Australia, June 11 -- New South Wales Land and Environment Court issued text of the following judgement on May 12:

1. HAMILL J: I have read the judgment of Chen J which was circulated in draft. I agree with the orders his Honour proposes. His Honour's comprehensive judgment relieves me of the need to set out the evidence and arguments. As Chen J observes, the approach to a ground asserting that a jury's verdict of guilty is unreasonable or unable to be supported having regard to the evidence is well settled: see, for example, Morris v The Queen (1987) 163 CLR 454; [1987] HCA 50, M v The Queen (1994) 181 CLR 487; [1994] HCA 63, SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, and Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25.

2. I am satisfied that it was open to the jury - in the sense explained by the High Court in M v The Queen and SKA v The Queen - to be satisfied of the applicant's guilt beyond reasonable doubt. On a review of the whole of the record of the trial, and having watched and listened to the electronic exhibits, I am not left with the "feeling of anxiety and discomfort" of which Sully J spoke in this Court in the case that led to the High Court's intervention in M v The Queen. Quite to the contrary; the case against the applicant was a strong one and established the essential elements of each offence beyond reasonable doubt.

3. In relation to each count, there was no dispute that the sexual act (touching in some counts, intercourse in others) occurred. These were admitted by the applicant in his evidence at the trial and in his "notes" that were sent to the complainant on 18 February 2020 and set out at [86] by Chen J.

4. As to the issue of consent, it was ultimately conceded at the trial that the complainant did not consent. This concession was unsurprising given the powerful evidence of her level of intoxication by both alcohol and prescription medications. This was proved on her own evidence as to what she had consumed and how she felt, the evidence of the pharmacologist, the voice messages left with her sister shortly before the applicant attended (which are graphic and compelling), and (to a far lesser extent) by the CCTV footage of her attendance at the hospital. Her absence of consent was also consistent with the many messages in which she said she was not prepared to engage in sex with the applicant because he was married.

5. The only issue in dispute was whether the applicant knew the complainant was not consenting, or whether he was reckless as to whether she was consenting. To prove that element of the offences beyond reasonable doubt, the prosecution relied on a body of circumstantial evidence, parts of which were more convincing than others but which, taken as a whole, was compelling. The messaging between the parties in the lead up to the events alleged to found the offences, and the complainant's condition at the time of those events, constituted powerful evidence that the applicant was, at least, reckless as to whether the complainant consented.

6. The applicant relied on the sexualised content of some of the messaging between the two. However, this evidence was of little moment in circumstances where the complainant repeatedly rebuffed the applicant's suggestions of engaging in sexual acts with him and deflected or rejected his offers to visit her at her home. This evidence is set out by Chen J. The complainant stated her boundaries with clarity on many occasions in those messages and did not waiver even when she was content, as she was entitled to be, to continue with the "sexual banter". A significant exchange of messages is set out by Chen J at [131].

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/196aceba824eebe76ebba955)

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