For those following the 4 corners show on the trials of Luke Lazarus for rape, the reasons for judgment of Tupman J seem to be available online here; static1.1.sqspcdn.com/static/f/55671…
Of interest: Tupman J says she wouldn't have made the order (sought by LL and opposed by the DPP) that LL be tried by judge (not jury). But she had no say in the matter, apparently. (Strange thing to say in the reasons for judgment, I reckon.) 
She (correctly) points out a difference between jury trials and judge-only trials: she is well aware of facts (LL's prior conviction and sentence) that the jury (in theory anyway) would not have been aware of.
Indeed, she was required to read heaps of adverse publicity material and LL's character references, as well as SM's statements, in order to make pre-trial rulings on various things, including suppression orders. Again, that meant seeing things no jury could see.
Here's Tupman J what is factual determinative of the outcome of the trial. (I agree with her take on this - it does all come down to the somewhat narrow differences between SM's and LL's accounts.)
Tupman J's observations of the CCTV at just before 4am were that SM was not visibly affected by alcohol at that point. (She would have had something like 10 standard drinks by then.)
Another of those small differences (barely relevant in my view) is whether LL said he was the part owner or not. Tupman J finds (plausibly I think) that he said he was the son of the part owner and SM misunderstood.
This is confusing. Tupman J says that the SM's evidence was that LL suggested they go 'somewhere more private'. I thought that was LL's story and that SM's was that LL suggested they go to a VIP area.
This is also strange. There's a key moment on the CCTV where SM points up the stairs, possibly implying that she wanted to go back up. But neither the P or D asked her about that...? Weird. She must have been asked about that somewhere, surely?
The only person asked about this was LL and he said he didn't know. There's no Browne v Dunn issue here - no-one is being contradicted. But it is just odd.
The same also applies for another key moment - SM putting her hand against a wall as she exits to the alley. No-one was asked about it. (Much of her evidence was a video replay from the jury trial, though she was put on the stand to clarify some points - about LL's phone.)
Sorry, LL was asked, in cross-examination. Also, Tupman J says that SM was 'either smiling or laughing' at this point. This was something we could not see on 4 corners because her image was blurred.
The big divergence between the accounts is next. But the divergence is less big, it seems, because (according to Tupman), SM conceded that some parts of LL's story (specifically kissing after the 'friend' discussion) 'may' have happened,
The change in tone. Again, Tupman J's take is that the difference between the two accounts wasn't great.
Tupman J says that SM was not asked why she complied with LL's instruction despite not consenting to sex. Again, this is an odd gap in the evidence,. As well, Tupman J says that SM was clear that LL was not aggressive or rough.
Tupman J questioned SM's statement 'what do you expect, I'm a fucking virgin' after her anus was penetrated. I think - though it's unclear - that Tupman J regards the statement as more likely to be made when LL was trying to penetrate her vagina. (I can't see how this matters.)
Oh, I see. Tupman J sees this issue as making LL's account - where this exchange happened before she got on her knees - more likely than her account. I guess that makes some sense, though parsing statements made during sex or rape like this is pretty marginal, I think.
Anal penetration. I would have thought there was a good argument distinguishing (any) consent (or belief in consent) to vaginal sex from consent etc to anal sex. But it seems like the prosecution didn't pursue this line. LL's story supposedly shows clear consent to anal sex.
I won't set it out here, but Tupman J spends pages and pages on the question of whether the event was mostly anal sex (SM's account) or failed vaginal and then anal sex (LL's account), ultimately favouring LL's account for lots of reasons. This in turn affects LL's beliefs.
This discrepancy is also a reason Tupman J rejects SM's claim that she said 'stop' at some point.
Tupman J regards the subsequent phone issue has minor (and taking up too much time.) She seemingly finds that LL had immediate regrets about the anal sex.
The trial debate about the phone does seem to be silly. LL is clearly an asshole, but his 'trophy list' is neither here nor there. As is the question of why he couldn't remember SM's name minutes after meeting her / kiss her / penetrating her anus. (I guess Saxon is distinctive?)
More on the phone. I truly cannot see how these details matter either way.
The phone debate digs into questions of whether or not LL deleted his trophy list or not - it seems he added a new name after Saxon's - with detailed forensic analysis. I won't set it out here. These details seem so marginal. E.g:
Lunch break. And a sad interlude about media, cameras and the complainant:
After lunch, Tupman J resolves debates about the phone and intoxication in favour of the defence, at length. But, as she points out, none of that resolves the key issues of consent and belief in consent.
Tupman rightly rejects a defence argument about SM's failure to make an official complaint while at Kings Cross.
SM's complaint to her friend at the nightclub. In this account, she links LL's statement about the VIP area to speaking to the DJ, which first my guess about when the VIP area came up. That is, I don't think he got her into the alley by claiming it was the way to a VIP area.
Tupman J says (correctly I think) that the powerful complaint evidence is more relevant to the question of whether or not she consented than to LL's belief. That being said, it is relevant to both, though the (contested) details matter more to the latter.
The judgment moves to a review of the sourcing of the CCTV evidence, and then to a limited exploration of LL's trophy list, yielding a claim that he had had anal sex and sex in the alleyway previously.
LL also had character evidence, including evidence of his interactions with women, including sexual interactions. There is no detail of what this evidence is. (The witnesses' names were suppressed.)
Oh wait, there is detail. A Crown witness (a worker at the club) said that LL was the person the female staff would go to if they were being harassed by someone.
There were various male friends saying he is no rapist, and then a 'compelling' female friend who described him stopping having sex with her at her request.
She is the source of the 'contemporary morality' evidence, on the (stupid) issue of whether anyone would ever have anal sex with a stranger. This came up because the prosecution asked all character witnesses to reflect on LL's admitted actions. She said consent is what matters.
An evidence law point: Tupman J uses the incident where LL didn't have sex with the witness, not as tendency evidence (it's too different from what is alleged against him with SM), but as character evidence.
On character, Tupman J specifically rejects the relevance of publicity about LL's private school background etc.
Tupman J finds that SM did not consent to sex with LL:
On to fault elements, and Tupman J says that the whole issue turns on reasonable grounds. She accepts that LL honestly believed that SM was consenting, relying on texts and telephone intercepts, as well as LL's evidence.
On reasonable grounds, Tupman J returns to the contemporary morality issue. As I suspected, she was rejecting a claim by the prosecution that no-one ever consents in these circumstances. I think she's right to reject that claim, and that there's nothing to this criticism of her.
And, now her conclusion. Tupman J simply sets out the facts she accepts and then concludes that LL had reasonable grounds to think this was consensual, quick, unromantic sex. Note that she makes no reference to steps taken by LL to ascertain consent, as held by the NSWCCA.
And that's it. No remarks to LL or SM at the end.
A quick take: everything turned on the details, especially the mechanics of the shift to anal sex. Tupman J was unimpressed by the prosecution focus on wider issues (trophy lists, sex in an alley) that weigh heavier on jurors. There's nothing to 'conventional morality' point.
I see no errors in Tupman J's reasoning (apart from the one found by the NSWCCA) but it's also clear that another judge (or a jury) could well have gone the other way. That's because this is a close case, not because the system is capricious, I reckon. (End thread.)
