Atkinson v Regina

[2006] NSWCCA 366

CITATION:	Atkinson v Regina [2006] NSWCCA 366
HEARING DATE(S):	23 August 2006
JUDGMENT DATE:	4 December 2006
JUDGMENT OF:	Grove J at 1; Kirby J at 2; Hislop J at 3
DECISION:	(1) Appeal dismissed.
CATCHWORDS:	These proceedings are subject to the limitations upon publication and/or broadcasting imposed by s 11(1) of the Children (Criminal Proceedings) Act 1987 - Criminal law - Conviction appeal - Alleged unreasonableness of jury verdicts - Rational basis to differentiate verdicts.
LEGISLATION CITED:	Children (Criminal Proceedings) Act 1987 - s 11(1) Crimes Act 1900 - ss 35(1)(a), 61, 61J(1), 562AB(1) Criminal Appeal Act 1912 - 6(1)
CASES CITED:	M v The Queen (1994) 181 CLR 487 MacKenzie v The Queen (1996) 190 CLR 348 MFA v The Queen (2002) 213 CLR 606 Weiss v The Queen (2005) 80 ALJR 444
PARTIES:	Applicant - Adrian Robert Atkinson Respondent - Regina
FILE NUMBER(S):	CCA 2006/1262
COUNSEL:	Applicant - Mr A. Cook Respondent - Ms N. Noman
SOLICITORS:	Applicant - Legal Aid Commission of New South Wales Respondent - Director of Public Prosecutions (New South Wales)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	05/11/0565
LOWER COURT JUDICIAL OFFICER:	Graham DCJ
LOWER COURT DATE OF DECISION:	4 September 2005

- 1 -

2006/1262

GROVE J
KIRBY J
HISLOP J

4 December 2006

Adrian Robert ATKINSON v REGINA

Judgment

These proceedings are subject to the limitations upon publication and/or broadcasting imposed by s 11(1) of the Children (Criminal Proceedings) Act 1987 .

1 GROVE J: I agree with Hislop J.

2 KIRBY J: I agree with Hislop J.

Introduction

3 The appellant was charged on indictment on the following counts:

1. On 14 January 2005 at Surry Hills New South Wales he did intimidate a named victim (“A”) with intent to cause A to fear physical harm (contrary to Crimes Act 1900 s 562AB(1));

2. On 13 January 2005 at Camperdown New South Wales he did assault A (contrary to Crimes Act 1900 s 61);

3. On or about 19 February 2005 at Camperdown New South Wales he did have sexual intercourse with A, without the consent of A, knowing she was not consenting and at the time of the offence threatened to inflict actual bodily harm (contrary to Crimes Act 1900 s 61J(1));

4. On or about 19 February 2005 at Camperdown New South Wales he did have sexual intercourse with A, without the consent of A, knowing she was not consenting and at the time of the offence threatened to inflict actual bodily harm (contrary to Crimes Act 1900 s 61J(1));

5. On or about 19 February 2005 at Camperdown New South Wales he did maliciously wound A (contrary to Crimes Act 1900 s 35(1)(a)).

The appellant pleaded not guilty to each count.

4 On 4 September 2005 a District Court jury found the appellant guilty on count 1, not guilty on count 2, not guilty on count 3 but guilty on the statutory alternative to count 3 (that is of the offence of having sexual intercourse with A without the consent of A, knowing she was not consenting) and not guilty on count 4. The jury was discharged in respect of count 5 as it was unable to reach a verdict.

5 The appellant has appealed against his conviction on count 1 and the statutory alternative to count 3. The ground of appeal is:

The verdicts of guilty on counts 1 and 3 in the indictment are unreasonable having regard to the evidence in the trial and the verdicts of not guilty on counts 2 and 4 together with the jury’s inability to reach a verdict on count 5 in the indictment.

Background

6 The appellant and A were in a relationship with one another in the period in which the alleged offences took place. A was aged 16 at the time, the appellant 28. A was staying with the appellant at his unit during most of the relevant period.

7 It is appropriate, initially, to consider the circumstances surrounding each count.

Count One - On 14 January 2005 at Surry Hills New South Wales he did intimidate A with intent to cause the said A to fear physical harm.

8 On 13 January 2005 A left the appellant’s unit following the events described in respect of count 2. She went to live with her father in his flat. A gave evidence that on 14 January 2005 numerous telephone calls were made to the flat. She answered one of the calls and the appellant in that call threatened to kill her. The appellant came to the flat, rang the buzzer and shouted similar threats.

9 Telephone records revealed there had been a large number of telephone calls made to the father’s flat on 14 January 2005 from various places including the flat next door to the father’s flat and a public phone box from the corner of the street where the father’s flat was located.

10 A’s father gave evidence there had been a number of calls to his flat that day and that he had answered one of those calls and spoken to the appellant who was abusive and threatened to kill both him and his daughter. He had told the appellant A did not wish to speak with him and had asked the appellant to leave them alone.

11 The father telephoned the police in respect of the threats. The police responded. A made complaints to the police officer who attended, which complaints were consistent with her evidence at the trial.

12 The appellant, in his evidence, admitted he telephoned the flat on a number of occasions from various places, that he spoke to A’s father and that he went to the flat and sought admittance. He denied that he made any threats and said he was endeavouring to contact A to give her a money order she had left behind and “probably to try and see her again”.

Count Two - On 13 January 2005 at Camperdown New South Wales he did assault A.

13 The Crown case on this count, as opened to the jury, was that pieces of paper containing telephone numbers of male friends of A were lying on a table in the unit. A attempted to grab the pieces of paper. The appellant attempted to prevent this and A fell to the floor. As she attempted to stand up the appellant walked around behind her and grabbed her in a bear hug around her waist. She sustained a slight bruise on her arm but it was very sore and she was very scared for her safety. The grabbing in a bear hug was the basis of the assault charge.

14 A, in her evidence, said that the appellant grabbed her by the shirt and put a knife to her throat then punched her on the arm. It was only in cross examination that she referred to the bear hug. In cross examination she also acknowledged she may have been mistaken about the punching and that may have happened on another occasion. She said she hadn’t told the police about the knife because she was “scared”.

15 The appellant in his evidence agreed A fell to the floor. He said that he picked her up. He denied punching her, grabbing her by the shirt or threatening her with a knife.

Count Three - On or about 19 February 2005 at Camperdown New South Wales he did have sexual intercourse with A, without the consent of A, knowing she was not consenting and at the time of the offence threatened to inflict actual bodily harm.

16 The events the subject of counts 3, 4 and 5 occurred on 19 February 2005. The Crown case, as opened, was that A had given the appellant a second chance with their relationship and that on 19 February 2005 at his unit he took a knife from the kitchen bench, grabbed her by the front of the shirt and pinned her against the wall saying “I’ll kill you, you bitch, don’t be stupid”. He then cut her upper left arm using a razor (count 5), then forced her to fellate him (count 3) and then engaged in non consensual penile vaginal intercourse with her (count 4).

17 A, in giving her evidence in chief, said the vaginal intercourse was first and the fellatio occurred next. The cutting incident initially was omitted from her account. Subsequently in her evidence in chief she referred to the cutting incident but said it occurred after the intercourse.

18 A gave evidence that following these events she left the unit and went to a nearby service station. The person working at the service station at the time confirmed her attendance early in the morning and that she was crying and said she needed help. She said someone was chasing her, wanted to kill her and break her arm. She had a white bandage on her arm. He gave her money to make a phone call. He observed her make a call. The attendant knew her only as a customer. A made no reference to the attendant of any matters of a sexual nature.

19 A made a “triple 0” call. She told the operator her arm had been cut and that she had been forced to fellate the appellant.

20 The police arrived at the service station at 6.10am in response to that call. A gave the police a statement that the appellant had cut her arm with a razor blade and had forced her to fellate him. She confirmed this to other police who arrived half an hour later. One of the investigating police officers gave evidence A had told him the fellatio took 90 minutes. In her evidence she said it took 10 - 15 minutes.

21 The plaintiff was examined by Dr Shand on the afternoon of 20 February 2005. Dr Shand recorded a history given to her by A at that time which was consistent with the case opened by the Crown. In particular the sequence of events described to the doctor was the same as opened by the Crown.

22 The appellant denied fellatio occurred.

Count 4 – On or about 19 February 2005 at Camperdown New South Wales did have sexual intercourse with A, without the consent of A, knowing she was not consenting and at the time of the offence threatened to inflict actual bodily harm.

23 A made no complaint to the service station attendant that the appellant had non consensual vaginal intercourse with her on 19 February 2005. She made no such complaint in her triple 0 telephone call. She made no such complaint when interviewed by the police during the morning of 19 February 2006.

24 The allegation first arose when a police office erroneously said to her:

You told the officers who first saw you at the BP service station that you were raped but you didn’t mention it in your statement, were you raped by your boyfriend. A, were you raped by your boyfriend. A then responded “yeah he raped and I’m not going to be examined.”

25 Subsequently A said she did not wish to proceed with her complaint against the appellant as she did not wish to get him into further trouble. She later changed her mind. Medical examination on 20 February 2005 revealed the presence of the appellant’s sperm in A’s vagina. The appellant agreed he had had penile vaginal intercourse with A at the relevant time but said it was consensual.

Count 5 – On or about 19 February 2005 at Camperdown New South Wales he did maliciously wound A

26 A had a bandage on her arm when she attended the service station. She had a cut on her arm over a contraceptive implant in the arm. She told the operator during the triple 0 call that the appellant had cut her with a razor blade in an attempt to remove a contraceptive implant from her left arm. She made consistent complaints to police in this regard. A number of razor blades were found in the bedroom. Forensic testing revealed that two had the blood and DNA of A on them. No clear DNA samples were obtainable from the handle of the razors.

27 In evidence A said the appellant cut her arm three or four times. The appellant said A cut her own arm. Dr Shand gave evidence that it was most likely the wound was made by a single incision though this could not be precisely determined.

Relevant principles

28 The obligation to establish inconsistency of verdicts rests upon the person making the submission – MacKenzie v The Queen (1996) 190 CLR 348 at 368.

29 Section 6(1) of the Criminal Appeal Act 1912 provides:

(1) The court on any appeal under section 5 (1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence … and in any other case shall dismiss the appeal; …

30 The question an appellate Court must consider to determine whether a verdict of guilty is unreasonable, or cannot be supported, having regard to the evidence, is whether upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty –MFA v The Queen (2002) 213 CLR 606 at [25] though such formulation should not be confused with the question whether a trial Judge ought to have directed a verdict of not guilty [26] - see also Weiss v The Queen (2005) 80 ALJR 444 at [41].

31 Where multiple offences are alleged involving the one complainant, verdicts of not guilty on some counts do not necessarily reflect a view that the complainant was untruthful or unreliable and that an appellate Court should consider the reasonableness of guilty verdicts on the basis that the complainant is a person of damaged credibility - MFA v The Queen.

32 In M v The Queen (1994) 181 CLR 487 at 493 the High Court held:

… the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the Court must pay full regard to those considerations.

33 In MFA v The Queen Gleeson CJ, Hayne and Callinan JJ said at 617 [34]:

… In jurisdictions where unanimity is required, such as New South Wales, every juror must be satisfied beyond reasonable doubt of every element in the offence. In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. This may not be unreasonable. It does not necessarily involve a rejection of the complainant's evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant's evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others. Thirdly, there is the consideration stated by King CJ in R v Kirkman, and referred to in later cases: it may appear to a jury, that, although a number of offences have been alleged, justice is met by convicting an accused of some only. And there may be an interaction between this consideration and the two matters earlier discussed.

Discussion

34 The appellant submitted that the convictions should be set aside because of the inconsistency in the verdicts and the inherent unreliability of A.

35 I do not agree. In my opinion neither the acquittals on counts 2 and 4 or the failure to agree on count 5 necessarily reflected an adverse opinion by the jury as to A’s veracity or reliability as a witness. The acquittal on count 4 and the failure to reach a verdict on count 5 are consistent with a cautious approach by at least some of the jurors to their task resulting in a reasonable requirement that there be some evidence supporting that of A before the appellant was found guilty beyond a reasonable doubt on any count.

36 The critical issue on count 2 was whether the appellant had grabbed A in a bear hug. A gave evidence to this effect and the appellant conceded he had picked A up off the floor. The evidence about the bear hug was such that it did not establish the necessary hostility to amount to an assault. This verdict does not necessarily imply A was disbelieved.

37 As to count 4 there was objective evidence that penile vaginal intercourse had occurred between the appellant and A at the relevant time. The only issue was whether it was consensual. This involved word against word. It may well be that the jury, having found the appellant guilty on the alternative third count logically could have concluded that it was more likely than not that the penile vaginal intercourse occurring at approximately the same time would also have been non consensual. However the acquittal is consistent with at least some members of the jury requiring supporting evidence before proceeding to conviction and is not necessarily indicative that A was disbelieved by the jury.

38 The jury was unable to reach a conclusion on count 5, even though A had consistently alleged the appellant had cut her arm using the razor. The presence of A’s DNA on two razor blades may be suggestive that there was more than one cut and the use of the plural “blades” by the appellant in his evidence tends to support this. On the other hand there is the evidence of Dr Shand that a single incision was more likely though one could not be certain of this. It is consistent that the doubt as to the number of cuts inflicted may have caused a cautious member or members of the jury to refrain from convicting the applicant. As the thrust of the applicant’s case was that the applicant’s credibility had been destroyed the failure to reach agreement on count 5 was neutral on this issue.

39 The convictions on count 1 and the alternative to count 3 were supported by other evidence. This provides a rational basis to differentiate these convictions from the results reached by the jury on the other counts.

40 As to count 1 the evidence of A as to numerous phone calls being made to her father’s flat was supported by the evidence of her father, the telephone records, the complaint to police on that day and contemporaneous and consistent written statements given by A to the police and, to a degree, by the evidence of the appellant. It is also consistent with the irrational behaviour of the appellant in making numerous attempts to contact A when it was obvious she did not wish to speak to him.

41 The evidence of A in relation to count 3 was supported by the early complaint to the triple 0 operator and to the police that the appellant had forced her to fellate him; the consistency in respect of this complaint; her arrival at the service station in the early morning in a distressed state as attested to by the evidence of the garage attendant, an independent witness. It is unsurprising that A did not inform the male attendant at the service station of the sexual assault upon her because of its intimate nature. Her evidence she did not do so due to embarrassment is acceptable. She made a consistent complaint to the triple 0 operator a few moments after arriving at the service station. As there was no evidence to corroborate the use of a knife at that time it is not surprising that the jury found only that the statutory alternative to count 3 had been established.

42 In my opinion the appellant has not demonstrated that the verdicts of guilty on counts 1 and 3 were unreasonable having regard to the evidence or the verdicts on counts 2 and 4 and the failure of the jury to agree on ground 5. Accordingly I would dismiss the appeal.

Proposed orders

43 Appeal dismissed.

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