Bullmore v The Queen

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2016 0146

DAVID NIGEL BULLMORE	Applicant
V
THE QUEEN	Respondent

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JUDGES:	WARREN CJ, PRIEST JA and KIDD AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 February 2017
DATE OF JUDGMENT:	8 March 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 41
JUDGMENT APPEALED FROM:	DPP v Bullmore (Unreported, County Court of Victoria, Judge Mason, 8 April 2016 (Conviction))

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CRIMINAL LAW – Application for leave to appeal – Conviction – Rape – Whether verdict unsafe and unsatisfactory – Inconsistencies in complainant’s account of the offending – Inconsistencies in complainant’s account of peripheral matters – Deficiencies and delay in evidence of complaint – Where oath-on-oath case – Where evidence given of text messages that were not themselves produced – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr A Palmer with Ms M Casey	Victoria Legal Aid
For the Crown	Ms D Piekusis	Mr J Cain, Solicitor for Public Prosecutions

WARREN CJ
PRIEST JA
KIDD AJA:

Introduction

On 8 April 2016, the applicant (born 17 April 1959 and now aged 57), was convicted of the single charge of rape under the Crimes Act 1958 following a brief trial in the County Court. Following a plea on 27 May 2016, the applicant was sentenced on 5 July 2016 to a term of imprisonment of 3 years, with a non-parole period of 2 years.

The applicant appeals against his conviction. He initially advanced two grounds of appeal:

Ground 1 – The verdict is unsafe or unsatisfactory in that it is unreasonable or incapable of being supported having regard to the evidence.

Ground 2 – There has been a substantial miscarriage of justice in that the trial judge erred in his treatment of the text messages.

At the oral hearing of the matter the applicant abandoned Ground 2. Accordingly, there remains only the unsafe and unsatisfactory ground to deal with.
The evidence of the complainant at trial
The complainant and her husband were involved with Amway, a business that distributes products, in the early 2000s. The applicant introduced them to the Amway business and held a mentor position in the business structure. Later, the complainant ceased her involvement with Amway (mainly because of the breakdown in her marriage) and therefore ceased seeing the applicant (with whom contact up until then had been quite regular). Around two years after the separation from her then husband, the complainant was contacted by the applicant who said he would like to catch up, and she accepted.
On the night in question, the applicant arrived, with a bottle of Jim Beam, at the complainant’s house just before dinner. He sat together with the complainant and her three children talking. The complainant consumed ‘probably four drinks’ of Jim Beam and Coke but tipped out other drinks when the applicant was not looking. The applicant was drinking a lot. At one point the applicant drove to a bottle shop with the complainant’s daughters and purchased more alcohol. The children eventually went to bed.
After some time, the complainant said she was tired and was going to bed. When the applicant said he would drive home, the complainant said he had had too much to drink and offered that he sleep on the couch. He accepted the offer.
The complainant went to bed at approximately 11:30 pm. The complainant locked the main bedroom door; but the door connecting to the bathroom could not be locked and her bedroom could be accessed via this door.
The complainant woke to find the applicant on top of her while she was lying on her back. He was wearing nothing. The doona was off. The light was off. The applicant was kissing her lips, neck and breasts. The complainant tried to push him off but could not as she felt pinned down. The complainant could not remember if the applicant was sitting or lying on her but either way he was on top of her. He was naked and facing her. She did not say anything (at least initially) because she did not want to wake her children. She did not want them to come in and see what was happening. The complainant told him to get off but the applicant said it was ok as he had an open marriage. The applicant reached around behind himself with one of his hands then put his fingers inside her vagina. After ten minutes the applicant withdrew his fingers.
The complainant told him to get out. The applicant stated he was still drunk. The complainant told him she did not care and that he could sleep in the car. The complainant walked to the front door and the applicant followed. The applicant left through the front door. The complainant heard the applicant drive away. It was approximately 2.00 to 2:30 am. He drove away in his car.
The complainant further gave evidence that the next day the applicant texted her in the morning saying, ‘How dare you let me drive home. I got pulled up for drink driving and I've lost my licence’. The complainant said she replied, ‘How dare you do what you've done to me’ and that she would tell applicant’s wife what he had done. She did not subsequently tell the applicant’s wife about what had happened. She gave evidence that she had tried to find the text messages in her old phone but could not locate them.
Approximately four days later, the complainant told her ex-husband (witness WD) that the applicant had ‘sexually assaulted’ her but did not provide any further details.[1]
[1]The complaint evidence is referred to in greater detail below.
She said she did not go to the police because she is the kind of person who kept everything inside and she did not want her children to find out what happened.
The complainant said that around a month prior to reporting the matter to police, she told a friend, Mr Peter Jensen about the incident. She said she had been raped by the applicant. The complainant told Jensen that she thought it was too late to take it further or do anything about it. Jensen advised her it was not too late and she could do something about it.
The complainant was cross-examined in relation to a number of prior inconsistent statements concerning the actual offending.[2]
[2]We shall summarise this evidence below when we come to deal with the applicant’s arguments.
In cross-examination the complainant denied that she was flirting with the applicant. She also denied that nothing happened between her and the applicant.
Other prosecution evidence at trial
Witness WD (the complainant’s ex-husband) gave evidence that the complainant said the applicant had visited her at home. According to the complainant’s account, the applicant had too much to drink and he slept on the couch; during the night he entered the bedroom and made advances or tried something; the complainant told the applicant to get out; and when the complainant woke in the morning the applicant was gone. The complainant did not go into too much detail. The complainant did not mention the words ‘sexual assault’. He said he was alarmed at what she said. He pushed it to the side.
Peter Jensen gave evidence that in 2012 or 2013 the complainant told him about an incident with the applicant. She did not use the words ‘sexual assault’ or rape. He was left with an impression that something had made her feel uncomfortable. He advised the complainant there was no statute of limitations regarding reporting a complaint to police. She indicated to him she wanted to report it.
The informant, Detective Senior Leading Constable Bronwyn Langford, gave evidence that at around 2:12 am of the morning of 8 April 2008, the applicant was intercepted by police at the corner of Glasgow Road and Liverpool Road in Kilsyth, found to be over the 0.05 blood alcohol limit, and was issued with an infringement notice. He indicated to police he was travelling home. At the point of intercept was about 11 minutes’ drive away from the complainant’s residence.
The applicant had not been charged with any sexual offences prior to or after the conduct the subject of the trial. He agreed that there was no forensic, medical or crime scene evidence in this case.

The defence evidence at trial

The applicant gave evidence.
After the complainant and her husband withdrew from Amway, he did not have much contact with them; but upon learning of the separation, he called WD to offer his condolences and apologise for not having been there for him. A short time later, when he was in the area of the residence of the complainant, he called the complainant to say he would like to talk about her relationship with WD and to visit; and they agreed he could visit that evening.
He arrived at approximately 8:00 pm with a bottle of bourbon. After finishing the bottle the applicant had brought with him, he drove to a bottle shop with the complainant’s daughters and purchased more alcohol. The applicant could not recall how much he had had to drink.
He said when the complainant’s daughters went to bed he wanted to talk to the complainant about issues regarding the relationship and whether there were opportunities for reconciliation. He determined there was not. The complainant was saying things about her lifestyle which made him feel uncomfortable. He therefore changed the topic of conversation. The complainant then became rather flirtatious. This also made him feel uncomfortable so he said it was time to go. The complainant said he should stay and he eventually agreed to stay. The complainant went to bed. He left after a few hours.
He was then intercepted by police and was found to be over the legal limit.
The applicant did text the complainant the following morning stating he had been pulled over by police and booked for drink driving. The purpose of the text was for the complainant to reflect upon her behaviour. He did not receive any text messages from the complainant.

Legal principles

The principles involved are well settled. For the applicant to succeed on the ground that a verdict is unsafe and unsatisfactory, he must show that upon the whole of the evidence it was not open to a reasonable jury to be satisfied beyond reasonable doubt of his guilt.[3] In assessing whether it was open to the jury to be satisfied of guilt, the court is required to carry out its own independent assessment of the evidence. Furthermore, the real question is whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt.[4]
[3]M v The Queen (1994) 181 CLR 487, 493–5 (Mason CJ, Deane, Dawson and Toohey JJ).
[4]Ibid; Libke v The Queen (2007) 230 CLR 559, 596–7 [113] (Hayne J); Klamo v The Queen (2008) 18 VR 644, 653–4 [38]–[40] (Maxwell P).
In applying that test, the court must bear in mind that the jury is the primary trier of fact and has the advantage of seeing and hearing the witnesses give their evidence. As was said in M v The Queen,[5] ‘the court must pay full regard to those considerations’. However, where the Court of Appeal entertains a doubt about the guilt of the accused, the Court may only conclude that no miscarriage of justice has occurred where the jury’s advantage, in seeing and hearing the evidence, is capable of resolving that doubt.[6]
[5]M v The Queen (1994) 181 CLR 487, 494–5 (Mason CJ, Deane, Dawson and Toohey JJ); Nguyen v The Queen (2010) 242 CLR 491, 500 [33].
[6]Klamo v The Queen (2008) 18 VR 644, 653–4 [38]–[40] (Maxwell P).
It is apparent that the applicant must satisfy a high threshold in order to make out this ground.

Analysis

There appear to be five categories of weaknesses which are said to attend the verdict:
i.Internal inconsistences in the complainant’s evidence in relation to the rape itself;
ii.Deficiencies and delay in the complaint evidence;
iii.Inconsistencies in the complainant’s evidence on peripheral matters;
iv.The absence of supporting forensic, medical or crime scene evidence, making it an oath-on-oath case; and
v.The complainant’s failure to produce the text messages.
It is convenient to deal with each of them in this order.
Internal inconsistencies in the complainant’s evidence in relation to rape itself
First, it was said that there were significant ‘unsatisfactory aspects’ of the complainant’s evidence concerning the actual offending. Specifically, the applicant’s principal criticisms are:

· The complainant gave evidence at trial that the applicant was sitting on top of her. In cross-examination she accepted she said at the committal hearing that the applicant was lying on top of her. When pressed on which of her versions was correct, the complainant said, ‘I don’t remember’;

· Initially the complainant said at trial that the applicant had been sitting on her chest at the time of penetration. When asked to clarify this she placed the applicant as sitting on her stomach;

· She initially said at trial that her shoulders were held down by the applicant’s hands but later said they were held down by his legs; she also placed the applicant’s knees were beside her.

· She said at trial that the doona was not on her when she woke to find the applicant on top of her, but accepted she had indicated in her police statement that the doona was still on her when she awoke. She said that the police statement was ‘false’.[7]

[7]We take her to mean by this that it was ‘not correct’ – it was never suggested that she was admitting this to be a lie.

For a number of reasons we have concluded that none of these inconsistences, whether taken individually or in combination, compelled the jury to acquit.
While it may be accepted that the inconsistences or discrepancies were all matters proper for argument before the jury, all the forensic points were well and fully exposed for the jury through cross-examination and full argument. Perhaps the high water mark of the cross-examination was when the complainant made the concession that the first time she had mentioned that the applicant was sitting on her rather than lying on her (while he was penetrating her) was when giving evidence before the jury in this trial. Even though this may have caused a jury to pause, it could not be characterised as such a fundamental inconsistency as to irretrievably damage her credibility or reliability.
Importantly, the complainant’s accounts were internally consistent and coherent in relation to the core aspects of the rape, namely:

· She went to bed, locked her bedroom door and fell asleep;

· She awoke to find the applicant on top of her, while she was lying on her back;

· The applicant had entered her bedroom, uninvited;

· The applicant was facing her, whilst on top of her;

· The applicant was naked;

· The applicant reached around behind himself with one of his hands and digitally penetrated her;

· Throughout the assault she was physically pinned down by the applicant;

· As a consequence of being pinned down she was unable to push him off, despite trying to do so; and

· The assault lasted ten minutes.

A reading of the complainant’s evidence reveals that these were the matters the complainant focused upon during the attack. As much emerges from the following exchanges:
What was he doing with his fingers?---They were in my vagina.
For how long?---About 10 minutes.
And what did you do during that 10 minutes?---I, I couldn't do anything. I couldn't get him off me, I couldn't budge, I couldn't do anything. I was just telling him to get off and get out.
[Evidence in chief]
…
[I]s it the case that really when you come to court hand on your heart you don't fully remember what happened that evening?---I fully remember what happened that evening but to go into detail I’m trying to block out of my brain. So far as the way he was – I – I remember his hands penetrating but I can’t remember the way he was – if he was sitting or laying …
[Cross-examination]
…
Yes and you recall some questions being asked of you about whether it was laying or sitting. Did the position remain the same throughout the ten minutes or so?---Yes.
Yes. And what can you recall about that position? Is there a better description than laying or sitting? Or how would you describe it?---On top of me.
[Re-examination]
In our opinion, it is unsurprising that the complainant’s attention was concentrated upon these factors rather than upon the more peripheral matters such as whether he was sitting on her chest or stomach, or whether he was sitting or lying.
There are also specific factors which help explain why some aspects of the complainant’s recollection of these peripheral matters were vague and inconsistent: she had had four drinks of alcohol (Jim Beam and Coke) prior to going to bed; she was asleep immediately before the incident;[8] the light in her bedroom was not on during the incident; and significantly she was in the midst of dealing with the trauma of being sexually assaulted while being physically overwhelmed. When asked how she felt when she was woken to find the applicant on top of her, she answered, ‘I was shocked, I, I didn't know what was happening’. She was also preoccupied with a concern that her children might be woken, walk in and see what was happening. This whole episode was unexpected, disorientating and distressing. The jury might well have reasoned that it is to be expected that someone in the position of the complainant would have an imperfect and clouded recall of a number of secondary details.
[8]The complainant gave evidence that went to bed at about 11.30 pm and the assault took place in the early hours of the morning.
The fact that the assault lasted, on the complainant’s account, for about ten minutes, does not compel a different conclusion, as the applicant tried to contend. On any view this was not a lengthy period. In our opinion, the factors which are likely to have impacted upon the complainant’s capacity and inclination to observe (and thus accurately and consistently recall) the peripheral details would have subsisted, to one degree or another, throughout the assault.
Further, the first time that the complainant gave a detailed account of the alleged assault was when she provided a statement to police some five years after the events were said to have occurred. As the respondent’s counsel argued in the respondent’s written case, the effluxion of time affords an additional explanation for some imperfections in the complainant’s accounts.
We are also of the opinion that there is also nothing inherently implausible in any aspect of the complainant’s account.
Deficiencies and delay in the complaint evidence
Second, the applicant contends there were inconsistencies, discrepancies and conflicts involving the complainant’s evidence in relation to the complaints she made to WD and Peter Jensen.
The applicant says that the complainant’s evidence conflicts with that of WD. According to the complainant, she told WD that she had been sexually assaulted or raped. WD gave evidence that the complainant reported that the applicant had ‘made advances or tried something’. It was not WD’s understanding that a crime had been committed. The applicant says therefore that the purported complaint made to WD was not really a complaint at all. At most, it is a complaint ‘of sorts’.
In our view, even accepting WD’s version, there is no conflict, let alone one without explanation.
The tenor of the complaint, even accepting WD’s version, was that the applicant’s conduct involved sexual misbehaviour: the intoxicated applicant had entered the complainant’s bedroom, uninvited, in the dead of the night while the complainant slept in her bed, and ‘tried something’. This ended with the applicant being ejected by a distressed complainant.
In our opinion, a report of sexually charged, unwelcome and disquieting conduct of the kind described is not inconsistent with the complainant’s version of events presented to the jury; rather it represents an abbreviated and sanitised form of that version. The complainant never purported to give to WD a full account of what had occurred. She said that she did not descend into any detail. WD supported her in this respect – he said ‘she didn’t go into too much detail’, ‘she cut it short’ and ‘she didn’t sort of look for my response.’ An explanation was also placed before the jury as to why the complainant provided an expurgated version of what occurred — the complainant said she was concerned WD might become angry with the applicant.

Even if the contents of the complaint were to be read literally, there is still no inconsistency. The complainant did not explain to WD what she meant when she said the applicant had tried something. Rape by digital penetration was of course a complete crime. But viewing this event more broadly, and from the perspective of a lay person in the complainant’s position, the applicant’s conduct might also be seen as an unsuccessful attempt to engage in more extensive and prolonged sexual activity. In that sense he tried something and was ejected from the bedroom after a relatively short period of time.
As for WD’s evidence that it was not his understanding from the conversation that a crime had been committed, it seems to us this is explicable once it is accepted that the complainant was providing an abridged version of events. The statement is also significantly qualified by WD’s evidence that he was ‘alarmed’ by the complaint: plainly enough, the magnitude of the allegation was conveyed by the complainant to WD.
In our opinion, even if the jury acted upon WD’s version of the discussion, in assessing the credibility of the complainant the jury was entitled to rely upon this partial complaint — it was capable of bolstering, to some degree, the believability of her version of events. At the very least, the jury was entitled to reason that the abbreviated nature of the complaint did not undermine her credibility.
The applicant also relies upon an asserted conflict between the evidence of the complainant and the evidence of Peter Jensen. The complainant says she reported to Jensen that she was raped or sexually assaulted by the applicant whereas Jensen said she did not say this; rather she gave him the impression that ‘something had made her feel uncomfortable’. In our view, there is no material conflict. On both their accounts, the complaint to Jensen was about an incident involving the complainant and the applicant whereby the applicant did something which was sufficiently grave in nature for Jensen to urge the complainant to report the matter to the police. Whatever words were used, it was obviously apparent to Jensen that the misconduct which the complainant was attributing to the applicant involved an allegation of criminal behaviour. We would say that it was plainly open to the jury to reason that there was an underlying consistency in their two respective versions of this discussion, and that her complaint — as Jensen understood it — was a consistent but truncated form of the complainant’s version of events which she had detailed to the jury.
The applicant submits there was a significant delay in a complaint being made to police for which ‘there was no adequate explanation’. We do not agree with the proposition that there was no explanation capable of being viewed by the jury as reasonable. The complainant said she did not make an immediate complaint to police in 2008 after speaking to WD as she wanted to protect her children. She had also given evidence that when she was awoken to find herself being sexually assaulted she did not (initially) say anything ‘cause my kids were asleep in the room, I can't wake up. I didn't want them to come in and see what was going on.’ In our view, this made the explanation that she did not report the matter to police so as to protect her children all the more cogent. She also gave evidence that she later wanted to report the matter to the police but thought it was too late. The evidence of Jensen lent some support to the complainant in this respect.
Inconsistencies in the complainant’s evidence on peripheral matters
Third, there were, according to the applicant (in his written case) inconsistencies in the evidence of the complainant regarding ‘peripheral’ matters (a term used by the applicant), such as whether or not she had the applicant’s phone number in her mobile phone when the applicant initially telephoned, what type of car the applicant was driving, and whether she saw headlights when the car drove off or whether she merely heard it leave.
The applicant readily accepts these matters to be ‘peripheral’ to the events in question. The points were barely pressed at the oral hearing.
The respondent contended that any inconsistencies in relation to the ‘peripheral’ matters could not render the verdict unsafe and unsatisfactory. It is, the respondent argued, unremarkable for witnesses to be imprecise about insignificant matters and none of these matters ought to have had a material bearing on assessing her reliability. In general, we would agree. It seems to us that the real point is that the key to the applicant’s unsafe and unsatisfactory argument is to be found in the asserted inconsistencies and discrepancies in the complainant’s description of the rape, and to a lesser degree in the criticisms of the complaint evidence. So much was accepted by the applicant on the appeal. If these matters are not suggestive of the verdict being unsafe and unsatisfactory (and we are of the view they are not), it is difficult to see how the applicant will be assisted by the less significant peripheral inconsistencies. In the circumstances, the peripheral inconsistencies require no further consideration.
Absence of supporting evidence making it an oath-on-oath case
Fourth, the applicant contends that the unsatisfactory aspects to the complainant’s evidence are of greater significance within the context of a case which was word-against-word (there being no medical, forensic or crime scene evidence to support the complainant’s account). The applicant, who received a prior sexual good character direction, had given sworn evidence denying the offence.
In a word-against-word or oath-on-oath case, like this one, the credibility and reliability of the applicant’s evidence (and indeed the complainant’s evidence) were for the jury to assess. Such matters are quintessentially within the province of the jury.
The applicant advanced a version of events which was, in certain critical aspects, diametrically opposed to that advanced by the complainant, namely he departed from the complainant’s house voluntarily as a result of becoming uncomfortable at the complainant’s flirtatious behavior
In the respondent’s written case, the respondent identified a number of deficiencies and weaknesses said to attend the applicant’s evidence. We highlight three of the points made by the respondent:
·      The applicant became emotional when giving evidence in chief about the complainant’s separation from her husband as he felt responsible to them as a couple. Yet he had had no contact with them since they had left Amway (over two years earlier) and no contact with them since this incident. The trial prosecutor argued this was an example of the applicant ‘acting’ before the jury, which reflected poorly on his general credibility;
·      The applicant’s version of events was that he departed from the complainant’s house because he was uncomfortable with what he described as flirtatious behaviour by the complainant. He decided to leave the complainant’s property despite having too much to drink (which carried the risk of being apprehended for drink driving). Yet, on his own version of events, at the time the applicant left, the complainant was asleep in her locked bedroom and had been for some time. The trial prosecutor argued there was no reason for the applicant to feel uncomfortable at that time, and no reason for him to leave and take the risk of being apprehended for drink driving. This called into question the credibility of the applicant’s version of events;
·      The applicant was cross-examined as to why he saw the need to send the text to the complainant the following morning advising her that he had been intercepted by police for drink driving given that, on his version of events, he departed from the house because he wanted nothing to do with the flirtatious complainant. His explanation – that he just wanted her to ‘reflect on her behaviour’ – was said by the trial prosecutor to not make sense. The sending of the text, without a satisfactory explanation, undermined the cogency of his version of events.
It suffices to say that we are of the opinion that it was at least open to the jury to accept these adverse assessments of the applicant’s evidence. Having assessed the entirety of his evidence ourselves, it was open to them to reject his version of events. His sworn evidence certainly did not compel a verdict of acquittal.
The applicant’s counsel submitted that even if we were of the opinion that it was open to the jury to reject the applicant’s evidence this cannot cure the deficiencies said to attend the complainant’s evidence. True enough. But the jury was directed that even if they were convinced that the applicant’s evidence was not true, they had to then put his evidence to one side and ask themselves whether the prosecution had proved the applicant's guilt beyond reasonable doubt — a case that was based upon the complainant’s account. The jury must be taken to have rejected the applicant’s version of events, and accepted, beyond reasonable doubt, the version of events given by the complainant against the applicant. In our opinion, it was well open for them to do so.
The complainant’s failure to produce the text messages
While the applicant abandoned ground 2 (which involved the contention that the trial judge erred in his treatment of the text messages), he still sought to rely upon the complainant’s failure to produce the actual texts as being one of the factors which contributed to making the verdict unsafe and unsatisfactory.
In our opinion, there is nothing in the point. The admissibility of the text evidence (ie the complainant’s recounting of their contents) is not challenged. Trial counsel raised, through cross-examination and argument before the jury, all the relevant forensic points which were open to be made because of the complainant’s failure to produce the actual text messages. The trial judge gave a forensic disadvantage direction in relation to the absence of the text messages. His Honour otherwise carefully and fairly charged the jury on how the text evidence could be put to use. No exception was taken to these directions and no complaint is now made about them on appeal. In the end, what was to be made of the text message evidence was for the jury to assess, having regard to the judge’s instructions. In our opinion, the fact that the jury did not have before them the actual text messages did not contribute to making the verdict an unsafe or unsatisfactory one.

Conclusion

The jury was fully and appropriately instructed by the learned trial judge. The applicant does not suggest otherwise.
Having carried out our own independent assessment of the evidence, we consider that it was well open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt. We do not entertain any such doubt.
For these reasons, the ground that the verdict is unsafe and unsatisfactory must be dismissed.

[2017] VSCA 41

8 March 2017