Australia, July 28 -- New South Wales Land and Environment Court issued text of the following judgement on June 27:

1. DAVIES J: I have had the considerable advantage of reading in draft the judgment of McNaughton J. From my own examination of the evidence I agree with her Honour's reasons for the orders she proposes.

2. HAMILL J: I have had the advantage of reading the draft judgment of McNaughton J and agree with the orders her Honour proposes. Her Honour's comprehensive summary of the evidence and clear analysis of the issues makes it unnecessary to add much, or to explain in any detail why I agree that the appeal should be dismissed.

3. I have reviewed the whole of the evidence and applied a critical eye to the evidence of the complainant and the complaint witnesses. I am not persuaded that the issues raised on the applicant's behalf concerning the complainant's credibility, reliability and accuracy mean that it was not open to the jury to reach verdicts of guilty in relation to counts 5 and 7. In reaching that conclusion, I have borne in mind that the jury was in a far better position to assess the testimony of the critical witnesses including the complainant, the applicant, JG and Ms Rodrigez. Even taking into account the issues raised at the trial and on appeal, the case against the applicant appeared to be a strong one.

4. In terms of the applicant's reliance on the acquittals on counts 2, 3, 4, 6, 8, 9 and 10, I agree with McNaughton J that the respondent's submission as to the approach taken by the jury should be accepted. That is, put slightly differently, the jury generally accepted that the complainant was an honest and reliable witness and did not accept the applicant's evidence and explanations for his conduct. In accordance with the Liberato direction, it focussed on the evidence adduced by the prosecution and applied the trial Judge's directions concerning the onus and standard of proof and the need to consider each count separately. The jury gave the applicant the benefit of a generous doubt in relation to most of the offences. However, as McNaughton J demonstrates (at [133]-[143] and [163]), the complaint evidence was more compelling in relation to count 5. In relation to count 7, any concerns the jury may have had about the applicant's knowledge that the complainant did not consent, was dispelled by the sequence of events provided by the complainant as to the rather extraordinary incident at the police station on 5 May 2022. That sequence of events, the conflict in the evidence, and the significance of those matters is set out by McNaughton J at [49]-[58], [150], [153]-[155].

5. The mixed verdicts comfortably pass the test of logic and reasonableness and do not lead to a conclusion that the verdicts of guilty on counts 5 and 7 were unreasonable or unable to be supported having regard to the evidence.

6. I am unable to accept that the record of the trial supports a conclusion that the jury compromised as a result of the way the case on count 1 was presented or otherwise. The differing verdicts are explained by the different supporting evidence on count 5 and the sequence of events in count 7 as that matter related to the issue of the applicant's state of knowledge.

7. An explanation for the foregoing conclusions is to be found within the judgment of McNaughton J and I need not repeat those reasons. Like her Honour, I am not left with a reasonable doubt as to the applicant's guilt of the allegations in counts 1, 5 and 7. Nor do the acquittals on the remaining counts, in the circumstances of this case and considering the matters impacting on the reliability of the complainant's evidence more generally, mean that the complainant's credibility was diminished in relation to the counts upon which the jury returned guilty verdicts.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/197a5bdb577b32e07d8d362c)

Disclaimer: Curated by HT Syndication.