Dario Esposito (a pseudonym)[1] v The Queen
[2020] VSCA 245
•22 September 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2019 0126
| DARIO ESPOSITO (A PSEUDONYM)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]These reasons have been anonymised to avoid the risk of identifying the victim of sexual offending.
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| JUDGES: | PRIEST, T FORREST and WEINBERG JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 16 September 2020 |
| DATE OF JUDGMENT: | 22 September 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 245 |
| JUDGMENT APPEALED FROM: | DPP v [Esposito] (Unreported, County Court of Victoria, Judge Carmody, 19 October 2018) (Conviction) |
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CRIMINAL LAW — Appeal — Conviction — Rape (6 charges) — Whether verdicts unreasonable — Prosecution case depended on complainant’s account — Whether complainant credible and reliable — Whether complainant a ‘witness of truth’ — Whether hypothesis consistent with innocence — Whether jury should have had a reasonable doubt as a result of applicant’s denials in police interview — Reasonably open to jury to convict — Leave to appeal refused — M v The Queen (1994) 181 CLR 487; Pell v The Queen (2020) 376 ALR 478 applied — Criminal Procedure Act 2009 s 276(1)(a).
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr A Hands | Mr C Marshall & Associates |
| For the Respondent | Mr P Bourke | Ms A Hogan, Solicitor for Public Prosecutions |
PRIEST JA
T FORREST JA
WEINBERG JA:
Conviction and ground of appeal
An indictment filed in the County Court charged the applicant with supplying a drug of dependence to a child[2] (charge 1) and six charges of rape[3] (charges 2, 4, 6, 8, 10 and 12).
[2]Drugs, Poisons and Controlled Substances Act 1981, s 71B(1).
[3]Crimes Act 1958, s 38(1).
Following a trial, on 19 October 2018 the jury found the applicant guilty of the charge of supplying a drug to a child and the six charges of rape.[4] On 22 March 2019, the trial judge imposed a total effective sentence of nine years and six months’ imprisonment, with a non-parole period of six years and six months.
[4]Six charges of sexual penetration of a child under 16 years (charges 3, 5, 7, 9, 11 and 13) were laid as alternatives to the rape charges. Given the jury’s verdicts on the rape charges, there was no occasion to take verdicts on them.
The applicant seeks leave to appeal against conviction on a single ground, formulated in the relevant Notice as follows:
A. There was a substantial miscarriage of justice under s 276(1)(a) of the Criminal Procedure Act 2009 as outlined below:
1. The jury verdicts on charges 2, 4, 6, 8,10 and 12 [the rape charges] were unsafe and unsatisfactory.
In the written case, however, ‘particulars’ were appended to the ground, so that it is contended that
the jury verdicts on charges 2, 4, 6, 8, 10 and 12 were unsafe and unsatisfactory because:
(A)The evidence left open the alternative scenario consistent with innocence that the alleged offending was consensual and that the jury should have entertained a reasonable doubt about the allegation of rape.
(B) The jury should have entertained a reasonable doubt that the accused had a reasonable belief that the complainant was over 16 years old.
(C) The complainant was not a witness of truth.
In our view, for the reasons that follow, the ground is without substance. Leave to appeal must be refused.
Overview
On Saturday, 14 January 2017, the applicant, aged 56 years, and the complainant, ‘CJ’, aged 15, got into conversation as they got off a tram at the corner of Elizabeth Street and Flinders Street, Melbourne. They had not previously met.
At that time, CJ was under the care of the Department of Health and Human Services. She had been living at an ‘out of home’ placement, but had run away earlier that day. She told the applicant she was homeless. He offered her a place to stay for the night.
CJ’s evidence was that she told the applicant she was aged 15. At some point, the applicant gave CJ a Myki travel card. They travelled together by train to Rosanna Station, and then walked to the applicant’s home.
When they got there, the applicant told the complainant to be quiet so as not to disturb his two housemates. They then went directly to the applicant’s bedroom. Once inside, the complainant asked the applicant for alcohol. He gave her a can of beer, and later some grappa. They shared a ‘joint’ of cannabis (charge 1 – supplying a drug of dependence to a child), and the applicant then kissed and fondled the complainant.
The applicant kissed CJ ‘all over’, and undressed her with some assistance from her. He then digitally penetrated her vagina, performed oral sex on her (including penetration), and had penile-vaginal sex with her (charges 2, 4 and 6 – rape). CJ did not consent to this sexual activity. Throughout the evening, the applicant continued sexual activity. The two then slept.
When they awoke the next morning, so the prosecution alleged, the applicant once more penetrated the complainant’s vagina with his fingers, tongue and penis (charges 8, 10 and 12 – rape). CJ left the applicant’s house after she asked to have a smoke outside the house.
The complainant was examined at the Royal Children’s Hospital later that day by Dr Merryn Redenbach, a forensic paediatrician. CJ told Dr Redenbach that penetration of her vagina had caused her ‘strong pain’. Dr Redenbach’s evidence, based on a report that she had prepared, included the following:
[CJ] is a highly vulnerable 15 year old girl, reported to be of Aboriginal and Torres Strait Islander decent [sic] living in a Department of Health and Human Services foster care, who reported a non-consensual penile vaginal intercourse with a much older adult male on 14 and 15 January 2017. On examination on 16 January, there was noted to be tenderness of the vaginal vestibule and hymen. Tenderness is a subjective feeling of discomfort. Trauma is one of the possible causes of tenderness.
Cross-examination of Dr Redenbach by the applicant’s counsel included the following questions and answers:
You talk about [the complainant] having Tanner Stage 4 pubic hair? … Is that the same as saying that she had the indicia of a mature woman?---That’s correct, so she had – yes, she had pubic hair that was almost at its final stage of being adult.
Is there a Stage 5 or not?---Yes, there is.
And is it fair to say that your observations that she had the appearance of a fully mature woman?---We would say that she had a post pubertal appearance which is that she had secondary sexual characteristics. She had the, as you mentioned, the genital hair. She also had fully developed breasts. I wouldn’t necessarily say she had the appearance as a mature woman and in my report I have noted that she was quite – appeared quite childlike in her interactions at times.
Police arrested and interviewed the applicant on 17 January 2017. In his record of interview, the applicant admitted significant aspects of the sexual activity alleged. He said it was ‘all consensual’. The applicant told police that the complainant had told him that she was in her ‘20s’, and he said that she looked to be of about that age. He also stated that the complainant initiated the sexual activity in which they engaged.
The complainant’s evidence
CJ gave evidence at a special hearing. Her evidence-in-chief consisted of the playing of two VARE[5] interviews (which had been conducted with her by police on 16 January 2017 and 19 January 2017), and she was cross-examined by the applicant’s counsel.[6] The two VAREs, and the recording of the evidence from the special hearing,[7] constituted her evidence before the jury.
[5]Video and audio recorded evidence. See Criminal Procedure Act 2009, s 367; and Criminal Procedure Regulations 2009, Part 2.
[6]See [39] below.
[7]See Criminal Procedure Act 2009, s 370.
Taking up the narrative in the applicant’s bedroom, in the first VARE CJ described the relevant events as follows:[8]
Then he managed having to sneak me into his place that he was living at and I thought, ‘Well, maybe it’s ‘cause he doesn’t want to disturb the other people again’ ... He acted normal for a bit, then he started offering me alcohol and marijuana. As I’ve gone to lay down he’s just started saying creepy stuff, started doing creepy stuff, then proceeded to actually start touching me and – and using his mouth …
[8]Emphasis added to various passages.
The complainant said that the applicant locked the door and put on a movie, and continued:
Well, from there, like, I was sitting down. He was talking to me normal, like, asking, like, how I ended up in the situation where I was gunna be sleeping on the streets and everything. So I thought maybe he was just genuinely concerned. And then things kind of started – like, then he started off bringing alcohol, cigarettes, marijuana and everything. … A can of Carlton Draught and, like, just a bit of grappa or whatever it’s called. It was really strong to point where it burned my throat. …
CJ said that the applicant offered her marijuana and said:
Well, ‘cause I have been a smoker for a while I was kind of hanging for - I’ve been, like - I’ve been, like, hanging for a cigarette for, like, ages so I accepted. But then with the marijuana thing it was more ‘cause I was kind of stressed and I was tired so I wanted to get a good night’s sleep so I kind of just wanted to mellow out and just sleep. … It didn’t work. So then I just ended up lying on the bed and then after that, that’s when the touching and everything started.
…
Well, after he’s taken off my clothes he just started touching me and moving his hands up from – like, he started around my ankles and just kept moving his hands up my legs. And then he went up my – then he moved – then he kept moving his hands up my arms and then moved them back down again so he could go over my breasts and stomach and lower area. … Where then he proceeded to start using his fingers and actually kind of – well .......... like, use his fingers inside of me. Then after that he started to use his mouth down there. … And then after that he kept going up to try to kiss me and I kept trying to push away but I was kind of stuck there with him on top of me so I couldn’t get out. … And then after that he started kissing my body and using his mouth pretty much all over .......... place which probably about 98 per cent of my body. … And then, yeah .......... proceeded to penetrate me. … He had actually inserted his penis into my vagina and it hurt like hell. And I kept telling him no and I kept saying it and saying it and saying to the point where he – it was the only thing I could say and pretty much the rest of my vocabulary had just gone. I couldn’t say any - the only few words I said was, ‘No, no, no more. Please stop,’ but he didn’t listen. The only time he would stop was if he went out for another bong and a coffee, sometimes to go to the toilet. But then he’d come back and straightaway start again. And it was going on for .......... hours. And then I’ve eventually fallen asleep and I’ve woken up with his hands on me, around my stomach and ribs there. And then he’s – I’d only been awake for about five, 10 minutes. He’s gotten up, he’s had another bong and then he’s come back down and started on me again and I kept saying no.
The complainant explained that the applicant had penetrated her vagina with his fingers, and that ‘somehow found a way to push [his tongue] inside of it as well’. She also said that the applicant penetrated her vagina with his penis. The complainant said that they eventually went to sleep, and that the next morning ‘he’s started up again … Pretty much the exact same thing he was doing’. She said:
He used his fingers. He’d used his mouth. He penetrated again. … The vagina. … Then I’ve asked if I could have a cigarette and he’s like, ‘O.K., but you can have it in here. You know that, right?’ and I’m like, ‘Yeah, but I’d rather go outside. I need some fresh air.’ … I ended up just walking back to the station and catching a train to Flinders Street … maybe around 10.00 something … in the morning.
It is unnecessary to set out any of the contents of the second VARE. Much of it was devoted to the complainant setting out the times, and the circumstances, in which she had told the applicant that she was aged 15.
The applicant’s submissions
In support of the contention that the evidence ‘left open the alternative scenario consistent with innocence that the alleged offending was consensual, and that the jury should have entertained a reasonable doubt about the allegation of rape’, the applicant’s counsel sought to rely on the following eight factors:
· first, the complainant initiated the conversation with the applicant after getting off the tram in the city;
· secondly, the complainant went willingly back to the applicant’s shared house in the suburbs, and her demeanour in CCTV footage appeared ‘relaxed’;
· thirdly, the complainant ‘never actually voiced her lack of consent’;
· fourthly, the complainant assisted the applicant to take her jeans off and she removed her own underpants;
· fifthly, the complainant did not mention in her VAREs that the applicant had forced her to put her hands on the back of his head when he was performing cunnilingus;
· sixthly, the doctor who examined the complainant noted that she had the indicia of a mature woman;
· seventhly, the applicant gave ‘a full, exculpatory account of the allegations’ in his record of interview with police;
· eighthly, the applicant told police that the complainant made noises of enjoyment while they were engaging in sexual activity, and that he would have stopped immediately had she led him to believe that she was scared or frightened, or that he was being overbearing (or anything like that).
Although its relevance escapes us, in the written case the applicant’s counsel also devoted a deal of space to arguing that the jury should have entertained a reasonable doubt that the applicant had a reasonable belief that the complainant was over 16 years old. We need not recite the evidence upon which counsel sought to rely in support of this facet of his arguments.
Finally, counsel argued that the complainant was not a witness of truth. He relied on what he claimed were the complainant’s ‘lies, half-truths and non-responsive answers’ in the two VAREs and in the special hearing.
The respondent’s submissions
Counsel for the respondent submitted in writing that evidence relating to the complainant’s age was relevant only to the alternative charges (upon which it was unnecessary to take a verdict). Evidence of the complainant’s age, and the applicant’s knowledge of her age, were not elements of the charges of rape upon which the applicant was convicted.
As to consent, counsel for the respondent submitted that the complainant’s preparedness voluntarily to go back with him to his home is explicable given her circumstances on the night of 14 January 2017. She was a 15 year old girl, who had absconded from her residential placement. The complainant was cold and tired and was prepared to put her trust in the applicant, who offered to take her home. She told the applicant that she was 15 years of age; was at school; and had been homeless on and off for two years. Counsel submitted that the evidence of the meeting between the complainant and the applicant was not relevant to the issue of consent, which arose only later when the complainant and the applicant were at his home and sexual contact occurred.
The respondent’s counsel submitted that the complainant’s evidence was that after she and the applicant had consumed marijuana and alcohol, the applicant began touching her body and then began sexually penetrating her. The complainant’s evidence was that she repeatedly told the applicant ‘no’. In cross-examination the complainant said that she was trying to say the words ‘no’ and ‘stop’, but added that maybe the words did not come out. She said it was possible that she had taken off her jeans and underwear because ‘she was stressing out way too much’. That evidence, counsel submitted, did not, however, undermine the totality and the cogency of the complainant’s account in which she described herself as overcome, frightened and unable to fight back. The effect of her evidence, counsel contended, was that she submitted to the multiple acts of sexual penetration in the context of being in unfamiliar surroundings, at least to some extent substance affected, and with a much older man whom she did not know and who had abused her trust. As the complainant had said, she ‘just laid there lifeless ... I was just too petrified to move’.
Counsel for the respondent accepted that at the special hearing the complainant for the first time said that the applicant had forced her to put her hands on his head while he penetrated her vagina with his tongue. But it was open to the jury to accept the complainant’s explanation for this minor revision to her evidence.
Next, counsel submitted that the examining doctor’s view that the complainant displayed the ‘indicia of a mature woman’ may have had some relevance to the issue of the applicant’s professed belief that the complainant was older than 16 years of age, but was of no relevance to the question of consent.
As to the applicant’s denials in the record of interview, the respondent’s counsel submitted that the complainant gave a consistent, cogent and timely account of non-consensual sexual activity to the examining doctor, police and others, and she maintained her account under cross-examination. Although in the record of interview the applicant gave a full exculpatory account of the allegations including that the complainant was enjoying the sexual activity, it was open to the jury to accept the evidence of the complainant and reject the account of the applicant to the extent that it contradicted the evidence of the complainant. It did not follow from the applicant’s denials that the jury were obliged to have doubts about the complainant’s version.
With respect to the overarching contention that the complainant’s evidence was replete with lies, half-truths and non-responsive answers, the respondent’s counsel submitted that the jury had the advantage of seeing and hearing the complainant give her evidence. It was well within their capacity to assess her credibility and reliability against the matters advanced at trial by the applicant’s counsel.
Discussion
As was observed recently in Pell,[9] the function of this Court in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence[10]
in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment — either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence — the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.
[9]Pell v The Queen (2020) 376 ALR 478, 486 [39] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) (‘Pell’).
[10]Criminal Procedure Act 2009, s 276(1)(a).
When assessing the ‘unreasonableness’ (or ‘unsafe and unsatisfactory’) ground, the test remains as authoritatively stated in M v The Queen.[11] This Court must ask itself
whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
[11]M v The Queen (1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson and Toohey JJ). See Pell, 487 [43].
In our view, when regard is had to the whole of the evidence, it is plain that it was open to the jury to be satisfied of the applicant’s guilt of the six charges of rape alleged against him.
Three of the rape charges, charges 2, 4, and 6 — respectively digital, lingual and penile penetration of CJ’s vagina — related to the evening of Saturday, 14 January 2017, the day the applicant and CJ met (as did charge 1, supplying a drug of dependence, cannabis, to a child). The other three rape charges, charges 8, 10 and 12 — respectively digital, lingual and penile penetration of CJ’s vagina — related to the morning of the following day, Sunday, 15 January 2017.
At trial, the applicant accepted that the kind of sexual activity that was the basis of charges 2, 4 and 6 had occurred on the Saturday evening. In his record of interview with police — which was played to the jury — he agreed that he had penetrated CJ’s vagina with his fingers, had performed cunnilingus on her and had penile sex with her ‘three times’ (so he thought). His ‘defence’ to charges 2, 4 and 6 was consent, or at least reasonable belief in consent.
With respect to the alleged sexual activity on the Sunday morning, the applicant denied that any activity of the kind alleged in charges 8, 10 and 12 had occurred. The applicant told police that he woke up, ‘started pecking’, but ‘couldn’t get it up’. He said: ‘It just wouldn’t go up. Even though she grabbed it, it wasn’t doing nothing. It was a useless, pointless exercise’. He asserted that both he and the complainant endeavoured to initiate intercourse.
The applicant claimed in his interview with police that the sexual activity was ‘all consensual’. He told police that he had penile-vaginal intercourse with the complainant on three occasions, and, although he did not ejaculate, he thought that the complainant had achieved orgasm on three occasions. At one point in the midst of intercourse she had asked him to stop — he thought ‘it was hurting her or something‘ — and he did so, before later resuming. The applicant told police that the complainant had guided his penis into her, and she had held his head whilst he was licking her vagina. He told police he was ‘getting the right signals’, and that if the complainant had led him to believe ‘that she was scared or frightened or [he] was being overbearing or anything like that [he] would’ve stopped straightaway’.
In his final address to the jury, the applicant’s counsel argued that, ‘[f]rom the get-go, [the complainant] is calling the shots’, and he said:
Then we come to the question of consent about [sic] sexual intercourse. It’s a fraught area because there aren’t documents you sign before you engage in sexual intercourse. You don’t have a written contract. You have to pick up on signals and looks, and it’s not easy, and I’m glad I’m well shy of it.
But in relation to his belief as to her consent, and I’d ask you to read the record of interview [scil, VARE?], she says that she said, ‘No.’ Well, she said no, she said no, or she may have said no to herself but the words didn’t come out. That’s what she said. ‘I said no, but maybe the words didn’t come out.’ They didn’t come out, because she said no once. She said no when they first – I’ll go back a step.
They go back to his room. They have a joint, and they lie on the bed together. He has the bong there. They smoke, and then they kiss. They kiss. He doesn’t kiss her. They kiss. And together, they start to take their clothes off. He inserts her penis into her vagina, and she complains. She says, ‘Stop, stop.’ And my client stops.
And then he said, ‘Are you all right?’ and she says, ‘Yep’, and they start to kiss again, and again they have intercourse. …
The trial essentially was a contest of word against word. CJ gave affirmed evidence and was cross-examined. The applicant’s version was before the jury in the form of the record of interview. Self-evidently, the jury could only properly have convicted the applicant of the charges of rape if the main substance of the complainant’s evidence was capable of being — and was — accepted beyond reasonable doubt, and if the applicant’s assertions in the record of interview that all sexual activity was consensual did not engender a reasonable doubt in the jury’s mind.
In assessing whether it was open to the jury to be satisfied beyond reasonable doubt on the basis of the complainant’s evidence, it is instructive to set out in some detail parts of her cross-examination by the applicant’s counsel concerning events after she and the applicant — whom she called ‘Angelo’ — had gone to his bedroom. Her evidence included the following:[12]
[12]Emphasis added.
What you say again in your VARE is look, ‘I don’t like smoking out of a bong.’ So on the night, you smoked a joint and you shared a joint with Angelo, correct?---Yes.
Now it’s not as if he was seeking to ply you with that, it’s you who asked for the marijuana, correct?---I do not recall.
Well I’m putting to you that you were the one who asked him whether he had any marijuana when he was puffing on his bong, what do you say about that?---I don’t remember. It’s a little bit blurry.
He, Angelo, told you that he had some grappa, correct?---Yes.
You ask him whether you could have some grappa?---Um yes.
This is all just within the half an hour or so of you coming into his room, correct?---Yes.
You had a number of shots of grappa, correct?---Yes.
It was strong grappa?---Yes.
Burnt your throat?---Yes.
Made you feel drunk?---Ah like not really drunk, just slightly tipsy.
But there you are, you’ve had several shots of grappa, you’ve had half a can of Carlton Draught beer and you’ve been smoking a marijuana joint with Angelo, correct?---Yes.
...
Now then, what I put to you is that you and he, Angelo, after you’d had the joint or perhaps whilst you were in the process of having the joint with him, started kissing, what do you say about that?---No.
That you started touching each other, what do you say about that?---He started touching me, I had no wish to touch him.
I’m not asking whether you had a wish to touch him?---And I did not touch him.
…
Yes. So what I’m putting to you is that there was you kissing him, he kissing you, what do you say about that?---He was kissing me and ‘cause I was frightened, when I get frightened, I go along with things.
All right, so you were going along with it?---M’hmm.
There was you touching him, he touching you, what do you say about that?---He was touching me, I was not touching him.
What I’m suggesting to you is that it was you who started touching his penis, what do you say about that?---No.
…
[Your] singlet top or the camisole, what I suggest to you is that that was taken off whilst you and Angelo were involved in kissing, hugging each other, what do you say about that?---I don’t recall.
All right. What I suggest to you is that the bra, doesn’t matter whether it was a pink bra or what colour it was. I suggest that the bra was taken off whilst the two of you are kissing and fondling each other, what do you say about that?---It was taken off while he was kissing me.
That he, Angelo, then started kissing you on the breasts?---Yes.
What I suggest to you is, at that stage, you were going along with what was happening, you were happy to allow that to happen, what do you say about that?---I wasn’t necessarily happy to allow that to – to allow for that to happen but I was frightened.
…
And I’d got to the point where I was suggesting to you, putting to you, that he, Angelo, started kissing you on your breasts and you agreed that that happened, correct?---Yes.
Now, at that point in time, you hadn’t said anything about ‘No, don’t do it, stop’, anything of that nature, correct?---I – like, I don’t know if I specifically voiced it. I know I was like, trying to say it, but it didn’t really come out.
What I suggest to you happened next is that he, Angelo, started feeling around the zipper area of your jeans, do you recall that happening?---Yes.
What I suggest to you is that you then took your shoes and your socks off. What do you say about that?---I don’t really recall.
All right. Is it possible that you took your shoes and socks off?---It is possible, but I do not remember.
Do you remember that Angelo gave you – gave you some socks later on, to sleep in for the night, or no?---I recall that. Vaguely, but I recall it.
That was after you and he had had sexual intercourse, I suggest to you. What do you say about that?---Yep.
…
Now back to the chronology, the things that Angelo says happened on this particular night. I suggested to you that you took your shoes and socks off. You don’t disagree with that. What I suggest happened to you next, is that he and you took your black jeans off. What do you say about that?---I’m not 100 per cent sure.
All right. And what I suggest to you, is that it was you who took your underwear, your underpants off. What do you say about that?---I’m not really sure.
...
But in any event, you’re recollection of things is that you can’t remember whether it was Angelo who took off your panties or whether you took them off, correct?---I am not 100 per cent sure, since I was stressing out way too much at that moment.
What I suggest to you, is that you at that stage, were making noises, that you enjoyed the things that were happening. In other words, you were moaning and carrying on in that sort of way. What do you say?---I don’t – like I wasn’t enjoying any of it.
What I want to put to you, is that at that stage, whilst you were involved in that – in that sort of – in the sort of activities that we’ve just been talking about, with Angelo. In other words getting undressed, he helping you to get undressed, he kissing you on the breasts - - -?---M’hmm.
At no time had you said at that stage, ‘No. Stop. Don’t do it’. Anything of that nature. What do you say?---I recall saying it, but that I’m not 100 per cent sure if the words came out.
Yes. Now what I suggest happened to you next, is that he, Angelo, put his finger in your vagina. What do you say about that?---Yes.
It was only one finger, do you agree with that or what do you say?---At the start it was.
Sorry, just the one finger? Yes?---Yes.
That he, Angelo, went down on you and performed oral sex on you?---Yes.
Now, what I want to suggest to you, is that when – when he was doing that, when he was – when he was going down on you, performing oral sex on you, you were holding on to his head. What do you say about that?---He forced me too.
What, you say that he forced you to hold onto his head?---He physically grabbed my hand and – and made me hold my hands onto his head, to keep him down there.
At this stage, of course, you’re laying flat on your back on the bed, correct?---Yes.
He’s, by this stage he, Angelo, has moved down so that his head is between your legs, correct?---Yes.
…
All right. Well, what do you say happened?---He physically forced me to.
All right. Well, when you say, ‘He physically forced me to’ do that, what do you mean by that?---He grabbed me – my – he grabbed me by my wrist and then made me put my hands on the back of his head.
You agree that you never said anything remotely like that to the police, when you were describing this activity to them, in the VARE statement that you made to them?---It was ‘cause it was rather traumatic. It’s only just come to me.
All right. It’s not a situation where you’re just making it up as you go along?---No.
You would agree then, that whilst he’s down on the bed, you’re laying [sic] flat on the bed, you have got hold of the back of his head, correct?---Yes.
Now, what I want to suggest to you, is that there was a time when you then moved up on the bed, and put your vagina on his face. What do you say about that?---No, I never did that.
And that you were - ah - for a period of time, to give it it’s vernacular, you were riding his face. What do you say about that?---No, I never did that.
That at that stage, you were moaning and that you were making noises, that you were enjoying things. What do you say about that?---I don’t know about the noises, but I was not enjoying it.
Now, what I’d suggest to you is that, there was then a time when he, Angelo, got on top of you whilst you were laying on your back and that he put his penis into your vagina, correct?---Yes.
Now what I want to suggest to you, is that it was you who helped him and guided his penis into your vagina. What do you say about that?---No.
That you wrapped both of our legs around him at that stage. What do you say about that?---I recall doing that and that was because I wasn’t – I don’t know why I did it but I was in absolute pain as that happened.
All right. Now, what I want to suggest to you is this, that there was a time after he put his penis into you for the first time where you said to him, ‘No, stop’. What do you say about that?---Yes, I recall that.
What I want to put to you is that he immediately stopped, what do you say about that?---No, he didn’t stop at all.
…
All right. Now, what I want to suggest to you is that you and Angelo had sexual intercourse where he put his penis into your vagina on four or five times during the course of the evening, what do you say about that?---I recall it was more often than that, but that did happen.
What I’m putting to you is that on one of those occasions, on the very first occasion that he put his penis into your vagina, you asked him to stop and he stopped?---He did not stop. I asked him to stop and he did not.
... Now, what I want to suggest to you is that you and Angelo had sexual intercourse where he put his penis into your vagina on four or five times during the course of the evening, what do you say about that?---I recall it was more often than that, but that did happen.
What I’m putting to you is that on one of those occasions, on the very first occasion that he put his penis into your vagina, you asked him to stop and he stopped?---He did not stop. I asked him to stop and he did not.
Now then, what I want to suggest to you is that after the four or five times or however many times it was that two of you had sexual intercourse, you and he then went to sleep in the same bed together, correct?---Yes.
…
You, for your part, slept on the side of the bed that was closest to the centre of the room, correct?---Yes.
And he, Angelo, fell asleep, correct?---Yes.
Now, had you wanted, at that stage, you could’ve left his room, correct?---I could’ve but I was that scared and really shocked at what had happened that I couldn’t gather up the strength to move.
…
What I suggest happened is that the two of you slept that way for a number of hours and then woke up, correct?---Yes.
Now what I want to suggest to you is that in the morning, there was no sexual intercourse whatsoever. Do you know what I mean when I say ‘sexual intercourse’?---Yes, I know what you mean, and yes, there was sexual intercourse in the morning.
What I’m putting to you is that he did not put his penis in your vagina at all in the morning. What do you say about that?---He did.
… What I suggest to you is that there was kissing, there was cuddling, there was fondling in the morning. What do you say about that?---Um, there was kissing, but it was coming from him and me being frightened and going along with it, but I don’t recall – I don’t recall ever hugging him at one stage or any stage, to be honest, and I don’t recall fondling him. He fondled me.
What I want to suggest to you is that in the morning, the situation was that he could not get an erection. What do you say about that?---He said that he couldn’t, but he still kept going.
Even though he didn’t have an erection, is that - - -?---For some reason, he – he said that, but then he did somehow manage to continue.
…
And you say that he then had put his penis in your vagina?---Yes.
Were you holding onto his penis trying to get him to get – were you trying to get him to attain an erection in the morning?---No.
Were you holding his penis at all in the morning?---I do not recall.
Is it possible that you were holding his penis in the morning?---It could be possible, but if I was, it would’ve been to get everything over and done with quicker.
…
What I’m putting to you, so you can agree or disagree, whatever you want to do with it, what I’m putting to you is that he, Angelo, did not put his penis in your vagina at all in the morning?---No, he did.
In our view, the complainant’s evidence in the first VARE contained a clear narrative with respect to each act of penetration founding the charges of rape. Importantly, she made it clear in her evidence that, not only was she not consenting to sexual penetration, but that she conveyed her lack of consent to the applicant in unequivocal terms. Thus, she said that she ‘kept trying to push away but [she] was kind of stuck there with [the applicant] on top of [her] so [she] couldn’t get out’. She made it clear that she voiced her lack of consent aloud — repeatedly saying ‘no’, ‘no more’ and ‘please stop’ — but her protests were ignored. Thus, she said:
He had actually inserted his penis into my vagina and it hurt like hell. And I kept telling him no and I kept saying it and saying it and saying to the point where he – it was the only thing I could say and pretty much the rest of my vocabulary had just gone. … the only few words I said was, ‘No, no, no more. Please stop,’ but he didn’t listen. The only time he would stop was if he went out for another bong and a coffee, sometimes to go to the toilet. But then he’d come back and straightaway start again. And it was going on for .......... hours. And then I’ve eventually fallen asleep and I’ve woken up with his hands on me, around my stomach and ribs there. And then he’s – I’d only been awake for about five, 10 minutes. He’s gotten up, he’s had another bong and then he’s come back down and started on me again and I kept saying no.
Moreover, there was nothing in the cross-examination which detracted in any significant way from the burden of CJ’s essential account.
It will be remembered that one of the eight factors relied upon by the applicant’s counsel to support the contention that the jury’s verdicts are unsafe and unsatisfactory was the assertion that the complainant ‘never actually voiced her lack of consent’.[13] With respect, this assertion betrays a misunderstanding of the evidence. As we have indicated, in her evidence-in-chief (constituted by the first VARE), the complainant said that she repeatedly indicated her non-consent to the applicant. Counsel’s suggestion that the complainant did not actually voice her lack of consent appears to be based on the following questions and answers:
And I’d got to the point where I was suggesting to you, putting to you, that he, Angelo, started kissing you on your breasts and you agreed that that happened, correct?---Yes.
Now, at that point in time, you hadn’t said anything about ‘No, don’t do it, stop’, anything of that nature, correct?---I – like, I don’t know if I specifically voiced it. I know I was like, trying to say it, but it didn’t really come out.
…
What I want to put to you, is that at that stage, whilst you were involved in that – in that sort of – in the sort of activities that we’ve just been talking about, with Angelo. In other words getting undressed, he helping you to get undressed, he kissing you on the breasts - - -?---M’hmm.
At no time had you said at that stage, ‘No. Stop. Don’t do it’. Anything of that nature. What do you say?---I recall saying it, but that I’m not 100 per cent sure if the words came out.
Yes. Now what I suggest happened to you next, is that he, Angelo, put his finger in your vagina. What do you say about that?---Yes.
[13]See [20] above.
Significantly, however, the ‘point in time’ identified in the passages above was the point at which the applicant started kissing the complainant’s breasts, not the point of penetration. In subsequent answers to counsel’s questions the complainant made it abundantly clear that she repeatedly gave voice to her lack of consent to penetration. The following passages are illustrative:
All right. Now, what I want to suggest to you is this, that there was a time after he put his penis into you for the first time where you said to him, ‘No, stop’. What do you say about that?---Yes, I recall that.
What I want to put to you is that he immediately stopped, what do you say about that?---No, he didn’t stop at all.
…
All right. Now, what I want to suggest to you is that you and Angelo had sexual intercourse where he put his penis into your vagina on four or five times during the course of the evening, what do you say about that?---I recall it was more often than that, but that did happen.
What I’m putting to you is that on one of those occasions, on the very first occasion that he put his penis into your vagina, you asked him to stop and he stopped?---He did not stop. I asked him to stop and he did not.
Perhaps the most important of counsel’s eight factors was the complainant’s description of cunnilingus, and her evidence that the applicant had forced her to hold his head (that being something that she had not said in her first VARE). So much, counsel argued, had a negative impact on the complainant’s credibility, and showed that she was not a witness of truth. The relevant passage of cross-examination was as follows:
… Angelo, went down on you and performed oral sex on you?---Yes.
Now, what I want to suggest to you, is that when – when he was doing that, when he was – when he was going down on you, performing oral sex on you, you were holding on to his head. What do you say about that?---He forced me too [sic].
What, you say that he forced you to hold onto his head?---He physically grabbed my hand and – and made me hold my hands onto his head, to keep him down there.
At this stage, of course, you’re laying [sic] flat on your back on the bed, correct?---Yes.
He’s, by this stage he, Angelo, has moved down so that his head is between your legs, correct?---Yes.
…
All right. Well, what do you say happened?---He physically forced me to.
All right. Well, when you say, ‘He physically forced me to’ do that, what do you mean by that?---He grabbed me – my – he grabbed me by my wrist and then made me put my hands on the back of his head.
You agree that you never said anything remotely like that to the police, when you were describing this activity to them, in the VARE statement that you made to them?---It was ‘cause it was rather traumatic. It’s only just come to me.
All right. It’s not a situation where you’re just making it up as you go along?---No.
In our view, the jury were quite capable of assessing the evidence in the passages above, and determining whether it impinged on the truthfulness, credibility or reliability of the complainant’s evidence. There was nothing in this evidence which necessarily compelled the jury to consider that the complainant was ‘making it up’ and hence to reject it. Indeed, we consider that the jury might well have concluded that her explanation for failing to tell police that the applicant physically forced her to hold his head — that is, the events were ‘rather traumatic’ and it had ‘only just come to [her]’ — had an air of verisimilitude.
As to the first and second factors relied upon by the applicant’s counsel, they strike us as having scant relevance to the jury’s task, and no relevance to any issue that this Court has to determine. It may be that the complainant was the one who initiated conversation with the applicant, and, ostensibly relaxed, accompanied him back to his house. It is not contested, however, that she had run away and needed a place to stay, and put her trust in the applicant. Furthermore, nothing in the evidence would suggest that the complainant had any inkling that the applicant would seek to engage in sexual activity with her upon retiring to his home.
Counsel’s fourth factor was that the complainant helped to remove her jeans and underpants, so much indicating consent to sex. The evidence did not, however, unequivocally support the contention that CJ removed her jeans and underwear. The relevant portion of cross-examination was as follows:
… What I suggest happened to you next, is that he and you took your black jeans off. What do you say about that?---I’m not 100 per cent sure.
All right. And what I suggest to you, is that it was you who took your underwear, your underpants off. What do you say about that?---I’m not really sure.
...
But in any event, you’re recollection of things is that you can’t remember whether it was Angelo who took off your panties or whether you took them off, correct?---I am not 100 per cent sure, since I was stressing out way too much at that moment.
But even were the evidence capable of supporting the inference that the complainant removed items of her clothing, we cannot see that it could have had much bearing on her credit, given that she gave evidence that she was ‘frightened’, and ‘wasn’t necessarily happy to allow … that to happen’.
Similarly, the eighth factor relied upon by counsel — that the applicant told police that the complainant made noises of enjoyment while they were engaging in sexual activity — needs to be viewed against the backdrop of the evidence actually given. In cross-examination, there was the following exchange:
Now, what I want to suggest to you, is that there was a time when you then moved up on the bed, and put your vagina on his face. What do you say about that?---No, I never did that.
And that you were – ah – for a period of time, to give it it’s vernacular, you were riding his face. What do you say about that?---No, I never did that.
That at that stage, you were moaning and that you were making noises, that you were enjoying things. What do you say about that?---I don’t know about the noises, but I was not enjoying it.
The relevance of the sixth factor relied upon by counsel — that Dr Redenbach gave evidence that the complainant had ‘the indicia of a mature woman’ — escapes us. Counsel submitted that this evidence somehow affected the complainant’s credit. We cannot see that it could have. Beyond so saying, we find ourselves unable to subject counsel’s submissions on this aspect to any further analysis.
Finally, the simple answer to the seventh factor relied upon by counsel — that the applicant gave ‘a full, exculpatory account of the allegations’ in his record of interview with police — is that the assessment of the applicant’s exculpatory account in the interview was a matter within the jury’s province. Whether the jury accepted his account wholly or in part; whether they rejected it wholly or in part; or whether any of it caused them to entertain a reasonable doubt about the applicant’s guilt on any or all of the charges; was purely a matter for the jury. In our view, there was nothing about the contents of the interview itself, or the manner in which the applicant’s version sat with the other evidence, that must have compelled the jury to have a reasonable doubt about the applicant’s guilt.
Although, due to the way in which the applicant’s counsel advanced his case, we have in the foregoing analysis dealt individually with each of the factors relied upon by the applicant’s counsel in support of the contention that the verdicts are unsafe and unsatisfactory, it should not be thought that we have assessed the evidence in a piecemeal fashion. We have not. Having viewed the evidence as a whole, we consider that it was open to the jury to convict the applicant. There was nothing in the evidence that rendered the complainant’s evidence improbable, or which should have led the jury to have a reasonable doubt about her truthfulness, or her overall credibility or reliability.
For these reasons, the applicant’s ground must fail.
There is one final matter that we should mention, given the attention given to it in oral argument. As we understood one of his submissions, counsel for the applicant suggested that the members of the Court should view the recorded evidence of the complainant (and the record of interview). That submission was, it must be said, surprising, given that it appeared to fly in the face of recent — and very important — observations made by the High Court in Pell. It will be remembered that in that case, at the respondent’s suggestion, the members of this Court had viewed the recorded evidence of the complainant and other witnesses. The adoption of that course was deprecated by the High Court in the following passage:[14]
The position maintained by the respondent is not one that should generally be adopted by courts of criminal appeal. In SKA,[15] French CJ, Gummow and Kiefel JJ rejected the suggestion that the mere availability of a video-recording of a witness’ evidence at trial meant that the proper discharge of the function of the appellate court, to make its independent assessment of the evidence, necessitated a viewing of the recording. There may be cases where there is something particular in the video-recording that is apt to affect an appellate court’s assessment of the evidence, which can only be discerned visually or by sound. In such cases, there will be a real forensic purpose to the appellate court’s examination of the video-recording. But such cases will be exceptional, and ordinarily it would be expected that the forensic purpose that justifies such a course will be adopted by the parties, rather than upon independent scrutiny by the members of the court.[16]
Secondly, the assessment of the credibility of a witness by the jury on the basis of what it has seen and heard of a witness in the context of the trial is within the province of the jury as representative of the community.[17] Just as the performance by a court of criminal appeal of its functions does not involve the substitution of trial by an appeal court for trial by a jury, so, generally speaking, the appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent upon the evaluation of the witnesses in the witness-box. The jury performs its function on the basis that its decisions are made unanimously, and after the benefit of sharing the jurors’ subjective assessments of the witnesses. Judges of courts of criminal appeal do not perform the same function in the same way as the jury, or with the same advantages that the jury brings to the discharge of its function.
It should be understood that when the joint reasons in M v R[18] spoke of the jury’s ‘advantage in seeing and hearing the witnesses’ as being ‘capable of resolving a doubt experienced by a court of criminal appeal’ as to the guilt of the accused, their Honours were not implying that it was only because there were, at that time, no practical means of enabling a court of criminal appeal to see and hear the evidence of the witnesses at trial that the jury’s assessment of the credibility of the witnesses was of such potentially critical importance. The assessment of the weight to be accorded to a witness’ evidence by reference to the manner in which it was given by the witness has always been, and remains, the province of the jury. Rather, their Honours in M v R were remarking upon the functional or ‘constitutional’ demarcation between the province of the jury and the province of the appellate court. That demarcation has not been superseded by the improvements in technology that have made the video-recording of witnesses possible.
[14]Pell, 485-6 [36]–[38].
[15][SKA v The Queen (2011) 243 CLR 400 at] [27]–[35].
[16]SKA at [30]–[31]; see also at [116] per Crennan J.
[17]Kingswell v R (1985) 159 CLR 264 at 301; 62 ALR 161 at 187 per Deane J; Brown v R (1986) 160 CLR 171 at 201–2; 64 ALR 161 at 181–2 per Deane J; Katsuno v R (1999) 199 CLR 40; 166 ALR 159; [1999] HCA 50 at [49] per Gaudron, Gummow and Callinan JJ; Cheng v R (2000) 203 CLR 248; 175 ALR 338; [2000] HCA 53 [80] per Gaudron J; Alqudsi v R (2016) 258 CLR 203; 332 ALR 20; [2016] HCA 24 at [2], [58] per French CJ, at [195] per Nettle and Gordon JJ; R v Baden-Clay (2016) 258 CLR 308; 334 ALR 234; [2016] HCA 35 at [65] per French CJ, Kiefel, Bell, Keane and Gordon JJ.
[18][M v R (1994) 181 CLR 487 at 494; 126 ALR 325; at] CLR 494–5; ALR 329–30 per Mason CJ, Deane, Dawson and Toohey JJ.
Conclusion
It is regrettable to have to say that this application for leave to appeal against conviction was wholly bereft of merit. Leave to appeal against conviction should be refused.
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