BDS v The State of Western Australia - [2009] WASCA 215

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: BDS -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 215

CORAM: McLURE P
WHEELER JA
BUSS JA

HEARD: 10 NOVEMBER 2009

DELIVERED : 4 DECEMBER 2009

FILE NO/S: CACR 132 of 2009

BETWEEN: BDS
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :STEVENSON DCJ
File No  :IND KAL 71 of 2008

Catchwords:

Criminal law - Appeal against conviction - Multiple counts of sexual offences - Inconsistent verdicts - Turns on own facts

Legislation:

Nil

Result:

Leave to appeal refused

Category: B

Representation:

Counsel:

Appellant: Ms C A McKenzie
Respondent: Mr G J Huggins

Solicitors:

Appellant: McKenzie & McKenzie
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

MacKenzie v The Queen (1996) 190 CLR 348
MFA v The Queen (2002) 213 CLR 606
Phillips v The Queen (2006) 225 CLR 303
Riley v The State of Western Australia [2007] WASCA 22

McLURE P: This is an application for leave to appeal against conviction. The appellant was charged with two counts of sexual penetration (digital) of the complainant (counts 1 and 4) and two counts of unlawfully and indecently assaulting the complainant by licking her anus (count 2) and licking her breasts (count 3).
The jury returned a verdict of guilty to count 1 and not guilty to counts 2, 3 and 4. The sole ground of appeal is that the guilty verdict on count 1 is unsafe and unsatisfactory because it is inconsistent with the verdicts on the remaining counts.
The complainant's mother and her mother's de facto partner, the appellant, owned a country hotel. The complainant, who was aged 31 at the time of the offence, referred to the appellant as her stepfather. The complainant and her two young children were visiting from their home elsewhere in Western Australia and stayed at the hotel. The complainant's birthday was the day before their arrival on 9 January 2008. To accommodate the complainant and her children, the complainant's mother and the appellant vacated their living quarters (room 2) which included two bedrooms, a living area with an inflatable mattress on the floor, a kitchen and a bathroom. Doors opened from the living quarters onto the balcony veranda.
During the afternoon and evening of 14 January 2008 the complainant and the appellant both consumed a significant amount of alcohol. By the time the complainant retired to her room, she accepted she was drunk but not to the point of staggering.
When skimpies started working at the hotel at about 4.30 pm, the complainant's mother took the complainant's children upstairs to room 2. The appellant's nephew Paul and his family arrived at around dinner time and joined the complainant and the appellant who were drinking at the bar. Pizza was ordered but it had not arrived by 9.30 pm so the complainant went upstairs to room 2.
The complainant gave evidence that she lay down on the inflatable mattress in the living area and fell asleep. When she awoke later, she was on the left‑hand side of the bed in the bedroom, lying on her back. The complainant was wearing a scoop neck top and a bra. She woke up, feeling pain and fingers in her vagina. The appellant was kissing and slobbering on her left cheek and mumbling 'do you like that Flannel?' while driving his fingers in and out of her vagina. Flannel was a childhood nickname used by the appellant and her mother.
When asked what happened next, the complainant said first the appellant was kissing and licking her breasts and then he rolled her onto her side where he spread her bum cheeks and licked her anus.
The complainant was then asked 'What's the next thing that has happened?' and she responded 'The fingers were in my vagina' (ts 57). The examination‑in‑chief continued:
Is that the same time you've talked about earlier, or is this another occasion?---No, it's the same time.
Yes?---It just continued to happen, and then all of a sudden it stopped (ts 58).
She was then asked about the order in which things happened and said:
I woke up. He was the left cheek. Fingers went in my vagina. My breasts were being fondled. My bottom was being fondled. Fingers were back in my vagina. My breasts were being fondled again. Kissing on my cheeks (ts 58).
She was then asked what she meant by 'went back' and explained that the digital penetration stopped while the appellant was rolling her back and forth and then started again.
The complainant stated she was frozen and could not move for a time after the appellant had left the room. She then checked on her children who were in the bed with her, put on her knickers and shorts and went out to the main room. She began calling for her mother and continued until her mother came up the stairs. The complainant told her mother words to the effect that she had been, or thought she had been, raped by the appellant.
The complainant and her mother went looking for the appellant, finding him sitting on the balcony. The complainant's mother confronted the appellant about the allegation, which he denied. The complainant began punching the appellant. The unchallenged evidence of the complainant was that the appellant 'just sat there and let me punch him' (ts 60). The police were then called.
The complainant gave evidence that both her children suffered from bed‑wetting problems.
The complainant was cross‑examined on a number of inconsistencies in her statement to police, on why she did not protest or jump out of bed when she awoke to find the appellant sexually assaulting her, and on whether during the course of the afternoon or evening she was 'pashing on' with a man outside the hotel. She explained that she was having a cigarette with a friend and his mate and permitted the mate to give her a birthday kiss. It was also put to the complainant that she grabbed Paul's trousers and tried to pull them down. The complainant was unable to recall that. The complainant was challenged on her evidence that the children had bed‑wetting problems. However, she was not cross‑examined about the details of the charged offences or the order in which the alleged offences took place.
The complainant's mother gave the following evidence. She remained with the children until the complainant returned to room 2 with the intention of staying. That was about 9.30 pm to 9.40 pm. The complainant passed out on the inflatable mattress waiting for pizza. Her mother then left the room and went down to the bar and saw the appellant and his nephew Paul with their shirts off running around doing 'brown‑eyes'. When the pizzas arrived the complainant's mother went upstairs with pizza for the complainant, woke her and went back downstairs.
After the group downstairs had eaten the pizza, the appellant disappeared. The complainant's mother took Paul and his family to their rooms and then returned to room 2. She saw that the complainant had not eaten her pizza but was now in bed with the children. The complainant's mother went back downstairs to clean the bar. After she had finished, she heard the complainant screaming for her. She confirmed that the complainant's son had a bed‑wetting problem.
The State called a forensic scientist, Mr Ross Hedley. He performed a forensic analysis on a number of items. He tested a sheet from the bed in the bedroom and noted a large yellow stain which gave a positive reaction in a screening test for urine. No attempt was made to try and extract DNA because urine is a fairly poor source of DNA and contains little cellular material. He also tested a blue fitted sheet from the same bed which also had a large yellow stain which gave a positive reaction in a screening test for urine. A blue sheet taken from the inflatable mattress also had a stain that showed up in UV light which gave a positive reaction in a screening test for urine.
Swabs were taken from the appellant's hands. The swabs from the appellant's left middle finger and left index finger gave positive reactions in screening tests for blood. The swabs were also sent for DNA analysis. On the appellant's left little finger a mixture of profiles from two people was recovered. One partial profile matched the profile of the complainant (that is, eight of nine discriminating regions of the DNA matched the complainant's reference sample). The chance of that DNA coming from someone other than and unrelated to the complainant was one in 1.6 billion.
A sample from the appellant's left ring finger gave a partial profile matching that of the complainant. The chance of it coming from someone other than and unrelated to the complainant was one in 7.3 billion. The sample from the appellant's left middle finger came up with a mixed DNA profile from which it was not possible to identify the two contributors but neither the appellant nor the complainant could be excluded.
A sample from the appellant's left thumb showed a mixed DNA profile which could not be separated. Statistical analysis showed that it was 4.2 billion times more likely that it came from the appellant and the complainant rather than the appellant and another person.
Intimate samples were also taken from the complainant. No semen was found. Low vaginal, anal and labial swabs tested positive for human saliva. Male DNA was not recovered from the low vaginal and labial swabs. A mixed DNA profile was recovered from the anal swab. The major contributor was the complainant and all that could be concluded about the minor contributor was that it came from a male.
Although there is a greater chance of recovering DNA from somebody else if there has been prolonged or forceful contact, it is unlikely that punching would leave a good DNA deposit.
A police witness, Detective Senior Constable Mills, gave evidence that he went to the hotel at 8.20 am on 15 January 2008 and noted that the sheet on the inflatable mattress was not wet.
The appellant did not give evidence at trial but relied upon his video record of interview with police which took place on 15 January 2008. The appellant's case was that the complainant had wet herself on the inflatable mattress, so he woke her up and assisted her to the double bed where the children were sleeping. The appellant denied the offences, stating he did give the complainant a kiss when he told her to get up, although he gave different accounts as to where he kissed her. When asked whether there was any reason that there would be DNA from the complainant on his fingers he said 'Well, it shouldn't be, no'.
The appellant's case at trial was primarily that the complainant was not a reliable witness due to the level of her intoxication at the time of the alleged offences.
After the jury had retired to consider their verdict, they asked a number of questions. The first series of questions related to where the DNA had been located, in particular whether it was on the appellant's hand, fingers, under his fingernails or under the ring on his hand. They also sought confirmation of whether or not the appellant's DNA was located inside the complainant's vagina.
Later the jury asked 'whether or not if they make a finding in respect of one count that means they must make a similar finding in respect of a subsequent count on the indictment' (ts 328). The trial judge informed counsel that he proposed to answer that question in the negative. Neither counsel objected to that course or to the direction he gave which was in the following terms:
In the course of my remarks this morning I did indicate to you how you should approach the fact that there are four charges on the indictment, and the position is that you must consider each one of those separate counts separately, having regard to all of the evidence, and you must form a view as to whether or not you are satisfied beyond reasonable doubt whether that particular count has been proved to your satisfaction before you could convict or bring in a verdict of guilty.
It follows that you may find the accused guilty on one count or not guilty on one count and guilty or not guilty on another count, so you need to consider the evidence as a whole in respect to each of the counts separately and it does not matter what view you reach in respect of any one of the other counts. You must decide each count separately, and it does not matter even if in your view one comes in time after the other. That does not matter. You must still be satisfied beyond reasonable doubt on the evidence that you've considered that that particular count has been proved by the state beyond reasonable doubt before you could bring in a verdict of guilty.
In respect of the counts to which you have referred you may not be satisfied, for example, that there were two occasions in which the alleged offending behaviour may have taken place but you need to consider the evidence as a whole and approach each count separately in the way that I've indicated to you, so I hope that does assist you in your deliberations (ts 328).

Principles relating to inconsistent verdicts

A detailed survey of the relevant High Court authorities on inconsistent verdicts was undertaken by Buss JA in Riley v The State of Western Australia [2007] WASCA 22 [16] ‑ [25]. Against that background, it is sufficient for present purposes to note the following. First, the appellant has to satisfy the court that the verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their minds properly to the facts in the case could have arrived at the conclusion: MacKenzie v The Queen (1996) 190 CLR 348, 366. Secondly, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, the verdicts will not be inconsistent in the relevant sense: MacKenzie (367). Thirdly, where multiple offences are alleged involving one complainant, verdicts of not guilty on some counts do not necessarily reflect a view that the complainant was untruthful or unreliable or a want of confidence in the complainant. A verdict of not guilty may reflect a cautious approach by the jury to the discharge of a heavy responsibility. For example, supporting evidence may be sought or the complainant may have shown some uncertainty as to matters of detail or been shown to have a faulty recollection on some matters but not others. The significance of a verdict of not guilty must be considered in light of the facts and circumstances of each case. Further, verdicts might be explicable on the basis that one or more of them is merciful or that they accord with the jurors' innate sense of fairness and justice: MacKenzie (367); MFA v The Queen (2002) 213 CLR 606 [34]; Phillips v The Queen (2006) 225 CLR 303 [71].

Analysis

There is no difficulty in reconciling the guilty verdict on count 1 and the not guilty verdict on count 4, both of which alleged digital penetration. First, there was a level of inconsistency in the complainant's evidence on whether there were two separate courses of conduct or just one. Secondly, the complainant was admittedly intoxicated which might be seen to reflect on her judgment and recollection as to whether there were two separate incidents or one continuing course of conduct. Thirdly, the jury would be entitled to infer the judge was referring to counts 1 and 4 when answering their question on whether a verdict on one count required a similar verdict on subsequent counts. The trial judge gave as an example that they may not be satisfied that there were two occasions in which the alleged offending may have taken place.

The verdicts on counts 1 and 2 can also properly be reconciled. The finding of a DNA profile matching the complainant on the appellant's left fingers directly linked the appellant to count 1. The finding of saliva on the complainant's anus was not a direct link to the appellant. There was insufficient material to yield a conclusion about whether the appellant was a contributor to the male DNA. Further, when the complainant was summarising the offences, she did not refer to the facts of count 2 but instead said her bottom had been fondled. Finally, the cross‑examination of the complainant raised what may be perceived as her flirtatious behaviour with other men during the afternoon and evening in question.
As to count 3, there was no evidence corroborating or supporting the complainant's evidence. Further, as she was wearing a bra and top there may have been uncertainty as to the area that was licked which may go to the question of indecency which the jury had to consider. Moreover, the complainant twice referred to her breasts being 'fondled' rather than licked.
As was correctly conceded by the appellant's counsel, there was sufficient evidence on which to convict the appellant on all counts. On any view, the jury took a cautious approach to their task, seeking in effect supporting evidence that directly implicated the appellant in the offences. However, having regard to all the facts and circumstances, it cannot be said that the verdicts are inconsistent in the relevant sense.
I would refuse leave to appeal.
WHEELER JA: I agree with McLure P.
BUSS JA: I agree with McLure P.