Bartholomew v The Queen
[2010] VSCA 291
•11 October 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2009 0807
| DARREN WILLIAM BARTHOLOMEW | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | MAXWELL P, WEINBERG JA and ROSS AJA |
| WHERE HELD | HORSHAM |
| DATE OF HEARING | 11 October 2010 |
| DATE OF JUDGMENT | 11 October 2010 |
| MEDIUM NEUTRAL CITATION | [2010] VSCA 291 |
| JUDGMENT APPEALED FROM | R v Bartholomew (Unreported, 20 August 2009, County Court of Victoria, Judge Gamble, 7 September 2009) |
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CRIMINAL LAW – Application for leave to appeal against conviction – Rape – Whether verdict unreasonable and unable to be supported by evidence – Verdict properly open to jury – Leave to appeal refused.
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| Appearances: | Counsel | Solicitors |
| For the Applicant | Mr L C Carter | Jeremy Harper & Associates |
| For the Respondent | Mr T Gyorffy | Mr C Hyland, Solicitor for Public Prosecutions |
MAXWELL P
WEINBERG JA
ROSS AJA:
After a trial lasting some two weeks, the applicant was convicted on 20 August 2009, in the County Court at Ballarat, of one count of rape (count 2). He had earlier pleaded guilty to one count of trafficking in a drug of dependence, namely cannabis (count 1).
On 7 September 2009, the applicant was sentenced to a term of three months’ imprisonment on count 1, and to a term of five years and three months’ imprisonment on count 2. The trial judge ordered that the sentences be served concurrently. The total effective sentence was therefore five years and three months’ imprisonment. His Honour fixed a non-parole period of three years and three months.
The evidence led at trial
According to the complainant, she became acquainted with the applicant in mid-2002. The applicant worked as a barman at a hotel and the complainant worked there from time to time. After some time, the applicant became her supplier of cannabis.
On a day between 1 May and 31 August 2004, the complainant contacted the applicant to obtain cigarettes and three grams of cannabis. She asked if the applicant could deliver them to her house, but he refused. She rode her bicycle to the applicant’s house and they travelled by car to purchase the cigarettes. During the trip back to the applicant’s house, he put his hand on her leg saying that he knew she was interested in him. She immediately pushed his hand away and told him she had no interest in him at all.
They arrived at the applicant’s house and the complainant moved towards her bicycle. However, the applicant suggested that she come inside the house while he weighed up the cannabis. She did so, and sat on a chair. The applicant handed her three grams of cannabis (count 1), and then straddled her on the chair, repeating that he knew she ‘wanted it’. The complainant said that she resisted by pinching the applicant’s leg as hard as she could.
According to the complainant the applicant then stood up and pointed towards his bedroom door. The complainant again told him she had no interest in having sex with him. She acknowledged, however, that she went into the bedroom. She said that she did so because she was fearful he may either become violent, or take the cannabis away from her.
The complainant said that the applicant attempted unsuccessfully to remove her top. Over her protests, he then removed her underpants and made her lie on the bed. He then had sexual intercourse with her against her will until he ejaculated (count 2). After dressing himself, the applicant had a short conversation with her about paying for the cannabis. The complainant then left and returned home.
The complainant initially said nothing to anyone about the events on the day in question. It was not until some six months or so later, in early 2005, that she told her estranged partner, DT, what had happened. She did so on a night when the applicant had come to her place after she telephoned him asking him for cannabis. She went outside to speak to the applicant, and came back visibly distressed. It was at that point that DT questioned her. Later that night, DT confronted the applicant at his house. According to DT, the applicant said words to the effect that, ‘[the complainant] knew what she was doing, she was paying for the gram’.
The complainant did not report the matter to the police until October 2007. She said that DT had told her to go to the police when she first told him what had happened, but she had declined to do so. The reason why she ultimately made a formal complaint was because she was under particular stress. Family Services had made it clear that she would lose her children if she did not get her act together. DT had threatened to take her daughter away from her if she did not go to the police.
The complainant denied any arrangement with the applicant to cancel the debt that she owed him for drugs in exchange for sexual favours. She further denied that a particular person, MG, had been present at the applicant’s house on the day of the rape.
DT’s evidence differed in certain respects from that of the complainant. He said that she had told him that the applicant had ‘forced her into his room’. According to DT, after he had confronted the applicant, he had returned to the complainant’s home and told her what the applicant had said. She responded ‘that she had to pay for the weed and everything anyway, how can it be the payment for it when she’s had to pay cash for it’.
The defence called two witnesses, the applicant and MG. According to the applicant, there was no touching incident of the kind described by the complainant during the trip in the car. Nor had he made any statements of a sexual nature. He further denied having made any sexual advances when they returned to the house. He denied any ‘straddling incident’.
The applicant said that his housemate, MG, had been in the lounge room when the complainant accompanied him into the house. He agreed that he had pointed towards his bedroom when they walked in the front door. He said that he told the complainant that the money she owed him was getting out of control. She replied ‘Can we cut it out?’. He understood that to mean that she was prepared to have sex with him in order to cancel out the debt.
The applicant’s evidence was that he went to the toilet, and when he came out the complainant was already in the bedroom. He said that he walked in and they both got undressed. He claimed that they both got onto the bed and he tried ‘to get it up’ but was having trouble and could not do it. He denied that the complainant had intimated that she did not want to have sex with him.
In examination-in-chief, the applicant said that, although he could recall DT coming around and banging on his door, he had no recollection of anything that was said. When it was put to him in cross-examination that he had told DT that the complainant ‘knew what she was doing’, and was ‘paying for the gram’, the applicant said that this was a lie.
MG gave evidence that he only met the complainant once, when she turned up at the applicant’s house. He said he saw her in the lounge room and kitchen. He described her as seeming ‘comfortable and relaxed’. He said that he subsequently stirred the applicant regarding his having slept with the complainant. The applicant had replied that he was drunk and incapable of doing anything.
In March 2008, the applicant was interviewed by police in relation to these matters. He made a no comment record of interview.
Grounds of appeal
The applicant now seeks leave to appeal against conviction. He relies upon one ground of appeal only, namely, that the verdict is unreasonable and unable to be supported by the evidence.
Competing submissions
It was submitted on behalf of the applicant that the jury ought to have had a reasonable doubt as to the truthfulness and accuracy of the complainant’s allegation that she was raped by the applicant. The account which he gave could not, it was submitted, have been excluded to the requisite standard.
In support of that submission, the applicant made the following points:
·the complainant’s version of events was replete with internal inconsistencies. For example, in her evidence at trial she said that she had physically resisted two (disputed) earlier advances, namely, that in the car returning from the supermarket, and secondly, the straddling incident, but that she did not resist any attempt to remove her pants. Her explanation for not having resisted at that stage, namely that she was frozen with fear, and did not know what to do or say, lacked credibility;
·the complainant’s account of the rape was in stark contrast with the evidence given by DT as to what she had told him. Her evidence was that she had walked into the bedroom of her own volition, whereas DT said that she had told him that she had been forced into the bedroom;
·at the committal, the complainant said that she had first reported the matter to police about a week after telling DT about it. At the trial, she acknowledged that she had not reported the matter to the police until more than two and a half years after telling DT about it;
·at the committal, the complainant said that she had obtained cigarettes from the applicant from time to time. At the trial, she said that the only time she had obtained cigarettes from him was on the night of the alleged offence;
·the delay in reporting the matter to the police was said to be not merely extraordinarily lengthy, but also essentially unexplained. For obvious reasons there was no forensic evidence to support the complainant’s account, particularly what she said about the applicant having ejaculated;
·both the complaint she made to DT, and the complaint made to the police, were brought about as a result of pressure being placed upon the complainant;
·DT’s account of what the applicant had told him was consistent with the defence case that whatever had taken place between the applicant and the complainant had been entirely consensual. (Curiously in that regard, the applicant denied in terms and forcefully that any such conversation between DT and himself had occurred);
·on DT’s evidence, the complainant had not denied the applicant’s version when it was conveyed back to her after his encounter with the applicant. Her response to DT (that she had to pay for the drug anyway) was consistent with the applicant’s evidence that he had told her that she still had to pay what was owing;
·it was said that the applicant’s account was itself plausible. The prosecutor’s argument to the jury – that it was unlikely that the applicant would agree to forgive the debt if the complainant had sex with him – lacked cogency given that the applicant was a single parent strapped for cash. The same could be said of the prosecutor’s argument that it was unlikely that the applicant would not discover until the last moment that he could not achieve an erection;
·MG’s evidence was consistent with the defence case. He saw the complainant accompany the applicant into the bedroom. He did not witness any straddling incident, or any conflict between them;
·MG’s evidence regarding the conversation that he had with the applicant on the following morning, in which the applicant said that he had been unable to perform sexually, was said to lend credibility to the applicant’s account and to rebut any suggestion of recent fabrication; and
·despite the prosecutor’s attempt to undermine MG’s credibility on the basis that there was no evidence to suggest that the applicant was drunk on the day in question, that was not the case. The complainant herself said that the applicant had been drinking, so much so that he had asked her to drive his car when they went to buy the cigarettes.
The Crown responded to these submissions by first reminding the Court that the relevant test, in relation to a ground of this nature, was that set out by the High Court in M v The Queen.[1] It was submitted that when applying that test the following observation by Hayne J in Libke v The Queen[2] should be borne in mind:
It is clear that the evidence that was adduced at the trial did not all point to the appellant's guilt on this first count. But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard. In the present case, the critical question for the jury was what assessment they made of the whole of the evidence that the complainant and the appellant gave that was relevant to the issue of consent to the digital penetration that had occurred in the park. That evidence did not require the conclusion that the jury should necessarily have entertained a doubt about the appellant's guilt.[3]
[1](1994) 181 CLR 487, 493–5.
[2](2007) 230 CLR 559.
[3]Ibid 596–7 (citation omitted).
The Crown submitted that, in the present case, the issue was quite confined. The complainant alleged that she had been sexually penetrated without her consent. The applicant agreed with some of the background matters outlined in her evidence. He denied having achieved penetration, however, and also denied having done anything that was not wholly consensual. He claimed that she agreed to have sex with him as a means of paying off the money that she owed him for drugs.
Conclusion
It is important to bear in mind in a case of this nature that the jury had the clear advantage, which this Court does not have, of having seen and heard both the complainant and the applicant give evidence. Plainly, there was a conflict in that evidence, which is classically a matter for the jury to resolve.
There is no ground of appeal which challenges the manner in which the trial judge conducted the trial, or directed the jury. Nor, in our view, could there be. This was a clear and comprehensive set of instructions to the jury as to how to deal with all the factors bearing on their assessment of matters of credibility. His Honour instructed the jury appropriately as to the onus and standard of proof. He pointed out, correctly, that it was not a question of who they believed and, more particularly, that it was not necessary to accept the applicant as a truthful witness in order to find him not guilty. The jury were told that before they could convict the applicant, they would have to accept the complainant’s evidence, and they would have to be satisfied beyond reasonable doubt that she was an honest, accurate and reliable witness as to the essential aspects of the case. They were given appropriate guidance as to how to go about the task of assessing the credibility of each witness.
As the Crown correctly submitted, the charge contained an adequate summary of the evidence, the issues, and the respective parties’ submissions. No exceptions were taken to the charge.
In these circumstances, and particularly where the applicant himself gave evidence, the task of persuading this Court that it was not open to the jury to be satisfied of guilt beyond reasonable doubt, and that they ‘must’, as distinct from ‘might’, have entertained such a doubt, is not an easy one.
For our part, we are not so persuaded. In our view, it was properly open to the jury, on the whole of the evidence, to have been satisfied beyond reasonable doubt as to each of the elements of the offence of rape.
Regrettably, it is by no means uncommon for there to be a significant delay in reporting an allegation of rape in cases of this kind. The applicant and the complainant were known to each other, and had an ongoing user/supplier drug relationship. There is nothing particularly odd about her having decided not to report the matter to anyone until she found herself under what she perceived as irresistible pressure to do so. The jury were adequately directed as to the way in which they should deal with the matter of delay. The complainant’s explanation for the delay was, in our view, reasonably capable of being accepted.
Likewise, there is nothing at all surprising about minor discrepancies between earlier accounts and later accounts of what occurred, particularly when there has been a significant lapse of time between the event and the trial. In addition, in relation to a number of the matters now relied on as inconsistencies, or as being inherently implausible, it is significant that these were not raised in cross-examination.
The inconsistencies, such as they were, did not in our view require the jury to conclude that the complainant had given false evidence about the incident. There was nothing inherently improbable about her account. What we have, in this application, is little more than a repetition of a series of arguments – some of which might be thought to have merit, others less so – that were advanced before the jury. Neither in isolation, nor in aggregate, were these points of such significance as to warrant intervention by this Court. In short, we do not ourselves entertain a doubt as to the applicant’s guilt. It follows that we would refuse this application.
MAXWELL P:
The order of the Court is application for leave to appeal against conviction refused.
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