Damian Webster (a pseudonym) v The Queen
[2021] VSCA 14
•10 February 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2019 0197
| DAMIAN WEBSTER (a pseudonym) | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | BEACH, McLEISH and NIALL JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 3 February 2021 |
| DATE OF JUDGMENT: | 10 February 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 14 |
| JUDGMENT APPEALED FROM: | DPP v Webster (a pseudonym) [2019] VCC 1437 (Judge Gucciardo) |
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CRIMINAL LAW – Appeal – Conviction – Jury found applicant guilty of four of seven charges of rape – Whether on the evidence it was open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt in respect of those four charges – Whether inconsistent verdicts – Evidence capable of supporting verdicts – No inconsistency – Leave refused – Woods v The Queen [2019] VSCA 259 applied.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr T F Danos | Victoria Legal Aid |
| For the Respondent | Mr J C J McWilliams | Ms A Hogan, Solicitor for Public Prosecutions |
BEACH JA
McLEISH JA
NIALL JA:
Following a trial in the County Court, the applicant was convicted of four charges of rape and acquitted on another three charges of rape. The complainant was the applicant’s domestic partner at the time. The applicant and the complainant formed an intimate relationship and lived together from mid-2015. The relationship came to an end in February 2016. The prosecution alleged that the applicant penetrated the complainant’s vagina with his finger on one occasion and his penis on six occasions when the complainant was asleep or, on one occasion, pretending to be asleep.
The applicant denied that the offending occurred.
A jury convicted the applicant on charges 1, 5, 6 and 7. He was acquitted on charges 2, 3 and 4. He seeks leave to appeal the convictions recorded on charges 1, 5, 6 and 7 on the basis that they are unreasonable and/or cannot be supported having regard to the evidence. In his particulars appended to that ground, he contends that upon the whole of the evidence it was not open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt in respect of each charge. Further, he contends that the verdicts of guilt are inconsistent with the findings of not guilty on charges 2, 3 and 4.
In order to understand the argument that the guilty verdicts are inconsistent with the acquittal on charges 2, 3 and 4 it is necessary to refer to the evidence on each of the seven charges. It is convenient to do that in chronological order.
The evidence
The complainant said that she and the applicant engaged in consensual sexual activity on a regular basis. She also said that drug use, including the ingestion of ice, was a regular feature of the relationship in its later months.
She said that on a number of occasions she awoke from her sleep to discover the applicant having sexual intercourse with her in circumstances where she had no recollection of having fallen asleep or of engaging in sexual activity. She said that she raised this with the applicant who initially laughed it off. She said that she told the applicant she was confused about how and why it was happening. Her evidence of these encounters was led as uncharged acts.
The complainant said that the applicant was involved in a motorcycle accident in September 2015 which required him to be hospitalised. She said that when the applicant was released from hospital he remained in quite a lot of pain but he was desperate to have sex with her all of the time. She said that things were quite stressful in the relationship at that time.
Charge 1
The complainant said that on 2 December 2015 she woke up in the living room to find the applicant kneeling next to the couch on which she had been sleeping. She said that as a result of previous occasions when she had woken to find the applicant having sex with her, she lay still to see what would happen. While she pretended to be asleep, the applicant started touching her legs. He then started rubbing his fingers over her pants against her vagina, placed his hands inside her clothing and penetrated her vagina with his finger. The complainant then pretended to wake up and confronted the applicant. She asked what he was doing, to which he replied that he had been asleep on the floor next to the couch. She said that she was quite frightened at that stage.
The complainant said that she raised the event with the applicant on 4 December 2015 and asked him why he was touching her while she was asleep on the couch. She said that initially the applicant denied that it had happened and said that he had fallen asleep with his head on her lap and she had been masturbating herself while she was asleep. The complainant said that this made her extremely upset and she told the applicant that he was lying and that she had been awake the whole time. At that point she said he got really frustrated and angry and asked her whether she was pretending to be asleep. She said that the conversation became quite agitated.
It is convenient at this point to refer to a telephone conversation between the applicant and the complainant which was recorded by police. That conversation occurred in about mid-February 2016 after she had complained to police about a number of the events that led to the charges. In the course of that conversation, the complainant raised with the applicant that he had been having sex with her while she was asleep. She said the first time was when the applicant was ‘kneeling at the couch touching me like that, like — and then stopping every time I moved’. She asked him why he kept stopping every time he thought that the complainant was waking up. In response to that description, the applicant replied that he ‘[d]idn’t want you to be angry … I just thought you were gunna be angry.’
Charge 2
Returning to the narrative, the complainant said that in December 2015 she woke up in the morning and the applicant was having breakfast in the kitchen or getting ready for work. Her vagina was quite sore and she was wearing no pants or underwear. When she got up from the couch, there was semen coming out of her vagina. She said that she asked the applicant whether or not he had had sex with her or tried to have sex with her that night.
Charge 3
The complainant said that on 14 or 15 December 2015 she woke up in the middle of the night with the applicant on top of her, penetrating her vagina with his penis. She said that she was very angry and pushed him off. She said that she confronted the applicant and was really distressed. When asked when that had taken place, she said that she could not recall 100% when that occasion was. The evidence in relation to the December incidents, which would include charges 2 and 3, overlapped somewhat and the sequence is somewhat difficult to follow.
We note that there are a number of messages exchanged between the applicant and the complainant which the prosecution relied on as containing admissions by the applicant. It is convenient at this point to refer to one exchange which occurred on 12 December 2015, in which the applicant said:
I couldent want u any more [complainant’s name] .. all i crave is affection and it seems to b hard at times. please all i need is for you to care and love me. im sorry im being selfish. and im really sorry for all the things ive done to u[1]
We note that on the complainant’s chronology this message was sent before the events that were the subject of charge 3.
[1]The messages reproduced in this judgment are as they appear in the originals.
In her evidence the complainant said that she went to police to report the incidents on a number of occasions. On 18 December 2015, she went to Croydon police station and provided an account to Detective Senior Constable Turner (‘DSC Turner’).
The evidence of DSC Turner
DSC Turner said that in December 2015 she had a conversation with the complainant who had raised concerns about the behaviour of the applicant. DSC Turner said that the complainant had indicated to her that she thought the applicant had been having sex with her in her sleep. In cross-examination, DSC Turner said that the complainant had told her that she thought the applicant had been searching the internet about people having sex with people when they were asleep and that ‘she felt that might have happened to her’. DSC Turner said that the complainant was not sure but said that she was worried that this was happening. At that point, the complainant did not give police any description of any sexual activity that had occurred.
In cross-examination, the complainant disputed the account given by DSC Turner. She disagreed with the proposition that she had not told DSC Turner that the applicant was having sex with her in her sleep.
Charge 4
The complainant then gave evidence that in mid-January 2016 she could recall an occasion when she and the applicant were eating lasagne on the couch one evening. She specifically recalled the television program that she and the applicant were watching. However, she said that she did not remember falling asleep and when she woke up it was evident that the applicant had been having sex with her again while she was asleep. When asked to explain why, she said that she was missing her clothes and underwear and had semen dripping out of her vagina. She said that when she had woken the applicant was in the house and she had a conversation with him in which the applicant agreed that the two of them had had sex but he maintained that the complainant had been awake and had consented.
She said that after this occasion she went to the Croydon police station and made a complaint.
It is again convenient to interrupt the narrative to note that the complainant made a number of statements to police. They included one on 16 August 2016 in which she referred to eating lasagne on the couch and later waking with no clothes and semen coming out of her. She said that when she awoke the applicant had already gone to work and had left the house in a complete mess and she was not able to ask him about the incident until that night. In cross-examination, it was put to the complainant that she had given two inconsistent accounts of when she confronted the applicant about the incident. In her police statement, she said that it was when the applicant had returned after work and in her evidence-in-chief it was immediately when she awoke.
Charge 5
The complainant next gave evidence about an incident on 29 January 2016. She fell asleep on the couch and when she woke up the next morning she had no underwear on and felt pain in her vagina. She said that she confronted the applicant straight away and asked him whether he had done anything to her in her sleep again. She said that he laughed at her and said: ‘you started pulling my dick.’ She said that there was an angry confrontation between her and the applicant about the incident.
Charges 6 and 7
The complainant said that on 2 February 2016, she had slept on a mattress in the lounge room and had woken at about 1 am to find the applicant having sex with her, with his penis in her vagina.
She said that she did not want to confront the applicant about it at the time because he could get quite angry and aggressive sexually and she already had plans to leave. She said that she went back to sleep and she woke up at about 5 or 5:30 in the morning and again he was on top of her, having sex with her. She said that she was extremely upset but did not say anything to cause a confrontation. She said that she had organised to go to the police station that day and to leave the relationship.
As already noted, the prosecution relied on message exchanges between the applicant and the complainant. Those messages include an exchange on 15 February 2016. On that day, the complainant sent a message to the applicant, saying: ‘You rape me and have only ever done it to me because you love me more thsn any1 before’. The applicant responded: ‘What the fuck’. The applicant then wrote: ‘4 days ina row ….. only 2 weeks ago, tell me how you can hsve changed????’ The applicant then wrote:
wat anser r u looking for? u have in your mind wat u think it is and if i dont tell you wat u want to hear u say its lies.
its because I love making love with you. but it was the wrong way to go about it
A little later in the exchange, the complainant wrote: ‘You frightened me and you new it, u saw me cry and shake and i begged you to stop, [applicant’s name] I don’t want it ti happen anymore’. The applicant responded: ‘u didn’t. and I am extremely sorry for it. it won’t happen again’.
Also on 15 February, the complainant sent a message to the applicant, saying: ‘… I have told yoy over and over again and to stop …’ to which the applicant replied: ‘it won’t keep going’. Later, he wrote: ‘it won’t happen again because I dont want you to hurt or have fear.’ In response to the next message in which the complainant wrote: ‘It should never have happened’, the applicant replied: ‘nope itwl was wrong and im sorry’.
The evidence of Dr Turnbull and the effect of ice
In cross-examination the complainant admitted to taking ice regularly to the point where she was consuming ice twice on some days. She also accepted that she and the applicant consumed alcohol, including vodka and wine. She was cross-examined about one incident where she said she woke up feeling like there were four people having sex with her and that ultimately she realised that it was only the applicant. It was put to her that her drug use had distorted her recollection and could have caused her to fall asleep suddenly.
As part of his defence, the applicant called Dr Leon Turnbull, a forensic psychiatrist. Dr Turnbull had not examined the complainant. He said that he had read the summary of prosecution opening and transcript of the committal proceedings and provided a report. He explained that he had considerable experience dealing with the effects of drugs, in particular ice, and that his experience extended, on his estimate, to thousands of people he had seen clinically or in respect of whom he had provided a professional report.
Dr Turnbull said that in his experience individuals who were heavy ice users tended to be unreliable in recounting a history of events. He said that as a result of ice use there can be erosions in recall, actual memory deficits, distorted recollections and psychosis, including delusional recollections of events. Dr Turnbull acknowledged that he had not assessed the complainant but noted an incident where the complainant remembered four people having sex with her which he considered to be ‘curious’ and he would characterise it as ‘a distorted recollection’. Dr Turnbull did not identify any evidence of psychosis.
Dr Turnbull said that ice can give users ‘abundant psychological and physical energy but then they’re prone to burning out rather rapidly, to the state of exhaustion and then fall asleep’. He said that they can ‘go on an incredible high, but crash very quickly’. He said that ice users might become ‘exhausted and require sleep and that can come on very suddenly’.
The prosecution case at trial
Essentially, the prosecution relied on the evidence of the complainant which it contended was buttressed by admissions on the part of the applicant contained in the messages and telephone recordings.
The defence case at trial
In his closing address to the jury, counsel for the applicant concentrated on three features of the evidence. The first was Dr Turnbull’s evidence. The second was the evidence of DSC Turner and the third was the complainant’s recollection of the events surrounding the incident in mid-January 2016, which was the subject of charge 4.
Counsel relied on Dr Turnbull’s evidence that individuals who are heavy ice users are unreliable historians, may suffer from distorted recollection and can go from an incredible high but crash very quickly and fall asleep.
In relation to charge 4, the applicant’s counsel focused on what was said to be an inconsistency in the complainant’s evidence in that she had told the jury that she confronted the applicant as soon as she had woken up, whereas in her statement to police, she had said that when she had woken the applicant was at work and the confrontation occurred that evening.
Counsel also emphasised, as the third feature of the evidence, the discrepancy between the accounts of what was reported to police on 18 December 2015. It will be recalled that according to DSC Turner the complainant told her that she was concerned that the applicant was having sex with her while she was asleep but provided no detail, whereas the complainant disagreed that she had not told DSC Turner that the applicant was having sex with her in her sleep.
Applicant’s submissions
The applicant commenced his submissions with his contention that the verdicts of guilty are inconsistent with the acquittals on charges 2, 3 and 4.
The applicant submits that the prosecution case was totally dependent upon the jury accepting the evidence of the complainant and it was irrational or illogical for the jury to accept the evidence on charges 1, 5, 6 and 7 but reject the evidence in relation to charges to 2, 3 and 4.
Consideration
In Woods v The Queen,[2] this Court reiterated the test that must be applied in order to establish that a guilty verdict is unsafe on the basis that it is inconsistent with a verdict of acquittal on another charge.[3] Where the inconsistency is said to be based on jury verdicts on different counts, the test is essentially one of logic and reasonableness. The applicant must demonstrate that no reasonable jury, which had applied its mind properly to the facts of the case, could have arrived at the conclusion reflected in the verdicts.[4]
[2][2019] VSCA 259 (‘Woods’).
[3]Ibid, Maxwell P, Kaye and Niall JJA citing, amongst other cases, MacKenzie v The Queen (1996) 190 CLR 348 (‘MacKenzie’) and MFA v The Queen (2002) 213 CLR 606.
[4]Ibid [75].
In seeking to make good the ground, the applicant has a high onus of persuasion that reveals ‘an affront to logic and common sense which is unacceptable and strongly suggests a compromise of the performance of the jury’s duty’.[5] The analysis must take into account the conventional direction given to a jury (which was given in this case) that the jury must give separate consideration to each charge and only decide the case on the evidence relevant to that charge.
[5]Ibid [80], citing MacKenzie (1996) 190 CLR 348, 368 (Gaudron, Gummow and Kirby JJ).
Applying that approach here, no relevant inconsistency exists.
First, the verdicts of guilt on charges 1, 5, 6, and 7 show that the jury must have found the evidence of the complainant to be generally reliable. However, importantly, on each of those charges the evidence was not confined to her account.
On charge 1, the jury were free to take into account, as supporting evidence, the fact that when confronted by the complainant with an account of the offending in a recorded telephone conversation, the applicant did not take the opportunity to deny the allegation. Indeed, it is open to understand his response as saying that he did not wake the complainant because he did not want her to be angry. It is also notable that the complainant said she was awake during the offending that constituted charge 1.
In relation to charges 5, 6 and 7, which occurred on 29 January and 2 February 2016, in addition to the complainant’s account, the jury were entitled to take into account the applicant’s messages of 15 February 2016, in which the applicant admitted to wrongdoing covering each of charges 5, 6 and 7. Early on in the exchange, the complainant referred to what had happened two weeks earlier (which was capable of covering the events caught by charges 5, 6 and 7) and the applicant said that his conduct was ‘the wrong way to go about it’; he was ‘extremely sorry for it’; ‘it won’t happen again’; ‘it won’t keep going’; it was ‘wrong’ and he was ‘sorry’.
In oral submissions, the applicant sought to confine those admissions to charges 6 and 7. However, in our view, it was open to the jury to treat the admissions as extending to the events caught by charge 5. Indeed, in his written case, the applicant accepted that after the incident on 29 January 2016, the applicant admitted that he had sex with the complainant and apologised for doing so.
It follows that in relation to each of the charges on which the applicant was convicted, there was evidence in addition to that of the complainant that supported the complainant’s account.
The contention that the verdicts are inconsistent can also be considered from the perspective of the three charges in respect of which the applicant was acquitted. In relation to charges 2 and 4, the complainant did not give direct evidence of penetration and inferred that there had been sexual intercourse because she awoke without her clothes and observed semen. Further, the evidence that the applicant had penetrated her vagina with his penis in December 2015 was potentially inconsistent with her account to DSC Turner. The jury may well have had a doubt that there had been penile penetration in December 2015. That would not give rise to any inconsistency in respect of charge 1.
Further, in respect of charge 4, which was said to have occurred in mid-January 2016, the defence pointed to a potential inconsistency in the complainant’s account of when she had confronted the applicant. On one version, it was when she woke up and in another, when the applicant returned from work. The jury might have considered that inconsistency and the fact that the complainant was not certain when the event occurred as providing some doubt in relation to that allegation.
The fact that the jury acquitted the applicant on charges 2, 3 and 4 does not entail that the jury must have had significant concerns about the reliability or credibility of the complainant. It may reflect no more than that the jury concluded that it could not be satisfied beyond reasonable doubt of those charges in the absence of some additional evidence and that charges 2, 3 and 4 were not supported by messages or recorded telephone calls but charges 1, 5, 6 and 7 were.
There is nothing irrational or inexplicable about the acquittals on charges 2, 3 and 4 that renders the verdicts of guilt on the remaining charges suspect.
The applicant also submits that the jury, acting reasonably, must have had a doubt in relation to charges 1, 5, 6 and 7. We reject that submission.
There was nothing implausible or improbable in the complainant’s account. Viewed as a whole, it was well open to the jury to convict the applicant on the charges of which he was found guilty. As noted above, in his final address to the jury, the applicant’s counsel focused on three aspects of the prosecution case: the evidence of Dr Turnbull and the two inconsistencies in the complainant’s account, to which we have referred.
The jury were well able to assess the evidence of Dr Turnbull. He gave evidence that based on his experience, heavy users of ice are likely to present as unreliable historians and may suddenly become extremely fatigued. No doubt the jury took that evidence into account in assessing the complainant’s evidence. However, once the applicant’s messages and telephone calls are factored in, the jury were well capable of accepting the complainant’s account in respect of one or more of the events. As things transpired, they were satisfied of the guilt of the applicant in respect of four of the seven charges. The evidence of Dr Turnbull was general in nature and did not address the specific circumstances of the complainant. It did not require that the jury have a doubt about the complainant’s account.
Similarly, the jury were well placed to assess the evidence of the complainant, including by reference to the accounts she had given to police. The inconsistency between her accounts was not of such extent or gravity that a jury, acting reasonably, would be bound to have a reasonable doubt about all of her evidence.
In short, the complainant’s evidence, when considered in the light of the evidence as a whole, was well capable of being accepted to the criminal standard. Contrary to the applicant’s submissions, the differential verdicts suggest a conscientious consideration of the evidence on the part of the jury.
The application for leave to appeal against conviction must be refused.
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