Citation: R v Mercuri De Figueiredo [2021] NSWDC 424
Court: District Court of New South Wales
Date: 20 August 2021
Judge(s): Mahony SC DCJ
Background
The accused met the complainant, a Chilean national on a student visa in Australia, through Facebook in April 2020. Over approximately twelve days of online messaging, the accused persistently pursued a romantic relationship with the complainant, who consistently declined his sexual overtures and explicitly told him she would not have sex with him.
On 25 April 2020, the complainant visited the accused at his Waterloo apartment to discuss a potential room rental. During the evening she consumed wine and a caipirinha cocktail he prepared. In the early hours of 26 April 2020, she became extremely unwell and discovered her pupils were dilated. She confronted the accused, who admitted he had placed a drug in her drink. The drug was MDMA.
The accused was charged on an indictment containing three counts: administering an intoxicating substance with intent to commit an indictable offence (Count 1); sexually touching another person without consent, namely kissing (Count 2); and attempted sexual intercourse without consent (Count 3). The matter proceeded as a judge-alone trial.
Legal Issues
- Whether the accused administered MDMA to the complainant with the intent to enable himself to commit an indictable offence, contrary to s 38(a) of the Crimes Act 1900
- Whether the accused sexually touched the complainant (by kissing her) without her consent and knowing she was not consenting, contrary to s 61KC(a) of the Crimes Act 1900
- Whether the accused attempted to have sexual intercourse with the complainant without consent and knowing she had not consented, contrary to s 61I of the Crimes Act 1900
- Whether the complainant was a credible and reliable witness
- Whether the accused's account, including his explanation that the complainant accidentally consumed MDMA he had placed in his own drink, raised a reasonable doubt
Decision
Count 1: Administering an intoxicating substance with intent
The court found that the accused placed MDMA in the complainant's drink without her knowledge, with the intention of lowering her resistance to his sexual advances and rendering her more amenable to them (at [444]). The court reasoned that this was the obvious and inevitable consequence of the accused's act. Supporting that finding of intent was the accused's first response when asked what drug he had given her, namely the word "amor" (love), his subsequent admissions in the pretext phone call, and his Facebook message confirming that kissing had occurred (at [444]). The court was satisfied beyond reasonable doubt that the accused formed the relevant intention, rejecting any suggestion that his own intoxication prevented him from doing so (at [443]). A verdict of guilty was entered on Count 1 (at [445]).
Count 2: Sexual touching without consent
The court accepted the complainant's evidence that she pushed the accused away when he kissed her and that a second kissing attempt followed her return from the bathroom (at [448]). Given the circumstances, including that the accused had intentionally drugged the complainant to lower her resistance, the court found that any consent was not freely or voluntarily given. The court was also satisfied that the accused knew at the time of the first kiss that she was not consenting (at [448]). A verdict of guilty was entered on Count 2 (at [449]).
Count 3: Attempted sexual intercourse without consent
The court accepted the complainant's evidence that she lost consciousness between approximately 3:03am and 4:00am, and that when she regained consciousness the accused was on top of her with her jeans and underwear pulled to her thighs and her vagina exposed, and her blouse pulled up exposing her chest (at [432], [452]). Applying the principle in Davey v Lee [1968] 1 QB 366, the court found these acts were immediately connected with the commission of sexual intercourse without consent and could not reasonably be regarded as having any other purpose (at [452]). The accused's argument that CCTV footage showing him wearing shorts (rather than jeans) when leaving with the complainant at 4:23am undermined her account was rejected: he had ample opportunity to change after she went to the bathroom (at [453]). A verdict of guilty was entered on Count 3 (at [454]).
Credibility findings
The court found the complainant to be a generally truthful witness whose evidence remained consistent throughout lengthy cross-examination (at [301]). Her account was corroborated by contemporaneous messages to her ex-boyfriend Luis Rozas, communications with the accused's former wife, and significantly by the accused's own admissions in a lawfully recorded pretext phone call on 11 June 2020 (at [302]). By contrast, the court found the accused was not a witness of truth and that his evidence was tailored to meet the Crown case and to shift focus to the complainant (at [422]). His explanation that the complainant accidentally consumed MDMA he had placed in his own caipirinha was rejected as implausible and fabricated (at [437]). His lies to police about drug consumption were found to have been made to conceal his guilt in respect of the offences, not merely to avoid visa consequences as he claimed (at [438]).
Orders Made
- Verdict of Guilty on Count 1 (administering an intoxicating substance with intent to commit an indictable offence)
- Verdict of Guilty on Count 2 (intentional sexual touching without consent)
- Verdict of Guilty on Count 3 (attempted sexual intercourse without consent)
Key Takeaways
- In a judge-alone trial under s 132 of the Criminal Procedure Act 1986, the judge must apply all directions of law that would be given to a jury, including the Liberato direction, and must set out the principles of law applied and the findings of fact relied upon pursuant to s 133(2) (at [291]).
- Under s 38(a) of the Crimes Act 1900, intent to commit an indictable offence may be inferred from the circumstances of the administration, the accused's conduct before and after the act, and the obvious and inevitable consequences of the act itself; a single word spoken by the accused ("amor") was treated as evidence of that intent (at [442], [444]).
- Where an accused administers an intoxicating substance to lower another person's resistance to sexual advances, any subsequent touching cannot amount to freely and voluntarily given consent for the purposes of s 61KC(a) (at [448]).
- Applying Davey v Lee, acts of exposing a complainant's genitalia and pulling down her clothing while she was unconscious were found to be immediately connected with the commission of sexual intercourse without consent and incapable of any other reasonable characterisation, supporting a conviction for attempt (at [452]).
- Significant inconsistencies between an accused's police interview and trial evidence, combined with proven lies about central facts, can render the accused's evidence wholly unreliable and support a finding that the lies were made to conceal guilt rather than for an asserted collateral reason such as fear of visa cancellation (at [420]-[423], [438]).
Legislation and Cases Referenced
Legislation
- Crimes Act 1900
- Criminal Procedure Act 1986
- Law Enforcement (Power and Responsibilities) Act 2002 (NSW)
Cases
- Davey v Lee [1968] 1 QB 366