is commonplace that witnesses may recall or mention some details later which they had not raised before. The significance of the omission depends on all the circumstances. Here, it was not such a momentous point as to mean the jury could not reasonably accept the truthfulness of her account of the charged conduct. As was said in Z (a pseudonym) v R [2022] NSWCCA 8 at [29], “in general, matters of credibility are for the jury to determine and only in an unusual case will it be able to be said that the complainant’s credibility has been so damaged that it was not open to the jury to accept his or her evidence”. The act of gagging did not form any part of a particular count, nor was it a detail which made it more or less likely that either count had occurred. The point did not contradict or undermine any of her prior evidence. Indeed, as a whole, C’s evidence was clear and free of significant inconsistencies or inaccuracies.


54. Taking account of the applicant’s arguments, viewed both individually and cumulatively, and taking account of my own review of all the evidence, there is no basis on which to find the jury’s verdict was unreasonable. It was well open for the jury to be satisfied beyond reasonable doubt that the applicant was guilty.


55. Ground 1 is not made out.


Ground 2: the jury directions


56. The second ground of appeal raised by the applicant is that a miscarriage of justice occurred by her Honour’s directions to the jury in purported accordance with the CPA. Amendments to the CPA which came into effect on 1 June 2022 require certain additional directions to be given in sexual assault trials, pursuant to ss 292-292E of that Act. The parties and the trial judge proceeded on the understanding that those provisions applied to the trial. The provisions are as follows:


292 Directions in relation to consent


(1) This Subdivision applies to a trial of a person for an offence, or attempt to commit an offence, against the Crimes Act 1900, section 61I, 61J, 61JA, 61KC, 61KD, 61KE or 61KF.


(2) In a trial to which this Subdivision applies, the judge must give any 1 or more of the directions set out in sections 292A–292E (a consent direction)—


(a) if there is a good reason to give the consent direction, or


(b) if requested to give the consent direction by a party to the proceedings, unless there is a good reason not to give the direction.


(3) A judge is not required to use a particular form of words in giving a consent direction.


(4) A judge may, as the judge sees fit—


(a) give a consent direction at any time during a trial, and


(b) give the same consent direction on more than 1 occasion during a trial.


292A Circumstances in which non-consensual sexual activity occurs


Direction—


Non-consensual sexual activity can occur—


(a) in many different circumstances, and


(b) between different kinds of people including—


(i) people who know one another, or


(ii) people who are married to one another, or


(iii) people who are in an established relationship with one another.


292B Responses to non-consensual sexual activity


Direction—


(a) there is no typical or normal response to non-consensual sexual activity, and


(b) people may respond to non-consensual sexual activity in different ways, including by freezing and not saying or doing anything, and


(c) the jury must avoid making assessments based on preconceived ideas about how people respond to non-consensual sexual activity.


292C Lack of physical injury, violence or threats


Direction—


(a) people who do not consent to a sexual activity may not be physically injured or subjected to violence, or threatened with physical injury or violence, and


(b) the absence of injury or violence, or threats of injury or violence, does not necessarily mean that a person is not telling the truth about an alleged sexual offence.


292D Responses to giving evidence


Direction—


(a) trauma may affect people differently, which means that some people may show obvious signs of emotion or distress when giving evidence in court about an alleged sexual offence, but others may not, and


(b) the presence or absence of emotion or distress does not necessarily mean that a person is not telling the truth about an alleged sexual offence.


292E Behaviour and appearance of complainant


Direction—


It should not be assumed that a person consented to a sexual activity because the person—


(a) wore particular clothing or had a particular appearance, or


(b) consumed alcohol or another drug, or


(c) was present in a particular location.


57. The following issues arise:


what directions were given and in what circumstances;


whether ss 292-292E applied to this trial in light of the relevant transitional provisions; and


if not, whether giving the directions led to a miscarriage of justice.


The impugned directions


58. On 5 July 2022, before the jury was empanelled, the Crown sought that two directions be given consistently with ss 292A and 292E. Senior counsel for the applicant accepted that the directions should be given, but preferred that they be given at the end of the trial. The trial judge noted that s 292(4) provided that the directions could be given more than once. The following exchange occurred:


HER HONOUR: So you accept it can be given more than once but after the complainant's evidence and then to apply it to the evidence the jury have heard rather than anticipate it?


BOULTEN: Yes that would be of more assistance to the jury and giving the direction before she gives her evidence is a kind of judicial signalling that this is a matter of some prominence perhaps more prominence than the jury might ultimately determine the issue to be. The issue of consent as it happens is contested but the real contest in this trial is whether the acts complained of occurred at all, your Honour. So in that sense the foreshadowed don't really go to the heart of the issue at the trial, although consent is not accepted, sorry lack of consent is not accepted, the - I would be content and would not argue against your Honour giving these directions when I've finished my cross-examination and/or the prosecutor has finished his re-examination.


59. The trial judge indicated she would give the directions after the complainant’s evidence, but also accepted a suggestion by senior counsel for the applicant that she would indicate that “these are standard directions”.


60. In the trial, immediately after the completion of C’s evidence but in the absence of the jury, the trial judge raised with the parties that the Crown had only requested directions under ss 292A and 292E, and suggested that it might also be appropriate to give a direction in accordance with s 292D (relating to showing obvious signs of emotion or distress when giving evidence). The Crown submitted that a direction consistent with what was contained in the Bench Book would be appropriate. Senior counsel for the applicant expressed concern regarding the use of the word “trauma”, noting that it was not compulsory (thus manifesting his awareness of s 292). He argued that the use of the word would change the focus of the evidence and may create an impression adverse to the applicant. In response, the trial judge suggested that she might modify the direction to begin with the term “some people” in order to give it more generality. Defence counsel agreed that she should do so.


61. Before the next witness was called, the trial judge said the following to the jury:


You have now heard the evidence of the complainant and at the end of the trial I will give you directions both generally and specifically addressing the complainant and her evidence. Some directions in a trial are standard directions given in every trial. Some directions are given in trials involving allegations of sexual assault. Some directions are given during the trial and may be repeated at the end of the trial.


I now will give you directions that are standard directions available in all trials involving sexual assault allegations where an element involves lack of consent. These are not directions that I give because of any opinion I hold of the complainant or her evidence. They are standard directions.


These directions are, non-consensual sexual activity can occur in many different circumstances and between different kinds of people including people who know one another. It should not be assumed that a complainant consented to sexual activity because they were present in a particular location. In this case it should not be assumed that the complainant consented to sexual activity because she agreed to sleep in a bed with [JS] and the accused.


Some people may show obvious signs of emotion or distress when giving evidence in Court about an alleged sexual offence but others may not and the presence or absence of emotion or distress does not necessarily mean that a person is not telling the truth about an alleged sexual offence.


62. Her Honour thus gave directions consistent with ss 292A, 292D and 292E(c), in modified form.


63. The trial judge later indicated to the parties that she would incorporate some of the directions into an elements document that she proposed to provide to the jury, as “that’s where I think they will comfortably sit”. On 12 July 2022 the trial judge provided a draft elements document to the parties and asked if they would consider it that night. On 13 July 2022 the trial judge heard submissions in relation to the document, which included directions as to element 3 to the offence in count 1, and element 2 to the offence in count 2, namely that the act had to have been without consent. Points addressing the directions in ss 292A, 292B, 292C and 292E were listed under each of those elements. The exchange on 13 July between counsel was brief. The Crown indicated that the directions should include the words “I direct you” to make it clear that what was being conveyed was a direction to address a preconceived idea. Defence senior counsel had no difficulty with this suggested change, said he did not have any suggested amendments and that he was “content for it to be handed to the jury pretty much in the form it is now”.


64. The trial judge indicated uncertainty with modifying the language of s 292D (by removing reference to “trauma”), and indicated that she might return to the wording of the provision. Defence senior counsel asked the trial judge to keep the direction in the same terms as the jury had already received it. He submitted that the concept of trauma did not arise on the evidence, and that the direction would introduce the idea into the trial. The trial judge did not accept that submission, indicating that the purpose of the direction was simply to direct the jury against identifying a typical response to sexual assault, and that they did not know if there was trauma in this case.


65. In due course the elements document was given to the jury. The third element listed for the first charge and the second element of the second charge was titled “without consent”, and included the following:


Whether you accept the complainant's evidence regarding the issues in dispute in this trial is obviously for you to determine. It is important however that you do not decide the issues in dispute in the trial on the basis of pre-conceived ideas you might hold. I direct you that:


• Non-consensual sexual activity can occur in many different circumstances including between people who know one another.


• It should not be assumed that a person consented to sexual activity because the person had consumed alcohol.


• It should not be assumed that a person consented to sexual activity because the person had consented to sexual activity with some other person.


• It should not be assumed that a person consented to sexual activity because they were present in a particular location. In this case, it should not be assumed that the complainant consented to sexual activity because she agreed to sleep in a bed with [JS] and the accused.


• There is no typical or normal response to non-consensual sexual activity and people may respond to such activity in different ways.


• People who do not consent to sexual activity may not be physically injured or subjected to violence or threatened with physical injury or violence and an absence of injury or violence or threats of injury or violence does not necessarily mean a person is not telling the truth about an alleged sexual offence.


66. In her summing up, the trial judge read those directions out again when going through the elements of each offence. Earlier, under a heading “Assessment of Witnesses”, she said this (picking up the s 292D direction):


When you consider the complainant and assess her presentation you must bear in mind that trauma may affect people differently. Some people may show obvious signs of emotion or distress when giving evidence in Court about an alleged sexual offence, but others may not and the presence or absence of emotion or distress does not necessarily mean that a person is not telling the truth about an alleged sexual offence.


67. Her Honour thus gave directions contemplated by ss 292A, 292B, 292C, 292D and 292E, in somewhat modified form. The applicant submitted that these directions should not have been given.


Did ss 292-292E apply to this trial?


68. Nothing in the transcript suggests that either side, or the trial judge, addressed whether or not these provisions applied to this trial. They all appear to have assumed that they did. The applicant now submits that the provisions did not apply, taking account of the terms of the applicable transitional provision. The Crown accepts that that conclusion is open in light of this Court’s decision in Bektasovski v R [2022] NSWCCA 246, but also suggests that that decision could be distinguishable.


69. The subdivision containing ss 292-292E was introduced by the Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021, which commenced on 1 June 2022. In this matter the trial before the jury began on 6 July 2022, there having been pre-trial argument on the two preceding days (during which these provisions were raised, as referred to above at [58]). The applicant had first been arraigned in the District Court on 18 June 2021.


70. The amending Act inserted the following transitional provision as cl 117 of Sch 2 to the CPA:


An amendment made to this Act by the Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 extends to proceedings for an offence committed, or alleged to have been committed, before the commencement of the amendment but not if the hearing of the proceedings began before the commencement of the amendment.


71. The question is whether the phrase “the hearing of proceedings began” refers to when the applicant was first arraigned (in which case ss 292-292E were not applicable) or when the trial began before the jury (in which case they were).


72. Bektasovski related to an amendment to s 101(2) of the Evidence Act 1995 (NSW). The applicable transitional provision there stated that “[a]n amendment made to this Act by the amending Act does not apply in relation to proceedings the hearing of which began before the commencement of the amendment”. It was not suggested in this case that the wording of that phrase is materially different to the provision at issue here.


73. The conclusion reached in that case was that the provision referred to when the accused was first arraigned, even in circumstances where the indictment had been amended and the accused had been re-arraigned: see at [37]-[52]. That conclusion was based upon a number of factors, apart from the openness of the text. Prior case law indicated that a person is taken to have been put on trial when first arraigned. At least one decision of this Court had accepted, albeit without dispute, that the same transitional phrase should be understood to encompass a pre-trial voir dire: R v Adamcik, 22 November 1996, unreported. Another judgment of this Court was consistent with that view: GG v R (2010) 79 NSWLR 194; [2010] NSWCCA 230. The second reading speech introducing the amendment indicated that the amendment was not intended to impact proceedings which had already commenced in the sense of the accused having been arraigned. However, limited weight was given to that speech given that the transitional phrase has been used nine times in the Evidence Act in relation to amendments, and “[t]here is no reason to preference the current Attorney’s statement to Parliament over any previous statement in circumstances where it is evident that the phrase is intended to be applied in a consistent manner” (at [43]).


74. Of particular significance to the decision was the recent High Court case of Stephens v The Queen (2022) 273 CLR 365; [2022] HCA 31, although that decision was not determinative. As was explained in Bektasovski:


[47] … The issue that arose there was whether a provision which was regarded as retrospectively extending criminal liability, s 80AF of the NSW Crimes Act, applied to a matter where the provision came into operation after the first arraignment, but before a later arraignment (on an amended indictment) before a jury. There was no transitional provision. The majority of the High Court held that the provision did not apply to the case in those circumstances, significantly on the basis that the trial should be taken already to have commenced, where that was taken to have occurred when the accused was first arraigned …


[48] The majority explained that the “temporal operation of legislation is based on reasonable expectations” (at [33]). Their Honours also referred at [44] to s 30(2) of the Interpretation Act 1987 (NSW). That section provides, inter alia, that “the amendment or repeal of an Act … does not affect … the proof of any past act or thing”. Section 30(1)(e) also provides that the amendment or repeal of an Act does not “affect any … legal proceeding … and any such … legal proceeding … may be instituted, continued or enforced” as if the Act had not been amended or repealed. In Stephens, despite the express retrospective operation of the provision in question, the majority still considered that to apply it to extant proceedings would undermine reasonable expectations and potentially create injustice: at [37]-[43].


75. The majority in Stephens accepted at [7] that “the question of when a trial begins may have a different answer for different purposes”. In this case the Crown submitted that there could be said to be less force in concerns about reasonable expectations when the issue is giving directions addressing “possible jury misapprehensions rather than, as in Bektasovski, admissibility of evidence or, as in Stephens, applicability of an offence provision”. There is some force in that submission. Judge J Smith made a similar point in R v Zekry Bishara [2022] NSWDC 291, in which his Honour held (prior to Bektasovski) that ss 292-292E did apply even though the accused in that case had first been arraigned prior to their commencement. He said that the “question of directions to be given to a jury do not effect a change to the substantive law such as to change the nature of a particular offence and so do not affect any rights or freedoms” (at [17]).


76. Despite the force of that point, in my view the transitional phrase here should be understood to have the same meaning as that accepted in Bekstasovski such that the hearing is relevantly taken to have commenced when the accused was first arraigned.


77. The words used by the Parliament in the transitional provision here are not materially different to the provisions considered in Bektasovski, and earlier in Adamcik and GG. Whilst each such usage must be considered in its own context, it is also reasonable to assume that Parliament intended its words to carry the same meaning when regularly adopting that phrase to achieve the same type of delineation in transitional provisions: note Director of Public Prosecutions Reference No 1 of 2019 (2021) 274 CLR 177; [2021] HCA 26 at [10] and [51]. Had the Parliament intended the provisions to take effect only from the beginning of the trial proper it could readily have used more specific language.


78. Certainty is of value in the law. Here, certainty and simplicity are promoted if the relevant phrase is understood to carry a consistent meaning. Parliament’s choice of language can be understood in that context.


79. Although the reasonable expectations of members of the community may not be so significant as regards what directions are given to juries to correct misconceptions, there is still a benefit in knowing prior to a trial what directions can and will be given. In particular, there may be argument prior to the trial commencing about whether such directions should be given and, if so, in what terms. That occurred in this case. The ability to have such pretrial determinations, and the utility of such decisions, would be undermined if the applicable law was liable to change when the trial proper commenced.


80. It is understandable that even able lawyers might conclude that a reference to when “the hearing of the proceedings began” meant when the trial began. For that reason it would be desirable for the Parliament to employ a different, clearer phrase to specify when such provisions take effect. However, in the context outlined, the phrase should be construed consistently with previous decisions.


81. The parties and the trial judge thus erred, albeit for understandable reasons, in assuming that ss 292-292E applied to the trial of the applicant.


Did a miscarriage of justice occur by reason of the directions being given?


82. The applicant submitted that the giving of the impugned directions where not required or authorised by statute constituted a miscarriage of justice within the third limb of s 6(1) of the Criminal Appeal Act 1912 (NSW).


83. A point of significance here is that leaving aside the concern expressed about use of the word “trauma”, senior counsel appearing for the applicant at trial did not object to the impugned directions being given. That was so even though the trial judge provided the draft elements document to the parties in advance and sought comments on the document’s contents.


84. Leave is required in order to argue that directions which were not objected to occasioned a miscarriage of justice: Supreme Court (Criminal Appeal) Rules, r 4.15. The requirements of the rule do “not constitute some mere technicality which may simply be brushed aside”: R v Germakian (2007) 70 NSWLR 467; [2007] NSWCCA 373 at [10]. The absence of objection to directions can be taken into account as an indication that there was no injustice to the accused in the atmosphere of the trial: ARS v R [2011] NSWCCA 266 at [148], and cases there cited; Beattie v R [2021] NSWCCA 291 at [23]; GBF v The Queen (2020) 271 CLR 537; [2020] HCA 40 at [25]. The discretion to grant leave will be exercised in the applicant’s favour where there has been a miscarriage of justice such that they have lost a real chance of acquittal: ARS v R at [147]-[148]; Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [24].


85. Central to the notion of miscarriage of justice is that there has been a departure from the requirements of a fair trial according to law, being a departure which had the capacity to have caused prejudice or practical injustice to the accused: see the authority gathered in Roberts v R [2023] NSWCCA 187 at [60].


86. he applicant submitted that the impugned directions occasioned a miscarriage of justice because: statutory authority was needed for such directions and the provisions did not apply; the circumstances of the case did not require them, especially given the presence or absence of consent was not in focus; and the directions were given repeatedly and tended to bolster the credit of the complainant and undermine the credit and good character of the applicant, including because they were included as part of the directions given on consent.


87. Whether or not statutory authority was required for the giving of such directions does not directly address whether or not any prejudice was caused. Nor does the fact of whether the directions were unnecessary in the context of the trial. That there should be such prejudice is counter-intuitive given the nature and purpose of the directions provided for in ss 292A-292E. The purpose of the directions can be gleaned from the second reading speech given by Attorney-General Mark Speakman SC (Hansard, Legislative Assembly, 20 October 2021, 7513-7514):


the bill will introduce five new jury directions about consent, for judges to give at trial to provide appropriate guidance to the jury. The purpose of these directions is to address common misconceptions about consent and to ensure a complainant’s evidence is assessed fairly and impartially by the tribunal of fact. …


In a trial that concerns a non-consensual sexual offence, the judge must give any one or more of these directions if there is good reason to do so, or if requested by a party to the proceedings unless there is good reason not to do so. The bill makes clear that a judge may give a consent direction at any time during a trial and may give the same consent direction on more than one occasion during the trial. The directions were strongly supported by stakeholders.


88. Enactment of the provisions gave effect to recommendations made by the NSW Law Reform Commission in its report number 148, published in 2020, entitled “Consent in Relation to Sexual Offences”. The purpose of the new directions was to correct possible misconceptions or assumptions that jurors may hold about consensual and non-consensual sexual activity and deter jurors from falling back on these misconceptions when making decisions in a trial. Given that purpose, it would be surprising if the giving of such directions would be considered to be productive of injustice simply because they were given in a case where there was no legal requirement to do so. Of course, what the Law Reform Commission concluded and what the Attorney said cannot determine whether or not there was a miscarriage in the trial here, but it does serve to put the issue in context.


89. The argument that the impugned directions caused a miscarriage of justice in the circumstances of this case is unpersuasive. It is not the case that the directions simply had nothing to do with what was in issue in the trial. Although lack of consent was not the central issue in dispute, it had also not been conceded (see above at [58]). Focusing on the written elements document, which was also read out to the jury, the relevant passage under each count commenced with a statement that “[w]hether you accept the complainant’s evidence regarding the issues in dispute in this trial is obviously for you to determine”, followed by a general warning that it “is important however that you do not decide the issues in dispute in the trial on the basis of pre-conceived ideas you might hold”. The dot points that followed were elucidations of that direction, and those statements undermine the applicant’s argument that the effect of the directions was to accredit C. Further, all of the directions in the dot points are expressed in generic terms, save that the second sentence in the fourth point is specific to the case. Leaving that sentence aside – which itself is unobjectionable (see below) – it is evident from the points that they are standard directions directed to avoiding “pre-conceived ideas”. Whether taken individually or together, they do not read as bolstering the credibility of this particular complainant. Nor do they read as directed in any way to the character or credibility of the applicant. It was not unreasonable to include them when addressing the topic of consent.


90. In the directions that followed, the first dot point was that “[n]on-consensual sexual activity can occur in many different circumstances including between people who know one another”. That direction was relevant in this case given that the applicant and C were friends, and evidence had been led by the applicant that they had kissed in an intimate way previous to this occasion.


91. The second point was that it “should not be assumed that a person consented to sexual activity because the person had consumed alcohol”. That point was apposite as C had been drinking.


92. The third point was that it “should not be assumed that a person consented to sexual activity because the person had consented to sexual activity with some other person”. The point was pertinent given that C had been sexually intimate with CS at the party prior to the charged events.


93. The fourth point was:


It should not be assumed that a person consented to sexual activity because they were present in a particular location. In this case, it should not be assumed that the complainant consented to sexual activity because she agreed to sleep in a bed with [JS] and the accused.


94. The second sentence illustrates the relevance of the first, and was a reasonable direction to give here.


95. The fifth point was that “[t]here is no typical or normal response to non-consensual sexual activity and people may respond to such activity in different ways”. The relevance of this direction is illustrated by the points made above with respect to the submissions made in this Court about the applicant going into the master bedroom after the events charged in count 1 and about posting an Instagram photo the next morning.


96. The sixth point was that “[p]eople who do not consent to sexual activity may not be physically injured or subjected to violence or threatened with physical injury or violence and an absence of injury or violence or threats of injury or violence does not necessarily mean a person is not telling the truth about an alleged sexual offence”. It can be accepted that there was no suggestion of any force being used other than that required to successfully penetrate C’s vagina repeatedly with his finger in respect of the second charged event. Yet jurors might still have laboured under a misconception about rape necessarily involving violence. And even if it was thought that the direction had little connection to the facts of this case, that does not mean it caused any prejudice, bearing in mind that it was evident that these were standard directions to address possible pre-conceived ideas.


97. That leaves the oral direction that “trauma may affect people differently”, and that “[s]ome people may show obvious signs of emotion or distress when giving evidence in Court about an alleged sexual offence, but others may not” (quoted above in full at [66], and see also [60]). The trial judge was correct to say in the course of argument that it was not known to what extent, if any, C had suffered trauma as a result of the charged events. The direction did not necessarily assume that C had suffered trauma. In any case, it was reasonable to give a direction about the limited relevance, one way or the other, of the presence or absence of obvious signs of emotion or distress.


98. The appellant also made several references to the fact that the directions were given multiple times. The argument is overstated. Some directions were given immediately after C gave evidence, accompanied by an explanation that they were “standard directions” in a context where “[s]ome directions are given during the trial and may be repeated at the end of the trial”. The longer version of the directions was set out in the written elements document twice because it was stated for each offence. It was evident from the document that the points were simply being repeated. It was also evident that the trial judge was reading out that document in her summing up. Her Honour commenced that part of her directions by stating that “although you are receiving this document in writing it is still incumbent that I give you these directions orally. So it will be a read along”. By no means were the impugned directions a dominating theme of the trial judge’s summing up.


99. In context, it is difficult to see how these directions caused any material prejudice to the applicant receiving a fair trial. Moreover, it is significant that senior counsel for the applicant raised no objection to the directions being given, save as to the “trauma” issue. The Crown did not rely on r 4.15 as regards the common mistaken assumption. But it did invoke the rule with respect to the absence of objection where, even on the mistaken assumption that ss 292-292E applied, it was open to object to such directions given the terms of s 292. The fact that senior counsel for the applicant did so in relation to the “trauma” point is indicative that he was alive to this possibility.


100. There was no hint of any suggestion of incompetence of counsel appearing below. That is unsurprising. Button J has referred to the eminence of the senior counsel involved at [182] below. The substantial absence of objection by senior counsel to the impugned directions strongly suggests that in the atmosphere of this trial the directions caused no injustice to the accused.


101. Given that some limited objection was taken, and taking account of all the circumstances, it is appropriate to grant leave to appeal on this ground. However, it has not been established that the applicant lost a real chance of an acquittal or suffered any miscarriage of justice and the ground should be rejected.


Orders


102. For the reasons given above, and those given by Button J with respect to ground 3, the orders of the Court should be as follows:


Grant leave to appeal.


Appeal dismissed.


103. BUTTON J: I have had the benefit of reading the judgment of Kirk JA. As for Ground 2, I agree with his Honour, and have nothing to add. As for Ground 1, on my own assessment of the evidence, I agree that this ground should be rejected.


Ground 3: A miscarriage of justice was occasioned by her Honour’s directions to the jury that the Crown will have proved the accused knew the complainant did not consent to sexual intercourse if: … (c) the accused was reckless as to whether the complainant consented because he did not even think about whether she consented but went ahead not caring or considering it was irrelevant whether she consented.


Introduction


104. This ground had two aspects to it. The first was limited to the asserted wrongfulness of the directions given to the jury about what the applicant termed “inadvertent recklessness”. The second was more expansive, and submitted that statutory reform regarding a mental element for sexual offences had implicitly abolished inadvertent recklessness as an inculpatory state of mind on the part of an accused in New South Wales.


105. As at 6 September 2020, the date of the offences, the offence-creating provisions of the two counts on the indictment were as follow (unless otherwise noted, all italics in extracts are emphasis added by me, and all bolding is in the original):


61KC Sexual touching


Any person (the alleged offender) who without the consent of another person (the alleged victim) and knowing that the alleged victim does not consent intentionally—


(a) sexually touches the alleged victim, or


……


is guilty of an offence.


Maximum penalty—Imprisonment for 5 years.


61I Sexual assault


Any person who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 14 years.


106. On the same date, the section of the Crimes Act 1900 (NSW), then s 61HE, that dealt with consent and knowledge of lack of consent, was as follows:


61HE Consent in relation to sexual offences


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


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


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


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


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


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


(4) For the purpose of making any such finding, the trier of fact must have regard to all the circumstances of the case—


(a) including any steps taken by the person to ascertain whether the alleged victim consents to the sexual activity, but


(b) not including any self-induced intoxication of the person.


(5) Negation of consent A person does not consent to a sexual activity—


(a) if the person does not have the capacity to consent to the sexual activity, including because of age or cognitive incapacity, or


(b) if the person does not have the opportunity to consent to the sexual activity because the person is unconscious or asleep, or


(c) if the person consents to the sexual activity because of threats of force or terror (whether the threats are against, or the terror is instilled in, that person or any other person), or


(d) if the person consents to the sexual activity because the person is unlawfully detained.


(6) A person who consents to a sexual activity with or from another person under any of the following mistaken beliefs does not consent to the sexual activity—


(a) a mistaken belief as to the identity of the other person,


(b) a mistaken belief that the other person is married to the person,


(c) a mistaken belief that the sexual activity is for health or hygienic purposes,


(d) any other mistaken belief about the nature of the activity induced by fraudulent means.


(7) For the purposes of subsection (3), the other person knows that the person does not consent to the sexual activity if the other person knows the person consents to the sexual activity under such a mistaken belief.


(8) The grounds on which it may be established that a person does not consent to a sexual activity include—


(a) if the person consents to the sexual activity while substantially intoxicated by alcohol or any drug, or


(b) if the person consents to the sexual activity because of intimidatory or coercive conduct, or other threat, that does not involve a threat of force, or


(c) if the person consents to the sexual activity because of the abuse of a position of authority or trust.


(9) A person who does not offer actual physical resistance to a sexual activity is not, by reason only of that fact, to be regarded as consenting to the sexual activity.


(10) This section does not limit the grounds on which it may be established that a person does not consent to a sexual activity.


(11) In this section—


sexual activity means sexual intercourse, sexual touching or a sexual act.


Directions given at trial


107. It is convenient now to set out chronologically what was said by the learned trial judge to the jury, both orally and in writing, about the topic of the ground, and what the response was of both advocates at various stages.


108. On 12 July 2022, the seventh day of the trial, her Honour handed down to the Bar table a draft elements document, which became MFI #9. At that stage, Element 4 of the first count and Element 3 of the second count, which both related to the applicant’s knowledge of lack of consent, and which were extremely similar if not identical, were relevantly as follows:


Element 4: Accused's knowledge


• This element concerns the accused's state of mind. The Crown must prove the accused knew the complainant did not consent to the sexual touching.


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


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


• Any intoxication of the accused that was self-induced must be ignored. If you consider that he was intoxicated by voluntarily drinking alcohol you must ignore that and decide this element by considering what his state of mind would have been if he had not been intoxicated.


• The Crown will have proved the accused knew the complainant did not consent to sexual touching if:


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


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


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


• The Crown has no direct evidence of what was in the accused's mind. The Crown asks you to infer or conclude that the accused 'knew' that the complainant was not consenting and relies upon the circumstances including what the complainant said and did on that occasion.


………..



Element 3: Accused's knowledge of lack of consent


• This element concerns the accused's state of mind. The Crown must prove the accused knew the complainant did not consent to the sexual intercourse.


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


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


• Any intoxication of the accused that was self-induced must be ignored. If you consider that he was intoxicated by voluntarily drinking alcohol you must ignore that and decide this element by considering what his state of mind would have been if he had not been intoxicated.


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


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


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


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


• The Crown has no direct evidence of what was in the accused's mind. The Crown asks you to infer or conclude that the accused 'knew' that the complainant was not consenting and relies upon the circumstances including what the complainant said and did on that occasion.


…..


(It had been made clear that the prosecutor was not relying upon s 61HE(3)(c), “no reasonable grounds for believing”, and accordingly the trial judge did not propose to direct the jury about it.)


109. On the following day, the prosecutor raised a single concern regarding a different part of the draft document. Consequently, the document was amended very slightly to include the words “I direct you” before the list of preconceived ideas the jury might have in relation to consent or lack thereof on the part of the complainant (not extracted by me here). Her Honour indicated that the same change would be made to the oral directions. No changes were suggested by the prosecutor about Elements 4 or 3 concerning the applicant’s knowledge of lack of consent.


110. Senior counsel for the applicant at trial had no suggested amendments to the draft elements document:


BOULTEN: That’s fine, I don’t have any suggested amendments to your elements document. I’m content for it to be handed to the jury pretty much in the form it is now and I’m happy to go along with that amendment. If my friend’s got anything else I’d like to hear it, though.


111. The wording used to explain the necessary mental element of the accused about alleged lack of consent of the complainant (hereafter simply “the mental element”) in the draft document therefore remained as follows regarding the first count (and relevantly identical for the second count):


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


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


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


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


112. At some stage before the summing-up, both senior counsel for the applicant and the prosecutor received a copy of the final written directions, which was relevantly identical to the extract from the draft above, prior to their provision to the jury (this seems to have occurred during a part of the proceedings that was not transcribed, or perhaps informally by email out of court, but can be inferred from a subsequent portion of the transcript)


113. The document was thereafter provided to the jury during the course of the summing-up, and became MFI #15.


114. No objections were made by either party to the contents of those written directions at any of those times. Nor were any objections made regarding the contemporaneous oral directions given by her Honour.


115. In relation to the mental element for the first count (sexual touching without consent), her Honour orally directed the jury as follows:


Element 4 is the accused's knowledge. This element concerns the accused's state of mind. The Crown must prove the accused knew the complainant did not consent to the sexual touching. This is a question about what the accused's state of mind actually was. It is not a question about what you or anyone else would have known, thought or believed in the circumstances. It is what he knew, thought or believed. You must consider all of the circumstances including any steps taken by the accused to make sure the complainant consented to the sexual touching. Any intoxication of the accused that was self induced must be ignored. If you consider that he was intoxicated by voluntarily drinking alcohol you must ignore that and decide this element by considering what his state of mind would have been if he had not been intoxicated. The Crown will have proved the accused knew the complainant did not consent to sexual touching if: (a) the accused knew the complainant did not consent; or (b) the accused was reckless as to whether the complainant consented because he realised there was a possibility she did not consent; or (c) the accused was reckless as to whether the complainant consented because he did not even think about whether she consented but went ahead not caring or considering it was irrelevant whether she consented.


116. Virtually identically, in relation to count 2 (sexual intercourse without consent), her Honour orally directed the jury about the mental element as follows:


The Crown will have proved the accused knew the complainant did not consent to sexual intercourse if: (a) the accused knew the complainant did not consent; or (b) the accused was reckless as to whether the complainant consented because he realised there was a possibility she did not consent; or (c) the accused was reckless as to whether the complainant consented because he did not even think about whether she consented but went ahead not caring or considering it was irrelevant whether she consented.


117. No application for any redirection about the mental element was made by either party at the conclusion of the summing-up.


Submissions for the applicant


118. In submissions, the applicant used a nomenclature slightly different from the one that I adopt in my determination, as follows. His submissions referred to the state of mind described in dot point 5(b) in the written directions extracted above at [108] as “advertent recklessness” or sometimes “advertent disregard”. I shall use the former phrase in summarising the submissions for the applicant. The submissions also referred to the general concept underlying (c) in the same extract above (appreciating that the submission was that it was erroneously expressed) as “inadvertent recklessness”.


Misdirection about inadvertent recklessness?


119. It was submitted in writing that her Honour’s choice of words to explain inadvertent recklessness were identical to those used in both the Crown’s closing submissions, and the suggested directions given in the NSW Criminal Trials Bench Book regarding sexual offences alleged to have occurred between 1 January 2008 and 1 June 2022.


120. The submissions focused upon the following propositions. The trial judge directed the jury regarding the applicant’s knowledge of lack of consent as follows. The applicant was liable to be found guilty if any one of three alternatives was accepted as proven beyond reasonable doubt:


1. The applicant had actual knowledge of the complainant’s lack of consent; OR


2. he applicant was advertently reckless as to whether the complainant consented; OR


3. The applicant “was reckless as to whether the complainant consented because he did not even think about whether she consented but went ahead not caring, or considering it was irrelevant whether she consented”.


121. Counsel for the applicant submitted that the direction at (c) was intended to convey the concept of inadvertent recklessness.


122. However, the wording used in her Honour’s explanations of the criminal law to the jury, both orally and in writing, directed the jury that the applicant could be found guilty by way of proof of two separate concepts under the rubric of inadvertent recklessness:


The applicant did not even think about whether the complainant consented, described by the applicant as inadvertent recklessness; AND


The applicant went ahead not caring or considering it was irrelevant whether the complainant consented, described by the applicant as advertent recklessness.


123. It was accepted that the first part of the above reflected the concept of inadvertent recklessness. But it was submitted that the idea of “not caring or considering it was irrelevant whether [the complainant] consented” was fundamentally the same concept as advertent recklessness.


124. Written submissions for the applicant noted that the following formulations of recklessness had been approved by the High Court in Banditt v The Queen (2005) 224 CLR 262; [2005] HCA 80 at [16] (per Gummow, Hayne and Heydon JJ):


…the term "reckless" may encompass various formulations, including "indifference as to whether or not there is consent", "determination to have intercourse with the person whether or not that person is consenting", and "awareness of the possibility of absence of consent and proceeding anyway".


125. The majority in Banditt v The Queen also quoted with approval the statement of Professor JC Smith (at [35]):


If D is aware that there is any possibility that P is not consenting and proceeds to have intercourse, he does so recklessly. Lord Hailsham in [R v Morgan [1975] UKHL 3; [1976] AC 182 at 215] required an 'intention of having intercourse, willy-nilly, not caring whether the victim consents or [no]'. Another way of putting it is to ask, 'Was D's attitude one of "I could not care less whether she is consenting or not, I am going to have intercourse with her regardless."' What, however, of the man who knows that the woman may not be consenting but hopes, desperately, that she is? He could care much less; but is he not reckless?


126. It was submitted that each of these formulations – "awareness of the possibility of absence of consent and proceeding anyway", “willy-nilly”, “not caring” – all describe a state of advertent recklessness. Advertence to the possibility of non-consent but nevertheless proceeding with intercourse is the same as proceeding “willy-nilly”; both states of mind, it was said, are advertent.


127. Furthermore, such formulations do not amount to inadvertent recklessness. To say that one person does not care if a second person is consenting or not, or that the first person is indifferent to consent, is not the same as saying that the first person did not even think about consent.


128. The concept of inadvertent recklessness was not directly considered in Banditt v The Queen, but had previously been approved by this Court in R v Tolmie (1995) 37 NSWLR 660 (per Kirby P at 672D; Newman J and Barr AJ agreeing):


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


129. Even so, the direction given by the trial judge here, it was argued, was not in accordance with what was under discussion in R v Tolmie. That is because a person proceeding with sexual intercourse “not caring or considering it was irrelevant whether the complainant was consenting” possesses, in truth, a different state of mind from a person who does not even consider the question of consent at all. And the erroneous direction ultimately had the effect of diluting the burden of proof for the jury, as they were presented with an additional pathway to guilt, which was in truth a mere restatement of something about which they had already been told: advertent recklessness.


130. Oral submissions for the applicant about the asserted misdirection focused largely on highlighting perceived issues in the Criminal Trial Bench Book, in order to explain the seeming source of the assertedly erroneous direction given at trial.


131. The wording in the Bench Book, it was submitted, confused the two forms of recklessness, advertent and inadvertent:


GAME: … if you look inside the bench book on p 23 of our submissions where it says “did not think about whether she consented but went ahead not caring or considering it was irrelevant”, they are two different concepts inside the same sentence and that’s a mix-up in the bench book post Haine [scil. Hayne v R [2022] NSWCCA 11]. So what’s happening there is you are being presented with something as an alternative that isn’t actually an alternative, it’s just another way of saying realised there was a possibility she didn’t consent.


132. The impugned direction given by her Honour, it was argued, was directed towards explaining inadvertent recklessness. However, it was not expressed in the terms approved by this Court in R v Tolmie, but rather those of the Bench Book at [5-820]:


The law says the Crown will have proved the accused knew the complainant did not consent to sexual intercourse if: [refer only to those of the following matters that arise from the evidence]


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


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


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


(d) the accused may have actually believed the complainant consented, but [he/she] had no reasonable grounds for that belief; or


(e) the accused knew the complainant consented under a mistaken belief about [refer to those parts of s 61HE(6) that may apply].


133. The trial judge’s directions therefore provided an additional reference to advertent recklessness in the explanation of inadvertent recklessness. In doing so, senior counsel argued, her Honour provided the jury with what appeared to be an alternative form of recklessness in addition to advertent recklessness and inadvertent recklessness.


Implicit abolition of inadvertent recklessness?


134. Separately and more broadly, the applicant raised a second argument about the directions regarding the mental element: that the meaning of “reckless” as contained in s 61HA, and thereafter s 61HE, of the Crimes Act 1900 (as it was at the time of the offending) can no longer be understood to include inadvertent recklessness.


135. It was submitted that the policy bases for extending the meaning of recklessness to include inadvertent recklessness, identified many years ago by this Court, no longer applied, once the inculpatory “objectification” of a mistaken belief in consent was inserted into the Crimes Act 1900 as s 61HA(3) (and subsequently s 61HE(3) by the Crimes Amendment (Consent – Sexual Assault Offences) Act 2007 (NSW)).


136. I interpolate that the relevant original provision under discussion, which commenced in January 2008, was as follows:


61HA Consent in relation to sexual assault offences


………


(3) Knowledge about consent A person who has sexual intercourse with another person without the consent of the other person knows that the other person does not consent to the sexual intercourse if:


(a) the person knows that the other person does not consent to the sexual intercourse, or


(b) the person is reckless as to whether the other person consents to the sexual intercourse, or


(c) the person has no reasonable grounds for believing that the other person consents to the sexual intercourse.


For the purpose of making any such finding, the trier of fact must have regard to all the circumstances of the case:


(d) including any steps taken by the person to ascertain whether the other person consents to the sexual intercourse, but


(e) not including any self-induced intoxication of the person.


137. To repeat for convenience, the subsequent provision (inserted by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW)) relevant to this appeal because in force at the time of the offences, and which commenced in December 2018, was as follows:


61HE Consent in relation to sexual offences


………


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


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


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


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


(4) For the purpose of making any such finding, the trier of fact must have regard to all the circumstances of the case:


(a) including any steps taken by the person to ascertain whether the alleged victim consents to the sexual activity, but


(b) not including any self-induced intoxication of the person.


138. In order to show the developing history of the provision now under discussion, for completeness I record that the currently applying provision, which commenced in June 2022, is as follows:


61HK Knowledge about consent


(1) A person (the accused person) is taken to know that another person does not consent to a sexual activity if—


(a) the accused person actually knows the other person does not consent to the sexual activity, or


(b) the accused person is reckless as to whether the other person consents to the sexual activity, or


(c) any belief that the accused person has, or may have, that the other person consents to the sexual activity is not reasonable in the circumstances.


(2) Without limiting subsection (1)(c), a belief that the other person consents to sexual activity is not reasonable if the accused person did not, within a reasonable time before or at the time of the sexual activity, say or do anything to find out whether the other person consents to the sexual activity.


(3) Subsection (2) does not apply if the accused person shows that—


(a) the accused person had at the time of the sexual activity—


(i) a cognitive impairment within the meaning of section 23A(8) and (9), or


(ii) a mental health impairment, and


(b) the impairment was a substantial cause of the accused person not saying or doing anything.


(4) The onus of establishing a matter referred to in subsection (3) lies with the accused person on the balance of probabilities.


(5) For the purposes of making any finding under this section, the trier of fact—


(a) must consider all the circumstances of the case, including what, if anything, the accused person said or did,


and


(b) must not consider any self-induced intoxication of the accused person.


139. The following points were made in writing in support of this aspect of the ground:


1. Section 61HA(3)(c) provided a new pathway whereby the Crown could prove the guilt of the accused on the basis of an objective test: an accused became liable to be found guilty where they had no reasonable grounds for believing that a complainant was consenting. The Crown was thus able to allege that an accused person had no reasonable grounds to believe a complainant was consenting where, on the Crown case, the accused never turned their mind to the issue of consent.


2. As such, it was argued that all of the circumstances previously captured by inadvertent recklessness were now encompassed in s 61HA(3)(c) (and later s 61HE(3)(c)). That is because there could be no set of circumstances in which a jury would not be satisfied that the accused had no reasonable grounds for a belief in consent (leading to a verdict of not guilty on that basis), but would be satisfied that the accused never turned their mind to the issue of consent (where the risk that the complainant was not consenting would have been obvious to them had they turned their mind to it) (leading to a verdict of guilty on that basis).


140. Separately, the applicant argued that, in the absence of clearly differentiating words in the statute itself, to include inadvertent recklessness within the interpretation of the statutory term “recklessness” in the context of sexual offences effectively removes the common law presumption of the requirement of mens rea (“a guilty mind”):


1. It was submitted that the majority opinion of this Court in Castle v R (2016) 92 NSWLR 17; [2016] NSWCCA 148 should be adapted and applied; recklessness cannot be proven on the basis that an accused did not turn their mind to the question of consent where lack thereof would have been obvious to a person of that mental capacity had they considered it (see [39] per Bathurst CJ, Hall J agreeing, R A Hulme dissenting). Though Castle v R concerned the offence of kidnapping, and was not explicitly considering the correctness of the continuation of the doctrine of inadvertent recklessness in the context of sexual offences, it was nevertheless argued that the reasons for reticence in the majority judgments in the context of kidnapping apply equally to the interpretation of recklessness in s 61HE(3)(b).


2. Recklessness in s 61HE(3)(b) in truth requires a positive or advertent mental state. That is consistent with how this Court has defined the meaning of recklessness in the context of recklessly causing grievous bodily harm or wounding (see Blackwell v R (2011) 81 NSWLR 119; [2011] NSWCCA 93 per Beazley JA at [76]), and fraud offences (see Pollard v Commonwealth Director of Public Prosecutions (1992) 28 NSWLR 659 per Abadee J at 668, citing R v Staines (1974) 60 Cr App R 160 at 162). The word recklessness appears over thirty times in the Crimes Act. For it to have vastly different meanings - depending on the particular offence to which the term relates - would be to create uncertainty and confusion about the circumstances in which a crime might be committed. And that is especially so when juries are asked to consider offences that encapsulate more than one meaning of recklessness. For example, if an accused person is charged with an offence contrary to s 61J(1) of the Crimes Act where the circumstance of aggravation is alleged to be the reckless infliction of grievous bodily harm, the jury would be directed to consider recklessness differently in relation to that circumstance of aggravation and the alleged knowledge of lack of consent. There is nothing to suggest that Parliament objectively intended such a sharp distinction to be drawn in the one statute, let alone the one offence-creating provision.


141. As for this broader attack on the whole concept of inadvertent recklessness, during oral submissions, senior counsel for the applicant argued that the “objective” test introduced in R v Tolmie had been superseded by legislative amendments to the Crimes Act 1900:


GAME: … So when the 2007 amendments came along, they referred in effect to the no reasonable grounds to be as it were an additional thing but we say that that doesn’t really work when one sees what happened when the provisions were introduced in the first place but the no reasonable grounds provision that was introduced meant that if you didn’t consider the thing at all, you didn’t have any reasonable grounds because it was in two parts. So the not thinking about it thing, we say couldn’t survive that because there it was.


142. It was emphasised orally that this Court certainly has been troubled in the past about a concept of recklessness based upon the accused failing to turn their mind to the crucial state of affairs: see the reasoning of Bathurst CJ regarding reckless kidnapping in Castle v R at [39].


143. The introduction of s 61HA(3)(c) and its descendants applies to the very same situation as inadvertent recklessness: an accused having “no reasonable grounds” includes that person never having turned their mind to whether or not a complainant was consenting.


144. When asked by the Bench whether complete non-advertence might be viewed as a concept distinct from having no reasonable grounds for a state of mind in the form of a belief, senior counsel said the following:


GAME: Don’t have to have any state of mind to have no reasonable grounds and that’s made clear in a decision of Justice Basten that we’ve cited there. So you don’t need to break it up but if you don’t have grounds you don’t have reasonable grounds but I’ll come back.


145. It was subsequently clarified that that submission was based upon the judgment of Basten JA (with whom N Adams J and I agreed) in Greenhalgh v R [2017] NSWCCA 94 at [26].


Determination


146. In my opinion, it is convenient first to deal with the more expansive part of the ground, which asserts that, in truth, inadvertent recklessness is no longer part of the criminal law of New South Wales. That is because, if that ground succeeds, whether or not there has been a misdirection about that doctrine becomes a mere detail and need not be determined, because the appeal would need to be upheld, and (subject to the success of ground one), a new trial would need to be ordered.


147. It is also necessary to set out the terminology that I adopt with regard to the different mental elements that may be sufficient to constitute a sexual offence. I shall do so by reference to the subparagraphs of s 61HE(3), which appears at [137] of this judgment.


148. The first mental element is actual knowledge of lack of consent. It appears at (a) and is not controversial. I shall simply refer to it as “knowledge”, or “the first category”.


149. The second is recklessness, in the sense of foresight of a (non-trivial) possibility of lack of consent. This state of mind is the first meaning of recklessness within (b). It accords with the completely orthodox meaning of recklessness discussed in such cases as R v Coleman (1990) 19 NSWLR 467, Blackwell v R, and Castle v R. It is also not controversial. Submissions for the applicant usually referred to it as “advertent recklessness” – or “advertent disregard” orally – but I respectfully prefer the shorthand “foresight of possibility”, or “the second category”.


150. The third mental element is recklessness, in the separate sense of not even turning one’s mind to the question of whether the person with whom one was having sexual contact was consenting. This state of mind was first spoken of by this Court in R v Henning (CCA NSW, 11 May 1990, unreported). Thereafter, this Court confirmed that it is a state of mind (or rather, in a sense a lack thereof) whereby a sexual offence can be proven, in the decisions of R v Hemsley (1988) 36 A Crim R 334, R v Kitchener (1993) 29 NSWLR 696, and R v Tolmie. It is the second meaning of recklessness within (b), and it is the focus of both aspects of the ground. As I have shown, submissions for the applicant referred to it as “inadvertent recklessness”, but I prefer the terms “non-advertent recklessness” or “the third category”.


151. The fourth mental element is construed indirectly from (c), and its statutory ancestor and descendant. It is an objective inculpation of the state of mind that, before 2008, was exculpatory, as follows (I shall leave aside questions of onus in this discussion, in the interests of simplicity only).


152. Prior to the amendment that commenced in that year, an accused person who believed – no matter how unreasonably – that the complainant was consenting, and who therefore: did not know that the complainant was not consenting (the first category); did not foresee the possibility that the complainant was not consenting (the second category); and did not fail completely to turn their mind to the question (the third category), was to be found not guilty. That was on the simple basis that none of the then-variants of the mental element for the offence could be established by the Crown.


153. After that time, a belief sincerely held that was unreasonable (speaking generally, and appreciating that, as the extracts provided by me show, the statute has expressed this objective limitation on exculpation differently at different times) led to a verdict of guilty, not a verdict of acquittal. I shall refer to this state of mind as “unreasonable belief in consent” or “the fourth category”.


154. Turning then to resolve the more expansive part of the ground, I do not believe that the enactment of the fourth category has led implicitly to the abolition of the third category. I say that for the following reasons.


155. First, in my respectful opinion, they are speaking of different things. The third category is speaking of a state of complete non-advertence. The fourth category is speaking of a state of active advertence; namely, belief in consent. I do not accept that the inculpation of an unreasonable belief in consent by way of the fourth category has any effect on inculpation by way of complete non-advertence to consent or lack thereof by way of the third category. I think that they are fundamentally different subjects: one is an actively held belief in the presence of consent, and the other is no state of mind at all about its presence or absence.


156. Relatedly, I do not consider that any statutory iteration of the fourth category has been speaking of a theoretical state of mind, whereby the fourth category can be hypothetically applied to the third category. I consider that, at all times, the objective intention of Parliament was (seeking to express matters of onus in this context) to inculpate an accused who reasonably possibly believed that the complainant was consenting, but did so unreasonably, to the satisfaction of the jury about the latter characterisation beyond reasonable doubt.


157. In that regard, as I have shown, the statutory formulations of 2008 and 2018 express themselves by speaking of a person having “no reasonable grounds for believing” in the presence of consent. But I do not interpret that phrase as “freestanding”, whereby it could somehow inform the third category as a general proposition, as opposed to an assessment of the reasonable possibility of a particular belief being held by a particular accused in a particular trial. And if there is any ambiguity about that, the following portion of the second reading speech of 7 November 2007 delivered in support of the Crimes Amendment (Consent-Sexual Assault Offences) Bill 2007 makes that quite clear:


The present common law test is subjective, requiring the Crown to prove that the accused knew the complainant was not consenting, or was reckless as to whether the complainant was consenting, solely from the point of view of the accused. The accuser's assertion that he or she had a belief that the other person had consented is difficult to refute, no matter how unreasonable in the circumstances. The law does not adequately protect victims of sexual assault when the offender has genuine but distorted views about appropriate sexual conduct. The subjective test is outdated. It reflects archaic views about sexual activity. It fails to ensure a reasonable standard of care is taken to ascertain a person is consenting before embarking on potentially damaging behaviour. An objective test is required to ensure the jury applies its common sense regarding current community standards.


Some might think that it is wrong to remove the subjective belief of the offender and criminalise a person who sincerely but unreasonably believes that another is consenting to sex. However, in New South Wales the law has already recognised that an accused person possesses the requisite intent to have non-consensual intercourse, or guilty mind, when they have failed to turn their mind to the issue at all. This has been most eloquently justified by the New South Wales Court of Criminal Appeal when it was stated that:


The criminal law, in its important function of controlling behaviour, should promote standards of acceptable consensual sexual behaviour of the community Lack of the merest advertence to consent in the case of sexual intercourse is so reckless that it is also the criminal law's business. In this, the law does no more than reflect the community's outrage at the suffering inflicted on victims of sexual violence.


Proposed section 61HA (3) retains recklessness, but offers an additional third limb for what is meant by that element of these offences "knows that the other person does not consent". It provides that the person knows that the other person does not consent to the sexual intercourse if the person has no reasonable grounds for believing that the other person consents to the sexual intercourse.


[The quote is in fact from R v Tolmie at 672]


158. Secondly, I do not consider that the judgment of Basten JA in Greenhalgh v R is authority for the proposition that the unreasonableness of an active belief has a doctrinal role to play with regard to the third category, complete non-advertence. My reading of [26] of the judgment of his Honour, to which this Court was taken, does not support that proposition. I read that paragraph as saying that a particular piece of evidence in a sexual assault trial can play many roles within proof of the elements of the offence.


159. A ready example is gross, debilitating intoxication on the part of the complainant. That could play a role as to whether that person was consenting, as that term is defined and informed by the Crimes Act; whether the accused knew that the complainant was not consenting; whether the accused foresaw lack of consent as a possibility; whether the accused had sexual contact with the complainant without turning the mind of the accused at all to the question of consent or lack thereof; and whether any belief in consent that the accused may have possessed was unreasonable (again, using that adjective generically).


160. In other words, I readily accept that there can be an evidential overlap between the four inculpatory versions of the mental element. And, as was said for the applicant, it may well be that reliance by the Crown on the third category or the fourth category will almost always lead to congruent outcomes in terms of verdicts, as a matter of practical reality. But I do not accept that any version of the statute that inculpates an advertent honest belief in consent if it is unreasonable informs a non-advertent state of mind. That is for the simple reason that conceptually they are two entirely different things.


161. Relatedly, when Basten JA said within [26] of that decision that “if the prosecution proves beyond reasonable doubt a lack of reasonable grounds to believe in consent, that will be sufficient for a conviction with respect to the offences of sexual intercourse without consent, without the jury having to form a view as to whether the accused held a belief that [the complainant] consented”, I do not understand that statement as meaning that those aspects of the fourth category elide with the third category. All I understand his Honour to have been saying is that, in a “practical sense”, if the issue of a reasonably possible belief in consent by the accused is before the jury, it can be resolved in favour of the Crown by way of satisfaction beyond reasonable doubt that any such belief was unreasonable, without the necessity to determine the first issue. That is for the simple reason that an inculpatory state of mind has been established by the Crown in any event.


162. In short, I respectfully do not consider that paragraph of that judgment constitutes authority for the proposition that the fourth category and the third category can be “blended” in the way for which the applicant contends.


163. Thirdly, non-advertent recklessness was first spoken of by this Court in 1988, and it was confirmed in the first part of the 1990s. Parliament repeatedly re-enacted the portion of the Crimes Act dealing with sexual offences between then and 2008, when the fourth category of mental element was introduced by statute: see, as one of many examples, the Crimes Amendment (Sexual Offences) Act 2003 (NSW). After 2008, Parliament has continued to amend the provisions to do with sexual offences. That included, as I have shown, by way of a version of the provision to do with consent, lack of consent, and knowledge of lack of consent that commenced in 2018; and a further, separated version that dealt solely with the topic of knowledge of lack of consent that commenced in 2022.


164. Parliament can surely be taken to have been well aware of the expanded reading that this Court has given to the statutory concept of recklessness within sexual offences over a period of 30 years. And yet Parliament has taken no step to limit that reading, whether before or after the introduction of the fourth category of mental element. Just as in the case of Jackmain (a pseudonym) v R (2020) 102 NSWLR 847; [2020] NSWCCA 150 in which the implicit contentment of Parliament with a strict reading by this Court of s 295CB of the Criminal Procedure Act 1986 (NSW) and its predecessors was important to the construction of the meaning of statute, so it is here.


165. Relatedly, the decision of the High Court of Australia in Director of Public Prosecutions Reference No 1 of 2019 (2021) 274 CLR 177; [2021] HCA 26 sheds light on the question, in particular at [10]-[12], [51], and [89]-[95]. In that case, the question was whether the presumption of re-enactment should lead to the judicial maintenance of an understanding of an element of a statutory offence based upon a decision of the Victorian Court of Appeal that had been shown by a subsequent decision of the High Court to be clearly wrong. The majority, constituted by Gageler, Gordon and Steward JJ delivering joint reasons, and Edelman J writing separately, was of the view in that case that it should. Emphasis was placed upon whether the subject matter of the subsequent legislative activity is amongst “specialised and politically sensitive fields” (at [51]); and upon the fact that, ultimately, the application of the presumption “in any case will turn on its own circumstances having regard to the history of the specific statute under consideration”: at [52].


166. Here, as for the latter consideration, the Division of the Crimes Act to do with sexual offending has been amended repeatedly since non-advertent recklessness was confirmed as a doctrine almost three decades ago, and the particular section speaking of consent and knowledge of lack of consent has been amended several times since its introduction in 2008: see Crimes Amendment (Consent-Sexual Assault Offences) Act 2007 (NSW); Crimes Legislation Amendment Act 2014 (NSW); Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW); Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 (NSW).


167. And as for the former consideration, the question of what should constitute, in the context of sexual offending, the meaning of consent and lack thereof on the part of a complainant, and the meaning of knowledge of lack of consent on the part of an accused person, can very readily be characterised as a specialised “sub-field” within the field of criminal law, and, undoubtedly, as a politically sensitive one: see, for example, New South Wales, Law Reform Commission, Consent In Relation to Sexual Offences (September 2020).


168. In my opinion, the presumption of re-enactment has a significant (but of course not determinative) role to play here.


169. In short, quite apart from my opinion that the fourth category of mental element is talking about something quite different from the third category, I consider that it cannot be said that Parliament objectively intended that the commencement of the fourth mental element should abolish the third mental element. Although Parliament has repeatedly revisited sexual offences, it has done nothing implicitly or explicitly to evidence such an intention. The provisions of the Crimes Act relating to an accused’s knowledge of lack of consent have been amended at least four times since 2008, and not once has the wording been altered to rule out non-advertent recklessness as a basis for inculpation. Indeed, the contrary argument could be made: the readiness of Parliament to expand inculpation by way of the statutory creation of the fourth category of mental element many years ago may tend to support its contentedness with the breadth of the third category of mental element.


170. Fourthly, it is true that it is unusual in criminal law for a state of non-advertence to be inculpatory with regard to a serious offence. It is also true that the reading given to recklessness in the context of sexual offences by this Court is broader than that given to the concept as an element in other offences, both within the Crimes Act and elsewhere. It is further true that a majority of this Court reasonably recently declined to extend the concept, despite the gravity of the offence of kidnapping. But for the reasons eloquently provided by Kirby P in R v Tolmie at 672, and R v Kitchener at 697, three decades ago, I consider that the physical and emotional invasiveness of sexual offending, and the psychological damage that it notoriously does to its victims, provide ample grounds for putting it into a special category.


171. For the above reasons, I do not accept that statutory creation of the fourth category has implicitly abolished the third category. Furthermore, I believe that there are sound reasons of policy for retention of the third category. Finally, I am satisfied neither that repeated judgments of this Court confirming the existence of the third category are clearly wrong, nor that there are good reasons for departing from them: see, for a recent discussion, MK v R; RB v R [2023] NSWCCA 180. It follows that I would not uphold the ground of appeal on this broader basis.


172. Turning now to the less expansive part of the ground, I should say at the outset that I do not propose to analyse the contents of the Bench Book. That is because the correctness or otherwise of that guide for judicial officers and practitioners is not the question for this Court. The question is simply whether the written and oral directions actually given by the trial judge in this particular trial constituted a miscarriage of justice.


173. I repeat for convenience that the assertedly erroneous direction was that the Crown would have proven knowledge on the part of the accused of lack of consent on the part of the complainant if:


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


(The comma between “caring” and “or” in the last line appears in the written directions that went to the jury, MFI 15, and I have included it here.)


174. As a starting point, I respectfully think that the syntactical division propounded by the applicant (summarised by me at [122]) is contestable. By that I mean, I think that there may be other ways to “divide up” the concepts being discussed in that sentence. Even so, I am content to resolve this part of the ground by reading the direction in the way that the applicant submits it should be read.


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


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


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


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


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


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


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


182. Separately, in my opinion, this is a situation in which rule 4.15 has an important role to play. As I have shown, senior counsel for the accused at trial was comfortable at all times with the written and oral directions provided to the jury, having been given ample opportunity to reflect on them before they were given, including consideration of a draft written document. It is well known that senior counsel who represented the applicant at first instance is, with respect, one of the most experienced and skilful criminal trial lawyers in the whole State. He was content with the written and oral directions, and one can safely infer that that is because his considered opinion was that they did no harm to his client in terms of expanding inculpation by way of mental elements for either offence.


183. In short, although I accept that the latter part of the objected to direction was at the least extraneous and repetitive and at most may have been something of a melding of the second category and the third category, I do not accept that the giving of that direction constituted a miscarriage of justice.


184. Finally, the divergence between what was said to the jury in this trial and the formulation in R v Tolmie was touched upon briefly in the written submissions, but not emphasised orally. By that I mean, in R v Tolmie at 472D the test for inculpation by way of non-advertence was the accused not having considered the question of consent “and a risk that the complainant was not consenting to sexual intercourse would have been obvious to someone with the accused’s mental capacity if they had turned their mind to it”. In other words, if the latter proposition was not established by the Crown, that would be a path to exculpation, even in a case of established complete non-advertence to consent or lack thereof. But that divergence cannot constitute a miscarriage of justice in this case: there was no evidence that could have engaged that exculpatory consideration, and no doubt that explains the contentment of senior counsel at trial with the concise way in which the third category was expressed in the directions.


Proposed orders with regard to this ground


185. If the small part of the ground stood alone, I would propose that leave should be refused, pursuant to the Rule. It could also be said that the more expansive argument could have been made at first instance but was not, thereby attracting the operation of the Rule as well.


186. Because of the importance of the larger ground, however, and the fact that the smaller ground focused on words that, in my opinion, may be said to be extraneous, and because of the importance of clarification of inculpatory mental elements in sexual offences, I consider that leave to argue this ground should be granted, but this ground of appeal dismissed.


187. LONERGAN J: I have had the benefit of reviewing the judgments of Kirk JA as to grounds 1 and 2 and Button J as to ground 3, in draft. I agree with their respective analyses of grounds 2 and 3 and have nothing to add.


188. In respect of ground 1, I have examined the evidence tendered and led and the record of the trial and I am of the view that the nature and quality of the evidence was more than sufficient to eliminate any reasonable doubt that the applicant was guilty of both of the offences with which he was charged.


189. I agree with the analysis of the evidence conducted by Kirk JA and in particular I endorse his comments at [28] and [29]. I wish to add the following regarding the short video footage of the game of Twister referred to by Kirk JA at [46] and [47] of his Honour’s judgment.


190. Contrary to the submissions of the applicant, the video footage does not show C “enjoying the game.” Although brief, the footage demonstrates exactly what C complained of – that the applicant touched her in a way that made her feel uncomfortable during the game, and that she was forced by him to remain in particular positions that made her uncomfortable. The footage shows an awkward series of physical manoeuvres by C clearly attempting to extricate herself from the tightly gripped, downward facing position exerted upon her by the applicant, followed by C, readjusting her clothing and looking confused and embarrassed, quickly moving a distance away from the applicant and close to another male in the room.


191. The explanation given by her that she tried to “brush past” this uncomfortable situation is not only plausible but is corroborated by the video.


192. I agree with the orders proposed by Kirk JA.



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