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District Court 18 September 2020

R v Jesse Robert Thurlow

[2020] NSWDC 850

Sexual offencesPublic order & justice offences
JUDGE ALONE TRIAL REASONS ON VERDICT

Citation: R v Jesse Robert Thurlow [2020] NSWDC 850
Court: District Court of New South Wales
Date: 18 September 2020
Judge(s): H. L. Syme DCJ

Background

The accused faced an indictment arising from events at a Kensington share house in April 2015. The complainant, who had met one of the housemates through the dating app Tinder, visited that evening and had no prior acquaintance with the accused. The indictment alleged two counts of sexual assault (Counts 1 and 2) and a charge of attempting to pervert the course of justice in relation to a housemate's police statement (Count 4). The accused pleaded guilty at the commencement of trial to a separate perverting-the-course-of-justice charge involving another witness (Count 3).

The accused applied for trial by judge alone, which was opposed by the Crown. The court granted the application in light of COVID-related conditions then affecting the District Court, the anticipated trial length, and the interests of justice. The indictment had been severed, meaning the co-accused faced a separate trial, which created complications around the admissibility of certain evidence and the sequence in which relevant facts emerged during the hearing.

The central factual dispute on Counts 1 and 2 was whether the complainant consented to sexual activity with the accused. On Count 4, the dispute concerned whether the accused asked his cousin, a housemate, to tell police a false version of events, knowing it to be false, with the intention of impeding the investigation.

Legal Issues

  • Whether the Crown proved beyond reasonable doubt that the complainant did not consent to sexual intercourse with the accused
  • Whether the Crown proved that the accused knew the complainant was not consenting
  • Whether the accused had a reasonable belief in the complainant's consent
  • Whether the accused asked or encouraged Kate Thurlow to make a false statement to police, knowing the information to be materially false, with the intention of perverting the course of justice
  • What weight ought be given to the complainant's credibility, given identified lies and inconsistencies, in the context of a sole-witness Crown case

Decision

Issue 1: Consent and knowledge of lack of consent (Counts 1 and 2)

The court accepted that sexual activity occurred, including digital penetration of the complainant's vagina and fellatio performed on the co-accused, and that the accused struck the complainant on the right buttocks at least twice with hard blows and without consent (at [240]). However, the court could not be satisfied beyond reasonable doubt that the accused penetrated the complainant with his penis (at [239]), and could not be satisfied to the required standard that the complainant did not consent to the broader sexual activity that occurred (at [244]).

The court found several significant problems with the complainant's evidence. She lied about the timing and circumstances of a phone call to her friend Jessie Christensen, claiming it was made from the bathroom at the house while she was still present, when telephone records confirmed it occurred after she had left (at [148]). Her evidence that she saw handprints and extensive bruises across her body and legs in a hospital mirror was found to be invented and significantly exaggerated, unsupported by the medical examination findings (at [168]-[169]). These findings constituted serious blows to her credibility as a whole (at [153], [169]).

The court found that the complainant did not brag about giving oral sex to the group (at [235]), and was not behaving flirtatiously toward the accused in the earlier part of the evening (at [236]). It accepted that some physical contact occurred on the balcony prior to the parties moving to the bedroom, and that it was possible the complainant acquiesced in breast touching at that point without indicating discomfort (at [237]). Taking the complainant's evidence as a whole, including her inconsistencies, embellishments, and identified lies, the court could not be satisfied to the required standard on the issue of lack of consent (at [244]).

Issue 2: Perverting the course of justice (Count 4)

The court found the accused guilty on Count 4. Relying heavily on intercepted telephone calls, the court found that a meeting on 20 April 2017 was arranged so that the accused and others could pool their accounts and construct a consistent story for police (at [212]). In a telephone call to Kate Thurlow on 28 April 2017, the accused used words that could only be read as requesting her to tell police a version of events that had been fabricated at that meeting, including that the complainant had sat on the laps of men in the lounge and had bragged about giving oral sex (at [258]-[259]). The court found the accused knew both scenarios were false (at [261]), and that his intention in making the call was to bring about a diversion of the police investigation (at [264]-[265]). The fact that Kate did not ultimately include all of the suggested falsehoods in her police statement did not affect the finding, as the offence required only the doing of the act with the requisite intent, not a resulting miscarriage of justice (at [263]).

Orders Made

  • Count 1: Not Guilty
  • Count 2: Not Guilty
  • Count 4: Guilty

Key Takeaways

  • In a judge-alone trial on sexual assault charges, where the complainant is the sole Crown witness on the direct allegations, the court scrutinised her evidence with particular care, ultimately finding that identified lies and embellishments prevented the Crown from establishing lack of consent beyond reasonable doubt (at [28]-[30], [244]).

  • A complainant's credibility is not assessed in isolation: the court compared her account against medical evidence, telephone records, complaint evidence given to friends shortly after the event, and the evidence of other witnesses present that evening, looking for corroboration where it would ordinarily be expected to exist (at [30], [153]).

  • Under s 61HA(7) of the Crimes Act 1900, the absence of physical resistance does not, by itself, establish consent; the court must assess all circumstances bearing on whether consent existed and whether the accused held a reasonable belief in consent (at [7], [11]-[12]).

  • Where telephone intercepts captured an accused, in plain terms, asking a witness to tell police a fabricated account knowing it to be false, the court treated this as overwhelming evidence of an intention to pervert the course of justice, regardless of whether the witness ultimately repeated all of the suggested falsehoods in her statement (at [263]-[265]).

  • The District Court confirmed that, consistent with Fleming v The Queen [1998] HCA 68, a judge sitting without a jury must expose the reasoning process linking findings of fact to principles of law, and take into account all directions and warnings that would have been required in a jury trial (at [17]-[18]).

Legislation and Cases Referenced

Legislation
- s 61HA (7) Crimes Act 1900
- s 293 Criminal Procedure Act

Cases
- R v XHR [2012] NSWCCA 247
- Lazarus v R [2016] NSWCCA 52
- Fleming v The Queen [1998] HCA 68