Calvert v The Queen
[2012] VSCA 191
•23 August 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2011 0258
| KEITH ERIC CALVERT | Appellant |
| V | |
| THE QUEEN | Respondent |
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| JUDGES | WEINBERG and BONGIORNO JJA and T FORREST AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 23 July 2012 |
| DATE OF JUDGMENT | 23 August 2012 |
| MEDIUM NEUTRAL CITATION | [2012] VSCA 191 |
| JUDGMENT APPEALED FROM | DPP v Calvert (Unreported, County Court of Victoria, Judge Tinney, 16 September 2011) |
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CRIMINAL LAW – Appeal against sentence and conviction – Appellant indicted on four charges of rape (charges 2, 3, 4 and 5) and one of indecent assault (charge 1) – Appellant convicted of charges 3 and 4 and acquitted of charges 1, 2 and 5 – Whether verdict of guilty on charges 3 and 4 were inconsistent with verdict of not guilty on charges 1, 2 and 5 – McKenzie v The Queen (1996) 190 CLR 348 – Verdicts on charges 3 and 4 not irreconcilable with verdicts on charges 1, 2 and 5 – Appellant video-recorded behaviour subject of charges 3 and 4 – Crown at trial relied on a file of video footage as depicting charge 2 – On appeal, Crown conceded that video footage did not depict charge 2 – Whether miscarriage of justice occurred – Applicant denied benefit of video at trial – Appeal allowed – Convictions on charges 3 and 4 quashed – New trial ordered on those charges – Not necessary to determine whether sentence manifestly excessive.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr M J Croucher SC with Ms F Todd | Leanne Warren & Associates |
| For the Crown | Ms M M Williams SC | Mr C Hyland, Solicitor For Public Prosecutions |
WEINBERG JA:
I agree with T Forrest AJA.
BONGIORNO JA:
I also agree with T Forrest AJA.
T FORREST AJA:
The appellant was indicted before the County Court on four charges of rape (charges 2, 3, 4 and 5) and one of indecent assault (charge 1). He was convicted on 10 August 2011 of charges 3 and 4 and acquitted of charges 1, 2 and 5. Subsequently he was sentenced on each charge of rape to six years’ imprisonment. The sentencing judge ordered those sentences to be wholly concurrent and fixed a minimum term of three years and six months’ imprisonment.
On 15 March 2012, Maxwell P granted leave to appeal against both conviction and sentence. The grounds upon which the appellant now relies, in support of his appeal against conviction, are as follows:
Conviction
1.The verdicts of guilty on Charges 3 and 4 are unreasonable in that they are inconsistent with the verdicts of not guilty on Charges 1, 2 and 5.
2.The verdicts of guilty on Charges 3 and 4:
(a) are unreasonable or cannot be supported having regard to the evidence given that it was not open to exclude the reasonable possibility that the applicant believed the complainant was consenting in view of the unchallenged evidence that he showed other persons the recordings of the behaviour relied on in support of the Crown case;
(b)give rise to a miscarriage of justice in that the judge failed to
give the jury any direction to the effect that it might be said that a person who showed other persons the recordings must have believed the complainant was consenting to those acts.
3.The verdicts of guilty on Charges 3 and 4 are uncertain and/or a miscarriage of justice has resulted given the following circumstances:
(a)the mobile telephone recording showed at least three separate acts of digital penetration (Exhibit B, Items 9030, 9031 and 9032);
(b)the applicant was acquitted of one alleged act of rape constituted by digital penetration (Charge 2) and found guilty of two others (Charges 3 and 4);
(c)it was not open on the evidence to exclude the possibility that all three recordings depicted events in the upstairs area and the judge failed to direct the jury accordingly;
(d)whilst the prosecutor apparently submitted in his final address that Item 9030 could be the basis for Charge 2 (i.e. the alleged digital penetration downstairs on the couch), there was no formal election to that effect and no direction that that was the only basis on which the case might be considered;
(e)at no point did the judge direct that, before the jury could rely on Item 9030 as showing the behaviour giving rise to Charge 2, they must be satisfied beyond reasonable doubt that the behaviour depicted therein occurred downstairs on the couch, not upstairs; and
(f)at no point did the judge direct that, if the jury were not satisfied beyond reasonable doubt that the behaviour depicted in Item 9030 occurred downstairs, they must treat it as having occurred upstairs and bring that evidence directly into account in considering Charges 3, 4 and 5.
For reasons that will become apparent, it is unnecessary to say anything further regarding the appeal against sentence.
Background to the offending
The appellant and the complainant were among a group of young people who had a night out in Melbourne on 23 January 2009 and into the early hours of the following morning. All were military personnel stationed at HMAS Cerberus at Crib Point. All drank to excess. They concluded the evening by attending at the Brunswick home of Michael Dunlop, a member of the group. There they continued to drink in the downstairs lounge room area of the house.
Downstairs
At some stage the group commenced playing a game of ‘Truth or Dare’. The complainant was dared to remove her dress, which she did, leaving her underwear on. The appellant filmed the complainant with his mobile telephone. She protested and attempted to seize the phone from him. The appellant told her that he had deleted the footage when, in fact, he had not.
Some time later, the complainant went to sleep on a couch in the lounge room. The appellant and three other men remained in that room while she slept. The complainant said she awoke when the appellant put his hand between her legs. She felt rubbing on her vagina through her underwear (charge 1 – verdict – not guilty). The complainant’s evidence was that whilst on the couch in the lounge room the appellant inserted his fingers into her vagina and slid them in and out (charge 2 – verdict – not guilty). She said that after approximately 10 minutes, she left the couch and went upstairs to a bedroom. At trial, the prosecution contended that a file of video footage recorded the conduct that was said to constitute charge 2. The defence contended that this footage in fact depicted activity that occurred upstairs, and immediately preceding the conduct that constituted charges 3, 4 and 5.
Upstairs
The complainant’s evidence was that she had no memory of any activities upstairs, as she was asleep throughout. Charges 3, 4 & 5 were alleged to have occurred upstairs. Footage recorded by the appellant using his mobile telephone shows the complainant lying on her stomach wearing only her underwear, with the appellant fondling and penetrating her vagina with his fingers. The complainant appears motionless and silent during this activity (charge 3 – verdict – guilty). Towards the end of this footage, the appellant filmed himself making a ‘thumbs up’ gesture to the recording device.
The appellant again penetrated the complainant’s vagina in similar fashion. She was, once again, lying face down motionless and silent throughout this activity (charge 4 – verdict – guilty). Again, it was recorded on the appellant’s mobile telephone, though in a separate file.
The final charge was founded upon answers given by the appellant to the police in a record of interview. He told them that after the conduct that constituted charges 3 and 4, he inserted his penis into the complainant’s vagina. She was still lying on her stomach. He said that his penis was inside the complainant for only a short time. She initially pushed back but then kicked his leg. At that point, he realised that she did not want to have sex, and he immediately withdrew (charge 5 – verdict – not guilty).[1] This activity was not video recorded and proof of it came entirely from the appellant’s admissions.
[1]Record of interview, questions 340-414.
In his record of interview the appellant said inter alia:[2]
[2]I have paraphrased these answers.
Downstairs
·He thought it was just feeling with his hands (Q 248)
·She was awake( Q251)
·He did not, at any stage, digitally penetrate her whilst they were in the lounge room (Q264-265)
·He had only rubbed her on the outside (of her underpants) (Q280-286)
·He would never have touched her sexually if he had thought that she did not want him to do so (Q306-307)
·He did not film any of this on his mobile phone (Q291 & Q315)
Upstairs
·They were lying on the sofa and he started ‘feeling her up’ with his hands (Q336-342)
·He videoed that part (Q343)
·She did not say anything (Q348)
·She took off her dress (Q362)
·He was filming her from the front (Q364-369)
·He pulled her underwear to the side (Q372)
·She was awake (Q375)
·He knew that she was awake because she was murmuring and moaning (Q376)
·She was not aware that he was actually filming her (Q359, 381 and 508)
·He penetrated her with his fingers, moving them in and out for a couple of minutes (Q390-391)
·Eventually he decided to penetrate her with his penis and then, at that stage, she kicked him (Q383)
·She was on her stomach (Q394)
·When he got on top of her from behind she initially pressed back against him as he penetrated her (Q402-403)
·After she kicked him, he immediately withdrew (Q405-408)
·There was no talking (Q393)
·He did not think she was asleep (Q404).
This appeal
For reasons that will become apparent it is convenient to consider ground 3 first.
Ground 3
As this ground was developed in argument, the question of miscarriage assumed a greater significance. To explain the argument it is necessary to set out in a little more detail the video evidence, which was Exhibit B:
Video File Number Remarks 9027
9028
Both videos are filmed from under a table in the courtyard area downstairs. Depicts complainant’s underwear. Voices of several people. Durations 9027-28 seconds, 9028-34 seconds. 9029
Complainant standing with dress removed. Complainant sees videoing occurring, attempts to grab phone. Complainant dives under table. Background voices. Duration 13 seconds.
9030
Explicit sexual activity. Complainant in supine position, legs apart. Digital rubbing and penetration of her vagina. No background voices or noise. Audible sounds, described by both counsel as moaning, apparently from complainant. Duration 1 minute 7 seconds.
9031
Explicit sexual activity. Complainant in prone position. Digitally penetrated from above and behind. Complainant motionless and silent. Duration 1 minute 23 seconds. Appellant films himself making thumbs up gestures.
9032
Explicit sexual activity as in 9031. Complainant motionless and silent. Duration 1 minute and 40 seconds.
At trial, the prosecution argued that video 9030 depicted events that occurred on the couch downstairs. Accordingly, it was referable to the period before the complainant went to the upstairs bedroom. In his final address, the prosecutor’s submission regarding video 9030 was, inter alia:
The suggestion is its probably Charge 2[3]
…this question of moaning…my submission to you is that you can hear something on 9030, which is the video downstairs, but when you examine, listen to and examine 9031 and 9032, which relate to charges 3 and 4 that they are absolutely silent. No moaning whatsoever…[4]
…if you decide that 9030, is downstairs, then that’s [the accused’s assertion in his record of interview that there was no penetration downstairs] just an out and out lie…[5]
[3]Transcript of final addresses (‘TFA’) 22. At the hearing of the appeal the Court requested that a copy of final addresses be provided. The parties provided short additional written submissions after receiving same.
[4]TFA 27.
[5]TFA 30.
Counsel who appeared for the appellant at trial argued that the jury ought not accept the prosecutor’s contention that video 9030 depicted events in the lounge room downstairs, but rather what took place upstairs in the bedroom. Counsel invited the jury to conclude that video 9030 was filmed immediately before videos 9031 and 9032. The significance of that was that it contained sounds that were either indicative of consent, or at least sounds that could have led the appellant to form the belief[6] that the complainant was consenting to all of the sexual activity upstairs.
[6]TFA 56.
Thus the jury were left with a question of fact to determine – did video 9030 relate to activity downstairs (and referable to charge 2) as the prosecution contended, or did it relate to activity upstairs as the defence contended? If it related to upstairs activity, the defence relied upon it heavily as going to both the issue of lack of actual consent, or at least the appellant’s awareness that the complainant was not consenting, or might not be consenting.
In the course of argument before this Court, Ms Williams SC, who appeared on behalf of the Crown, expressly conceded that, contrary to the submission put to the jury by the prosecutor at trial, video 9030 related to upstairs activity only. That concession was made after mature reflection and with the benefit of having viewed videos 9030, 9031 and 9032 on a number of occasions. In my view, Ms Williams’ concession was very fairly and properly made. I should perhaps add, in deference to the trial participants, that the portion of 9030 which demonstrates clearly that it was filmed in the same general area as 9031 and 9032 is only fleetingly visible, and then only if the DVD is played on a screen larger than that available with a modest Department of Justice desktop computer.
I consider that a miscarriage of justice has occurred. At trial, the relevant aspect of the prosecution case was predicated on the basis that 9030 depicted activity downstairs, significantly removed in time and place from what was depicted in 9031 and 9032. The issue of where 9030 was filmed was specifically left for the jury to determine. They may well have concluded that issue against the accused, and found that 9030 depicted activity in the lounge room.
If so, the accused was denied the benefit of the evidence of a video which, it would be open to the jury to find, demonstrated seemingly consensual sexual activity at a time and place closely proximate to that depicted in 9031 and 9032. Had the concession now properly made by the Crown been made at trial, and the case presented on a correct factual foundation, there would be certainty that the jury took into account the potentially exculpatory aspects of 9030 when considering charges 3 and 4, based as those charges were on 9031 and 9032. In my view, it cannot safely be assumed that the jury did consider 9030 beyond charge 2, or take into account its potential relevance to charges 3 and 4. That uncertainty relates to evidence that I consider may have been highly relevant to either consent, or belief in consent, in charges 3 and 4.
I should add that it is no answer to this unfortunate state of affairs to argue that the jury, having acquitted the appellant on charge 2, must have used the 9030 footage in his favour when considering 9031 and 9032. The jury may well have determined charge 2 on the basis that they had a reasonable doubt as to lack of consent, or the appellant’s awareness of lack of consent, based entirely upon the substance of the video itself. They may well have determined that 9030 depicted sexual activity that took place downstairs, but were not satisfied that it was non-consensual. If that had been their approach, the appellant would still have been denied the benefit of 9030 in relation to charges 3 and 4 notwithstanding his acquittal on charge 2.
Superimposed on this uncertainty, the prosecutor invited the jury to conclude that the acccused’s assertion that there was no penetration downstairs was ‘an out and out lie’, based on the penetration depicted on 9030 ‘if you decide 9030… is downstairs’. This submission would not have been made if the prosecutor had appreciated that 9030 plainly depicted events that took place upstairs. However, if the jury accepted the prosecutor’s argument that 9030 was taken downstairs, they might also have accepted his argument that the appellant had lied about an important issue, and that this should be used against him. As I have said, I consider that ground 3 has been made out, and that the convictions for rape must be set aside.
Ground 2
There is nothing whatever in this ground. It is a factual argument that could have been made by counsel in his final address to the jury. Sensibly, he refrained from doing so.
Ground 1
A verdict is factually inconsistent with another verdict or verdicts in the trial of a single accused if the verdicts cannot stand together.[7] The appellant must satisfy the court that no reasonable jury, applying their minds properly to the facts in the case, could have arrived at the conclusion that is unequivocally demonstrated by the verdicts.[8] Respect for the role which the law assigns to juries has led courts to repeatedly express a reluctance to accept a submission that verdicts are inconsistent.[9] If there is a proper way by which an appellate court can reconcile the verdicts, that reconciliation will generally be accepted.[10] If there is some evidence to support the verdict(s) said to be inconsistent, it is not the role of the appellate court, on this ground, to substitute its opinion of the facts for one that was open to the jury.[11] The verdicts said to be inconsistent must be an affront to logic and common sense.[12]
[7]McKenzie v The Queen (1996) 190 CLR 348, 366 (Gaudron, Gummow and Kirby JJ) (‘McKenzie’).
[8]R v Stone (Unreported, 13 December 1954, Devlin J) as cited in McKenzie (1996) 190 CLR 348, 366.
[9]McKenzie (1996) 190 CLR 348, 367.
[10]Ibid.
[11]Ibid.
[12]Ibid, 368.
Mr Croucher SC, who appeared for the appellant, submitted that the verdicts of guilty on charges 3 and 4 were ‘book ended’ with acquittals on charges 1, 2 and 5. He submitted that these verdicts of not guilty were likely to mean, at a minimum, that the jury could not have excluded the reasonable possibility that the appellant believed that the complainant was consenting to the alleged behaviour on each charge.
In my view, this analysis does not withstand logical scrutiny. Charges 1 and 2 were said to have occurred downstairs at an earlier time and in a different room than charges 3 and 4. This was at, or close to, a time when many witnesses say the complainant was awake, albeit intoxicated. It would have been open to the jury to have entertained a doubt as to whether the complainant was consenting to the impugned conduct in charges 1 and 2, or, at the very least to have found that it was possible that the appellant believed she was, without that conclusion having impacted at all on their factual analysis of events upstairs.
Charge 5 (penile rape) was based entirely upon the admissions made by the appellant in his police interview. I have summarised these in some detail in paragraph 12. There is no video recording of these acts. In his interview the appellant described having penetrated the complainant from behind, her having initially pushed back against him and then having manifested her lack of consent by kicking him in the leg. She said nothing, and the appellant told the police that he did not think that she was asleep at the time.[13] Given that this was the only evidence to support charge 5, it was clearly open to the jury to conclude that the Crown had not excluded the reasonable possibility that the appellant believed, at least initially, that the complainant was consenting. There was no evidence to contradict his account.
[13]See Exhibit X. Applicant’s police interview, questions 383, 393, 394, 402-408.
Charges 3 and 4 have a very different evidentiary basis. The appellant maintained to the police that he believed the complainant was awake and
consenting.[14] He did not give evidence. Unlike charge 5, a video recording exists of all activities said to constitute charges 3 and 4. As I have observed earlier, the complainant is seen lying on her stomach, motionless and silent. These recorded activities occupy in total over three minutes. I consider that the jury were perfectly entitled, on the basis of the videos alone, to conclude that the appellant was either aware that the complainant was not consenting, or that she might not be consenting. The fact that the appellant filmed this activity at all, and that at the conclusion of 9031 he filmed himself giving a ‘thumbs up’ to the camera, may well have persuaded the jury that, at that stage, he was aware that the complainant was asleep, or nearly so. It would follow that she was not consenting (within the meaning of s 36 of the Crimes Act 1958) to his advances.
[14]See Exhibit X. Applicant’s police interview, questions 336-342, 343, 348, 359, 362, 364-369, 372, 375- 376, 381, 390-391.
As I have said, the direct evidence in support of charge 5 came solely from the largely exculpatory account given by the appellant to the police. I consider it likely that the jury, in the absence of any video of the activities alleged, were simply not prepared to find, on this charge, that the appellant knew that the complainant was not consenting, or that she might not be consenting. Such a conclusion was much more readily available in relation to charges 3 and 4, where the activities were filmed.
Accordingly, I am unable to conclude that the verdicts on charges 1, 2 and 5 are irreconcilable with the verdicts on charges 3 and 4. I do not believe that there is an inherent affront to logic and common sense within them. It may be that the verdict on charge 5 was merciful, but that is no reason to interfere with the verdicts on charges 3 and 4.[15]
[15]See R v Kirkman (1987) 44 SASR 591, 593 (King J).
Conclusion
For the foregoing reasons I am of the view that ground 3 has been made out. As a result, the convictions for rape on charges 3 and 4 must be set aside and a new trial ordered on those counts.
It follows that nothing need be said regarding the appeal against sentence.
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