Day v R

[2017] NSWCCA 192

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Day v R [2017] NSWCCA 192
Hearing dates:	19 May 2017
Date of orders:	11 August 2017
Decision date:	11 August 2017
Before:	Johnson J at [1]; Rothman J at [120]; Lonergan J at [126]
Decision:	1. The Applicant is granted leave to rely upon Ground 1 on the conviction appeal. 2. The Applicant is refused leave to rely upon Ground 5 on the conviction appeal. 3. Appeal against conviction is dismissed; 4. The Applicant is granted leave to appeal against sentence. 5. The appeal against sentence is dismissed.
Catchwords:	CRIMINAL LAW – appeal against conviction – offence of having sexual intercourse without consent contrary to s.61I Crimes Act 1900 – leave sought to contend that miscarriage of justice resulted from failure to direct jury concerning intoxication and claim of honest and reasonable but mistaken belief – reliance upon Queensland authority – jury properly directed in accordance with s.61HA and s.428D Crimes Act 1900 (NSW) – no error demonstrated – leave to rely upon this ground refused under Rule 4 Criminal Appeal Rules – whether verdict unreasonable – criticisms of aspects of Complainant’s evidence – held that it was open to jury to be satisfied beyond reasonable doubt of Applicant’s guilt – appeal against conviction dismissed     CRIMINAL LAW – appeal against sentence – Applicant sentenced to imprisonment for five years and nine months – non-parole period of three years with a balance term of two years and nine months – whether sentence was manifestly excessive – held sentence not manifestly excessive – appeal against sentence dismissed
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Crimes Amendment (Consent - Sexual Assault Offences) Act 2007 Criminal Appeal Act 1912 Criminal Procedure Act 1986 Criminal Appeal Rules
Cases Cited:	Abdelmeseeh v R [2017] NSWCCA 312 Atai v R [2014] NSWCCA 210 Badans v R [2012] NSWCCA 97 Cowling v R [2015] NSWCCA 213 Dickson v R [2017] NSWCCA 78 Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 DJB v R [2007] NSWCCA 209 GAX v The Queen (2017) 91 ALJR 698; [2017] HCA 25 Greenhalgh v R [2017] NSWCCA 94 Mills v R [2017] NSWCCA 87 Muldrock v The Queen (2011) 224 CLR 120; [2011] HCA 39 Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 R v Alcazar [2017] NSWCCA 51 R v Greenwood [2014] NSWCCA 64 R v Gulliford (2004) 148 A Crim R 558; [2004] NSWCCA 338 R v JRB [2006] NSWCCA 371 R v Murray (1987) 11 NSWLR 12 R v O’Loughlin [2011] QCA 123 R v Petersen (2008) 6 DCLR(NSW) 283 Silva v R [2016] NSWCCA 284 Tabbah v R [2017] NSWCCA 55 The Queen v Baden-Clay [2016] 258 CLR 308; [2016] HCA 35 Tonari v R (2013) 237 A Crim R 490; [2013] NSWCCA 232
Texts Cited:	---
Category:	Principal judgment
Parties:	Paul Grahame Day (Applicant) Regina (Respondent)
Representation:	Counsel: Mr AJ Kimmins (Applicant) Mr SA Hughes (Respondent)   Solicitors: Bosscher Lawyers (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2014/46596
Publication restriction:	---
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: --- Citation: --- Date of Decision: 5 February 2015 (conviction) 8 April 2015 (sentence) Before: His Honour Judge Norrish QC File Number(s): 2014/46596

Judgment

1. JOHNSON J: The Applicant, Paul Grahame Day, seeks leave to appeal against conviction and sentence after a trial before his Honour Judge Norrish QC and a jury at the Sydney District Court upon a charge of having sexual intercourse without consent contrary to s.61I Crimes Act 1900.

Conviction and Sentence

2. The Applicant’s trial commenced on 29 January 2015 with the jury returning a verdict of guilty on 5 February 2015.

3. On 8 April 2015, his Honour Judge Norrish QC sentenced the Applicant to imprisonment for five years and nine months comprising a non-parole period of three years commencing on 4 February 2015 and expiring on 3 February 2018 with a balance of term of two years and nine months commencing on 5 February 2018 and expiring on 3 November 2020. The maximum penalty for a s.61I offence is imprisonment for 14 years with a standard non-parole period of seven years applying to the offence.

Grounds of Appeal

4. By Notice filed on 23 December 2016, the Applicant communicated the following grounds of appeal:

1. Ground 1 - That the jury’s verdict was unreasonable and cannot be supported by the evidence.

2. Ground 2 - the summing up was unfair and resulted in a miscarriage of justice.

3. Ground 3 - The Applicant seeks leave to appeal against the sentence imposed on the ground that it was manifestly excessive.

4. Ground 4 - No complaint was made by defence counsel at the trial about the directions, and the grounds involved mixed fact and law. If leave is required under Rule 4 of the Criminal Appeal Rules, then leave is sought.

5. At the hearing of the appeal on 19 May 2017, the Applicant abandoned the second ground of appeal. Mr Kimmins, counsel for the Applicant, accepted that the matters contained in the so-called Ground 4 should be treated as an application for leave where leave is required.

6. At the hearing of the appeal, the Crown did not oppose the Applicant being granted leave to add a further ground of appeal against conviction in the following terms:

1.    Ground 5 - There has been a miscarriage of justice in that the jury was not directed that they had to consider whether the prosecution had disproved that the Applicant had an honest and reasonable, but mistaken belief that the person he had penetrated was [DG], the Applicant’s then partner.

An Overview of the Case

7. At about 12.30 pm on 18 May 2013, the complainant, MF, attended a baby shower at her friend, DG’s, home unit in Cronulla. DG was the partner of the Applicant. The expecting mother was KR, a mutual friend of the two women. Also present was KR’s sister, KP.

8. The Applicant was not present during the party which took place between 1.00 pm and 4.00 pm. At the conclusion of the party, most of the guests left, but those mentioned above remained.

9. At about 4.30 pm, KR’s husband arrived at the unit with a friend. They had some beer with them. DG went out and purchased some wine before returning with it to the Cronulla unit.

10. Those remaining at the unit socialised for a period and MF consumed four glasses of champagne, most of a bottle of wine and some beer.

11. The Applicant arrived home at the unit at about 5.00 pm. He socialised with those present including MF. He left again at about 8.00 pm.

12. At about 11.00 pm, MF went to sleep in the spare bedroom of the unit.

13. Around 1.00 am, MF awoke. She was still clothed but her pants had been pulled to the side. The Applicant was on top of her with his penis inside her. MF said it took about five to 10 seconds from the time she woke to the time she pushed the Applicant away.

14. MF immediately woke DG shouting “Your boyfriend just had his dick inside me”. MF repeated this claim soon after to others within the unit.

15. In the course of the conversation which took place at this point, the Applicant told KP “I was in the kitchen eating, and I heard her screaming and followed her”. The Applicant later participated in an electronically recorded interview with police. He stated there that he had mistakenly gone into the wrong bedroom and that he believed it was DG in the bed. He denied penetrating MF. He said that he had consumed a substantial amount of alcohol.

16. The Applicant did not give evidence at the trial, nor did he call any witnesses in the defence case.

Ground 5 - Claim of Miscarriage of Justice Arising From Failure to Direct Jury Concerning Honest and Reasonable But Mistaken Belief

17. The Court granted leave to the Applicant to rely upon this ground of appeal at the hearing on 19 May 2017.

18. Mr Kimmins submitted that the question which arose on the facts of this case was whether the Crown had disproved that the Applicant had an honest and reasonable (but mistaken) belief that the person he penetrated was his partner, DG. He conceded that the matter had not been raised at trial.

19. Mr Kimmins relied upon the decision of the Queensland Court of Appeal in R v O’Loughlin [2011] QCA 123 with respect to the relevance of the Applicant’s intoxication to the existence of an honest belief about consent. Muir J (McMurdo P and Chesterman JA agreeing) said at [28]-[29]:

“[28]    The appellant’s intoxication was relevant to the existence of an honest belief about consent. ‘A condition of inebriation … may help to induce a belief that a woman is consenting to intercourse; to that extent it may tend to show the belief to be genuine or ‘honest’’ [R v Hopper [1993] QCA 561 at 10], and ‘Intoxication is, no doubt, relevant to the question of whether an accused person has an actual belief’ [Daniels v R (1989) 1 WAR 435 at 445 per Kennedy J].

[29]    What s 24 requires is ‘both a subjectively honest and an objectively reasonable mistaken belief’ [R v Mrzljak [2005] 1 Qd R 308; [2004] QCA 420 at [21].’”

20. Mr Kimmins submitted that the Court should grant the Applicant leave under Rule 4 to rely upon this ground as it was said to involve a fundamental issue in the context of the trial of the Applicant.

21. The Crown submitted that this ground of appeal overlooked a number of provisions in the laws of this State, including ss.61HA(3) and 428D Crimes Act 1900. The Crown submitted that the proposition advanced in Ground 5 was not tenable in the circumstances of this case and that this was the likely explanation for trial counsel not having raised the issue at trial.

Decision

22. The Applicant accepts that he requires an extension of time to rely upon the ground and that leave under Rule 4 Criminal Appeal Rules is also necessary. It is appropriate to consider the ground on its merits for the purpose of determining whether the Applicant should be permitted to rely upon it on the appeal.

23. The trial had been conducted for the Applicant principally upon the basis that the jury could not be satisfied beyond reasonable doubt that intercourse took place. It was the Applicant’s case (as contained in his police interview) that he had entered the wrong bedroom in an intoxicated state and had got into bed with a person he thought was DG, but that intercourse had not taken place.

24. In the course of the summing up, the trial Judge described the trial issues in the following way (SU31):

“The issues that principally arise, although you have to have regard to all the evidence in terms of the matters that the Crown is required to prove, appear to be whether the accused had sexual intercourse with the complainant as the complainant alleged, and if so, whether the accused knew the complainant was not consenting, or was reckless to the fact that she was not consenting, in accordance with the directions of law I have given you.”

25. The trial Judge gave the jury detailed (and impeccable) written and oral directions on the elements of the offence.

26. The Applicant was charged with an offence under s.61I Crimes Act 1900 which provides:

“61I    Sexual assault

Any person who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 14 years.”

27. Section 61HA Crimes Act 1900 makes express provision concerning the issue of consent in relation to sexual assault offences. The section states:

“61HA Consent in relation to sexual assault offences

(1)    Offences to which section applies This section applies for the purposes of the offences, or attempts to commit the offences, under sections 61I, 61J and 61JA.

(2)    Meaning of consent A person consents to sexual intercourse if the person freely and voluntarily agrees to the sexual intercourse.

(3)    Knowledge about consent A person who has sexual intercourse with another person without the consent of the other person knows that the other person does not consent to the sexual intercourse if:

(a)    the person knows that the other person does not consent to the sexual intercourse, or

(b)    the person is reckless as to whether the other person consents to the sexual intercourse, or

(c)    the person has no reasonable grounds for believing that the other person consents to the sexual intercourse.

For the purpose of making any such finding, the trier of fact must have regard to all the circumstances of the case:

(d)    including any steps taken by the person to ascertain whether the other person consents to the sexual intercourse, but

(e)    not including any self-induced intoxication of the person.

(4)    Negation of consent A person does not consent to sexual intercourse:

(a)    if the person does not have the capacity to consent to the sexual intercourse, including because of age or cognitive incapacity, or

(b)    if the person does not have the opportunity to consent to the sexual intercourse because the person is unconscious or asleep, or

(c)    if the person consents to the sexual intercourse because of threats of force or terror (whether the threats are against, or the terror is instilled in, that person or any other person), or

(d)    if the person consents to the sexual intercourse because the person is unlawfully detained.

(5)    A person who consents to sexual intercourse with another person:

(a)    under a mistaken belief as to the identity of the other person, or

(b)    under a mistaken belief that the other person is married to the person, or

(c)    under a mistaken belief that the sexual intercourse is for health or hygienic purposes (or under any other mistaken belief about the nature of the act induced by fraudulent means),

does not consent to the sexual intercourse. For the purposes of subsection (3), the other person knows that the person does not consent to sexual intercourse if the other person knows the person consents to sexual intercourse under such a mistaken belief.

(6)    The grounds on which it may be established that a person does not consent to sexual intercourse include:

(a)    if the person has sexual intercourse while substantially intoxicated by alcohol or any drug, or

(b)    if the person has sexual intercourse because of intimidatory or coercive conduct, or other threat, that does not involve a threat of force, or

(c)    if the person has sexual intercourse because of the abuse of a position of authority or trust.

(7)    A person who does not offer actual physical resistance to sexual intercourse is not, by reason only of that fact, to be regarded as consenting to the sexual intercourse.

(8)    This section does not limit the grounds on which it may be established that a person does not consent to sexual intercourse.”

28. Section 61HA was introduced into the Crimes Act 1900 by the Crimes Amendment (Consent - Sexual Assault Offences) Act 2007. In the second reading speech for the 2007 Act, the Attorney-General, the Hon John Hatzistergos, observed that “Modernisation of the law relating to consent, in particular, is aimed at bringing about both a cultural shift in the response to victims of sexual assault by the community and by key participants within the criminal justice system” (Hansard, Legislative Counsel, 7 November 2007).

29. Section 61HA was considered in Tabbah v R [2017] NSWCCA 55, where Button J (Hoeben CJ at CL and Payne JA agreeing) said at [137]-[140]:

“137 First, as can be seen from sub-section (1), the section as a whole applied to the trial of the applicant on the count brought pursuant to s 61I of the Crimes Act.

138    Secondly, the section deals with the subject matter of both the state of mind of the complainant and the state of mind of the accused that needs to be proven beyond reasonable doubt in a sexual assault trial to which the section applies.

139    Thirdly, the latter topic is not without its complications: as sub-section (3) shows, the inculpatory state of mind of an accused person can be proven in three different ways, the last of which may be characterised as including objective culpability: see [Decision Restricted] [2016] NSWCCA 52 at [155]. It is separately established that recklessness on the part of an accused person with regard to a sexual offence can be proven in a number of ways, including complete non-advertence: see R v Kitchener (1993) 29 NSWLR 696 at 702, referring to Henning v R (New South Wales Court of Criminal Appeal, 11 May 1990, unrep) at 31.

140    Fourthly, the section as a whole is an unusual amalgam of concepts. In sub-section (2), it defines consent (and therefore, conversely, lack of consent) in a clear and concise way. In the latter part of sub-section (3), it mandates things that must and must not be taken into account by the jury in assessing whether the Crown has proven the requisite mental element on the part of the accused. In sub-sections (4) and (5), it conclusively defines circumstances in which a complainant is to be regarded as not consenting. In the latter part of sub-section (5), it reverts to the topic of the inculpatory state of mind of the accused, and defines a further basis upon which that may be established. In sub-section (6), it sets out a non-exclusive list of ‘grounds’ that may lead to a conclusion by the jury that a complainant was not consenting. In sub-section (7), it is made clear that lack of ‘actual physical resistance’ on the part of a complainant does not, of itself, establish consent on his or her part. Finally, in sub-section (8), it is emphasised that this section (including the list in sub-section (6)) is not exclusive of other grounds on which it may be established that a person does not consent to sexual intercourse.”

30. The Applicant sought to contend in this Court that, in his intoxicated state, he mistakenly entered the wrong bedroom, mistook MF for his partner, DG, and that this scenario was capable of providing him with a line of defence based on honest and reasonable mistake as to consent arising from his mistaken identity of his sexual partner, even if the jury was satisfied that intercourse took place and that MF had not consented.

31. Clearly, the jury was satisfied beyond reasonable doubt that intercourse had occurred and that MF had not consented to that intercourse.

32. A fundamental difficulty for the Applicant is that what was said in R v O’Loughlin concerning intoxication (at [19] above) is not the law in New South Wales. It is a critical component of the Applicant’s present argument that he returned to the unit in the late evening in a heavily intoxicated state and entered the wrong bedroom where he got into bed with a woman whom (on the Applicant’s argument) he believed to be his partner, DG.

33. There are two statutory provisions which stood in the way of the Applicant relying upon his state of self-induced intoxication.

34. Firstly, Part 11A Crimes Act 1900 relates to intoxication. Provision is made in this Part for offences of specific intent (s.428B) and general intent (s.428D). It is noteworthy that an offence under s.61I Crimes Act 1900 is not included in the Table containing examples of offences of specific intent which follows s.428B. As a s.61I offence is not an offence of specific intent, self-induced intoxication of an accused person cannot be taken into account in determining whether the person had the mens rea for the offence: s.428D; R v Gulliford (2004) 148 A Crim R 558; [2004] NSWCCA 338 at 582 [127]; DJB v R [2007] NSWCCA 209 at [68]; R v Petersen (2008) 6 DCLR(NSW) 283 at 286 [16]-[17], 287-288 [29]-[32].

35. Further, s.61HA(3)(e) excluded from consideration any self-induced intoxication of an accused person in considering whether the person has knowledge of lack of consent on the part of a complainant.

36. In considering whether the Applicant knew that MF was not consenting or was reckless as to whether she consented, the Applicant was to be taken to be sober: s.61HA(3)(a), (b) and (e). Likewise, in considering whether the Applicant had no reasonable grounds for believing MF had consented, he was to be taken to be sober: s.61HA(3)(c) and (e).

30. Further, it would have been necessary for the jury to consider any steps which the (sober) Applicant had taken to ascertain whether MF had consented: s.61HA(3)(d). There was no evidence that the Applicant had taken any steps in this regard. Of course, he denied that intercourse had taken place.

31. A complainant does not consent to intercourse if the person did not have the opportunity to consent because the person was unconscious or asleep: s.61HA(4)(b). In this case, it was the evidence of MF that she was asleep and awoke to find that the Applicant had penetrated her vagina with his penis. It was her emphatic evidence that she had not consented to this occurring.

32. The Applicant was not entitled to proceed upon the basis that DG must be taken to consent to intercourse with him just because she was his partner. Of course, it is open to a spouse or partner to refuse to consent to sexual activity. Consent cannot be taken for granted. The Applicant took no steps to ascertain whether the woman in the bed (even if it was DG) consented to having intercourse with him: s.61HA(3)(d).

33. The jury was directed in accordance with s.61HA in this trial. The properly directed jury determined the issue of the Applicant’s knowledge of lack of consent adversely to the Applicant.

34. The Applicant’s argument in support of Ground 5 was not a viable one at trial. Section 61HA(3)(e) required that the Applicant be treated as being sober. His entry into the wrong room followed by his actions in getting into bed and having intercourse with a sleeping woman of whom he made no enquiry as to consent meant that this argument would have been doomed to failure if advanced at trial. No doubt that explains why it was not advanced by trial counsel.

35. No error has been demonstrated in the directions given to the jury nor has it been demonstrated that a miscarriage of justice occurred. It has not been shown that the Applicant lost a real chance of acquittal.

36. Having considered the merits of this ground of appeal, I do not consider that it is arguable. In these circumstances, no purpose is served by extending time to the Applicant for the ground to be relied upon. In any event, the Applicant ought be refused leave under Rule 4 Criminal Appeal Rules to rely upon this ground: Greenhalgh v R [2017] NSWCCA 94 at [7]ff, [47]-[48].

37. I refuse the Applicant leave to rely upon the fifth ground of appeal.

Ground 1 - The Unreasonable Verdict Ground

45. Counsel for the Applicant submitted that the verdict of guilty was unreasonable and cannot be supported having regard to the evidence so as to warrant the quashing of the conviction under s.6(1) Criminal Appeal Act 1912. It was submitted for the Applicant that this was a trial that depended ultimately upon an assessment of MF’s credibility. It was argued that there were no direct witnesses to the incident, nor was there any corroborating medical evidence given nor was a report made to the police until five months after the incident.

46. Mr Kimmins submitted that the point of divergence in the accounts given by MF and the Applicant was relatively narrow. It was not contested that the Applicant entered the room in which MF was sleeping at the time alleged. MF alleged that the Applicant moved aside her underwear and pushed his penis into her vagina. The Applicant stated that he did not take his clothes off or penetrate her with his penis.

47. It was submitted that there were troubling features to MF’s evidence in that:

1. she gave two different accounts to separate people of the position she was in when she woke up;

2. on her own account, she admitted that she did not know if what she remembered was a reconstruction, although she added that she was confident that she could remember it very clearly;

3. she expressed doubts to DG about what had happened the next morning, stating that she felt as though she was doubting herself and felt some confusion;

4. she conceded that, by 11.00 pm that evening, she had consumed a fair amount of alcohol and had “more hazy recollections” about events earlier in the evening.

48. Counsel for the Applicant submitted that the frailties in MF’s evidence must have caused the jury some level of disquiet. It was submitted that the jury had the benefit of the Applicant’s account to police, which was consistent with innocence. It was submitted that a rational assessment of the evidence adduced at the trial leaves open the significant possibility that the Applicant was not guilty of the offence with which he was charged.

49. The Crown submitted that the jury had the advantage of seeing MF give evidence, together with other witnesses whose evidence was significant for the resolution of the issues in the trial. Submissions were made by reference to particular parts of the evidence of MF in support of the argument that it was well open to the jury to accept her evidence as being cogent and reliable.

50. The Crown submitted that MF had made immediate complaint and there was evidence of distress (indeed anger) on her part immediately following the event. The Crown pointed to other evidence as well which was pertinent to the jury’s assessment of the credibility and reliability of the evidence of MF.

51. The Crown submitted that the prosecution case was compelling and that it was unsurprising that the jury did not entertain a reasonable doubt as to the Applicant’s guilt.

Decision

52. The Applicant asserts that the verdict of the jury was unreasonable or cannot be supported having regard to the evidence. When considering whether the verdict was unreasonable, the Court is to make its own independent assessment as to the sufficiency and quality of the evidence.

53. This ground invokes the first limb of s.6 Criminal Appeal Act 1912 and, not being confined to a question of law alone, lies only with a grant of leave: Silva v R [2016] NSWCCA 284 at [22]. Leave was not separately addressed by the parties. Given that there was full argument, there should be a grant of leave to advance this ground of appeal.

54. The principles to be applied by this Court with respect to an unreasonable verdict ground were summarised by Bathurst CJ (Fullerton J and myself agreeing) in Dickson v R [2017] NSWCCA 78 at [84]-[85]:

“84    The principles on which a court will set aside a verdict as unreasonable are well established. In SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [11]-[14], the Court stated the approach to be adopted was that laid down in M v The Queen (1994) 181 CLR 487; [1994] HCA 63 at 492-494, namely that the Court is required to make its own ‘independent assessment of the evidence’. If after taking into account the primary responsibility of the jury in determining the question of guilt or innocence and the benefit of the jury having seen or heard the evidence, the Court is left in doubt as to the reasonableness of the verdict, the verdict should be set aside. In M supra the Court also stated (at 494) that ‘[i]n most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced’ and ‘[i]t is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt … that the court may conclude that no miscarriage of justice occurred’: see also MFA v The Queen (2002) 213 CLR 608; [2002] HCA 53 at [59].

85    As was pointed out by Hayne J in Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113] (Gleeson CJ and Heydon J agreeing), for a verdict to be unreasonable it is not enough that a review of the evidence shows only that it was possible for a jury to reach a different conclusion. However, for a Court to conclude there was no miscarriage, it is not sufficient that there was evidence on which a jury could convict. If after giving full weight to the primacy of the jury, the Court is left in reasonable doubt as to the verdict, it is only where the jury’s advantage in seeing and hearing the evidence is capable of resolving the doubt that the Court can conclude that there was no miscarriage of justice.”

55. In The Queen v Baden-Clay [2016] 258 CLR 308; [2016] HCA 35, the High Court of Australia stated at 329-330 [65]-[66] (footnotes omitted):

“65. It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is ‘the constitutional tribunal for deciding issues of fact.’ Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury's verdict on the ground that it is ‘unreasonable’ within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. Further, the boundaries of reasonableness within which the jury's function is to be performed should not be narrowed in a hard and fast way by the considerations expressed in the passages from the reasons of the Court of Appeal explaining its disposition of the appeal.

66.   With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court ‘must always be whether the [appeal] court 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."

56. The Court is required to review the whole of the evidence to determine whether it was open to the jury to hold that the Applicant's guilt had been proved beyond reasonable doubt: GAX v The Queen (2017) 91 ALJR 698; [2017] HCA 25 at 702 [20].

57. With these principles in mind, it is appropriate to consider the evidence adduced at the trial. I have set out earlier (at [7]-[15]) a brief overview of the Crown case at trial. As noted, the Applicant did not give evidence nor adduce evidence at the trial.

The Evidence of MF

58. In circumstances explained shortly in the overview, MF went to bed in the spare bedroom in the Cronulla unit. The other bedroom of the unit was utilised by DG and the Applicant. MF went to bed dressed in her t-shirt and underpants. She described what happened thereafter in evidence-in-chief (AB287-288):

“Q. What's the next thing you remember after you went to bed? Just take it slowly. You do tend to talk a little bit fast.

A. Yeah, sorry. I woke up to the feeling of him pushing his penis inside me and then when I opened my eyes I saw him - well, I woke up to that feeling, and then when I opened my eyes I saw him there.

Q. When you say you woke up to that feeling, what did it feel like?

A. It felt like him pushing his penis right inside me.

Q. Did it feel good or bad, or did it …

A. No, it just woke me up. It felt like it was just there.

Q. Did you notice whether or not he was wearing any clothes?

A. He was wearing something on top. I don't know whether he had anything on the bottom. I don't know.

Q. What about your clothes? What state were they in at that …

A. He pulled my pants to the side. I still was dressed in what I had on when I went to bed.

Q. How were you positioned when you woke up?

A. He had my - he'd pulled the doona off. He had my legs pulled apart and he was positioned in the middle of my legs but he was sort of - I don't know how to describe this, sort of like on his haunches but sort of down.

Q. On his haunches?

A. Well, sort of, like he had his legs up underneath himself, but then in between my legs.

Q. Yes?

A. Yeah, but with my legs pulled around him.

Q. Did you say anything to him when you saw him doing that?

A. No.

Q. Did he say anything?

A. No.

Q. Were you able to see his face?

A. Yes.

Q. Did you notice anything about his face?

A. No, he wasn't - he was sort of just - it was like he was just focused on himself. His head was in my direction but I couldn't really - I didn't feel like he was looking at me.

Q. Can you explain what happened as soon as you realised that was happening?

A. I pushed him off and ran into [DG’s] room.”

59. MF estimated that the period of time from when she woke up to the point when she pushed the Applicant off her was “anywhere from five to ten seconds” (AB293).

60. MF stated that at no stage did she give the Applicant consent for him to have sexual intercourse with her (AB300).

61. When MF went to DG’s bedroom after the incident, the door was shut. She entered and found DG asleep with the light on. She yelled at DG to wake up, but she did not. MF ran out of the room and encountered the Applicant in the hallway. She was asked (AB289):

“Q. Did you exchange words with him at that point?

A. Yes, I did. I ran out and I got a rush of anger and I yelled into his face that I always knew that he was a slime ball, or something to that effect.

Q. Did he say anything back to you?

A. Yes, he didn't yell at me though. He just said - he just stared me down and he said, "She won't believe you," or he said something to that effect; they won't believe, or, believe it.”

62. MF returned to DG’s room and shook her awake. She told DG “Your boyfriend just had his dick inside me”. DG appeared to be in shock and said “What did you just say?”. DG got out of bed and came into the hallway outside of the bedroom (AB289).

63. MF said that at this point “Everything got a bit crazy”. She was probably yelling, but she could not recall what she was yelling. MF sent a text message to her friends, KR and LR, who lived in a neighbouring unit block and also rang them. KR and LR returned to DG’s unit. When they knocked at the door and MF went to answer it, MF stated that the Applicant pushed past her and pushed her out of the way so that she could not open the door and “he called me either a moron or an idiot and then he just opened the door so that I couldn’t open it” (AB290).

64. At some point, MF was in the second bedroom with KL gathering her belongings together. She pulled down her pants and showed her vagina to KL (AB290-291).

65. MF went with KL to her unit where she stayed for the remainder of the night. Whilst at that unit, MF told KL what the Applicant had done to her (AB291-292).

66. MF spoke to DG, KP, KR and LR about whether she would report the matter to the police. She said that she “just wanted to forget about it and just move on” and that she “was just intimidated by the whole thing” and that “nothing like that had ever happened to me before” and “I didn’t want to go to the police” (AB293-294).

67. At a later stage, MF decided to report the matter to the police “because I was hung up about it” and “I was consumed by it” and she reported the matter to police in October 2013 (AB294).

68. Under cross-examination, MF agreed that by 11.00 pm on 18 May 2013, she had consumed a fair amount of alcohol, including champagne, wine and beer (AB304).

69. With regard to the decision to go to the police five months later, MF was asked in cross-examination (AB308):

“Q. In terms of going to the police, was that a decision that you, in effect, made one day and then the next moment you're at the police station, or is that something that you gradually built up to?

A. I built up to that because I had been seeing a psychologist about it, because my head had been scrambled by the whole thing and I was still confused about everything, and so I think once I straightened out a few things then I felt that I could go to the police.”

70. MF was asked in cross-examination (AB314):

“Q. The situation is, [MF], is it not, that you were very intoxicated on this particular evening. Correct?

A. I was quite intoxicated at one point.

Q. The fact of the matter is that because of the state of your intoxication you don't have a clear idea of what happened on this particular evening?

A. I have a very clear idea of the thing that woke me up.

Q. I suggest to you that what woke you up was the presence of Paul Day and that as a result of that presence you jumped to conclusions?

A. No.

Q. I suggest to you that at no stage did Mr Day have his penis inside of your vagina. Do you agree or disagree with that?

A. Disagree.”

71. It was put to MF in cross-examination that she told DG that when the Applicant’s penis was inside her vagina, she was lying on her side with one knee brought up at a right angle to her body with the Applicant behind her. MF responded “I said that I felt like I was going crazy because I couldn’t remember the exact thing at that point in the morning. There was a couple of hours when I just couldn’t remember some things”. MF said she had a “block” and was “traumatised … I couldn’t - it was like I was just shutting down” (AB315).

72. MF was asked in cross-examination (AB316-317):

“Q. When did you become unblocked?

A. I know that I had taken holidays the week after. I had one week left of work and I had holidays. I remembered everything by then. I went away and I knew that I was talking about it and I could recall everything.

Q. Were you able to, you say, you recall everything in a process of just thinking about it or did it involve speaking to people?

A. I was speaking to people about it.

Q. Who were you speaking to?

A. I was speaking to a friend that I went away with.

Q. Were you talking about these particular options of perhaps being on your side or being on your back?

A. No, I wasn't. I just knew that I remembered it very clearly at that point.

Q. Is it the case, [MF], that what you remember is actually a reconstruction that you put together?

A. No.

Q. How can you be sure of that?

A. I guess I don't know, but I'm just confident that I know exactly what it was. I just remember it very clearly.

Q. Although in the hours afterwards, you weren't able to access those details?

A. That morning, the next morning, yes, there were things that I just couldn't access.

Q. Including the details of what had happened, the actual mechanics of what had happened?

A. My body remembered it. I remembered it. I knew that it had happened, but I couldn't put the visions with it, I couldn't access it.”

73. In re-examination, MF said that after feeling “quite intoxicated” earlier in the evening, she was feeling “OK” at the time she went to bed (AB317-318).

74. MF said in re-examination that the following morning she had felt uncertain about whether the Applicant had been positioned on top of her or behind her. At no time that morning, or at any time, was she uncertain as to whether the Applicant had his penis in her vagina (AB318).

Evidence of Other Witnesses

75. A number of witnesses gave evidence of complaint being made by MF and of statements made by the Applicant.

76. DG gave evidence that she was woken by MF who was shouting repeatedly “Wake up, wake up. He had his dick in me” (AB429). DG yelled at the Applicant “Did you do this?”. She could not recall the Applicant’s response, but said “I remember him just being, kind of stunned, in shock looking and that may have been why he was shaking his head as well. I don’t know … He wasn’t answering questions but not because he was calm, he was just, looking around … He looked like a deer in the headlights” (AB430-431). DG agreed that the Applicant seemed drunk (AB449).

77. DG gave evidence as well of other interaction with MF and the Applicant in the period after the events giving rise to the charge.

78. KP gave evidence of statements she heard the Applicant make the following morning in DG’s unit. She heard the Applicant say “Nothing happened. I was in the kitchen eating, and I heard her screaming and followed her” (AB463). KP gave evidence of other discussions that took place between DG and the Applicant in the period following the incident.

79. KR gave evidence that, in the middle of the night following the baby shower, she received a call from MF telling her that she “needed to get over there” and “He had his dick in me” (AB474-475).

80. KR went straight over to DG’s unit and, when she entered the door, MF said “Did you just hear him? He called me a moron”. The Applicant said something about MF being “a crazy friend, her crazy friend” and MF slapped him and said to him “You put your dick in me” and then repeated to KL, “He put his dick in me”. At this point, DG came running out of the bedroom and started slapping the Applicant on the face, arms and body at which time MF said “He’s lying. You believe me, don’t you?” and then repeated to the Applicant “You put your dick in me” (AB475-476).

75. KR gave evidence of further conversations with MF and others in the period after the incident, including discussion with MF as to whether she should report the matter to the police.

The Applicant’s Account in His Interview

82. The Applicant was arrested on 13 February 2014 and agreed to participate in an electronically recorded interview which was played to the jury during the trial. He stated that, when he got home to the Cronulla unit late in the evening, he intended to go into the room he shared with DG, but went instead into the wrong room. He stated that he remained fully dressed and as soon as he realised it was not DG, both he and MF left the room.

83. He agreed that MF had stated that he had placed his penis in her vagina, but he said that that had not occurred. He said that he “was just happy to be home with my partner and I was jumping into bed with my partner” (Q/A405) (AB186). He said “I was trying to, probably, make her wake up” and then realised it was not DG (Q/A414-415) (AB186).

84. The Applicant denied to police that he put his penis into MF’s vagina and denied having any form of sexual intercourse or sexual relationship with her (Q/A523-533) (AB193-194).

Is the Verdict Unreasonable?

85. It may be seen then that the Applicant’s case at trial was that he had entered the wrong bedroom by mistake and had laid down on the bed, but that there had been no sexual contact whatsoever with MF, let alone that he placed his penis into her vagina.

86. It is appropriate to return to a number of the criticisms advanced on behalf of the Applicant of the evidence of MF. These criticisms included:

1. the fact that MF had told DG that she was laying on her side when she awoke with the Applicant inside her, with this being different to her evidence that the Applicant was positioned in the middle of her legs with him on his haunches;

2. an acceptance by MF that her memory of events was clouded and possibly contained an element of reconstruction;

3. the statement by MF that there were a couple of hours where she could not remember some things;

4. evidence concerning possible dreaming by MF that oral sex occurred during the incident;

5. MF’s admitted consumption of alcohol and her hazy recollection of events.

87. It is necessary for the Court to have regard to the totality of the evidence before the jury. In this trial, the evidence of MF was accompanied as well by significant evidence from other young women concerning immediate complaint by MF that penile vaginal penetration had occurred.

88. Substantial extracts from the evidence have been provided earlier to allow a word picture to be formed as to what happened in the Cronulla unit immediately after the events in the bedroom during which only MF and the Applicant were present. The jury had the considerable advantage of seeing MF give evidence, as well as the various young women who were there at the time of critical events following the bedroom incident.

89. In addition to the making of an immediate complaint, there was evidence of distress (including visible anger) on the part of MF immediately following the incident.

90. A complainant who has been sexually assaulted may display outward signs of distress after the assault, and evidence of distress tended to prove that MF was sexually assaulted: Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 at 321 [78]. The spontaneity of the complaint, and its consistency with other aspects of MF’s account, bears upon its probative strength: Papakosmas v The Queen at 311 [41]. In circumstances where a critical issue in the trial was whether penile vaginal penetration had occurred, the complaint evidence was highly probative of a critical issue in the trial and was likely to be reliable: Papakosmas v The Queen at 327-328 [98].

91. With respect to criticisms made of the evidence of MF concerning her own processes of self-questioning after the event and the delay in her reporting the matter to police, it is necessary to keep in mind the experience of the criminal courts that victims of sexual assaults do not necessarily respond in ways that accord with some mechanical or predetermined view as to how a victim of sexual assault should respond: Tonari v R (2013) 237 A Crim R 490; [2013] NSWCCA 232 at 518 [192]; s.294(2) Criminal Procedure Act 1986.

92. In addition, the evidence of KP that the Applicant had denied completely being in the room with MF at all was significant. The jury was entitled to conclude that such a statement was a lie and that its expression was borne of a consciousness of guilt.

93. It should be noted that the jury’s acceptance of MF’s evidence was in the context of the trial Judge having given a warning in accordance with R v Murray (1987) 11 NSWLR 12.

94. The jury had the opportunity to observe MF giving evidence and was entitled to conclude that she was a witness doing her best to recall a most traumatic incident. The assessment of the credibility and reliability of the evidence of MF was quintessentially one for a jury to determine: Atai v R [2014] NSWCCA 210 at [134].

95. Having applied the principles referred to at [54]-[56] above, I am satisfied that it was well open to the jury to be satisfied beyond reasonable doubt that the Applicant had penile vaginal intercourse with MF without her consent, and with the Applicant knowing that she was not consenting.

96. I would reject the first ground of appeal.

97. The Applicant has not established any ground of appeal with respect to his conviction.

The Sentence Ground of Appeal - Claim that Sentence was Manifestly Excessive

98. Mr Kimmins did not challenge a number of specific findings made by the sentencing Judge. He accepted that the range of offending behaviour encompassed by s.61I Crimes Act 1900 is very broad.

99. The submissions in support of this ground of appeal were based upon a comparison of the sentence imposed in the present case with those imposed in R v Greenwood [2014] NSWCCA 64, Badans v R [2012] NSWCCA 97 and R v JRB [2006] NSWCCA 371 and the cases referred to in Cowling v R [2015] NSWCCA 213. Reliance was also placed on Mills v R [2017] NSWCCA 87.

100. It was submitted that the sentence imposed upon the Applicant in this case was manifestly excessive.

101. The Crown drew attention to a number of findings made by the sentencing Judge which were not challenged by the Applicant in this Court. It was submitted that, in the light of those findings, the sentence imposed upon the Applicant was well open in the circumstances of this case.

102. With respect to the suggested comparable cases relied upon by the Applicant, the Crown noted that Greenwood v R involved an offence which was found to be “below a mid range offence of this kind, but not at the bottom of the range” with the appellant being able to draw on positive good character (unlike the Applicant in this case). The Crown noted that Badans v R and R v JRB were both Crown appeals against sentence with significant points of difference between those cases and the present case. The Crown submitted that the Applicant derived no real assistance from Cowling v R.

103. The Crown submitted that, on the unchallenged findings made with respect to the Applicant’s offence, the sentence imposed was well open to the sentencing Judge.

Decision

104. To address this ground of appeal, it is necessary to refer to a number of findings made by the sentencing Judge which were not challenged in this Court. This task will be undertaken, bearing in mind that a claim of manifest excess on sentence requires the Applicant to demonstrate that the sentence was unreasonable or plainly unjust: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at 325-326 [6].

105. His Honour found that the Applicant was substantially affected by alcohol at the time he returned to the Cronulla unit and that “This contributed to very significant errors he subsequently made in his conduct, of course, for which he cannot be excused by reason of his intoxication” (ROS4).

106. His Honour found that “At least on his entry to the room, he mistakenly believed in his intoxicated state that he was entering the room occupied by his partner, particularly in the context of the two of them having until recently occupied that room” (ROS5).

107. Consistent with the verdict of the jury, his Honour found that the Applicant climbed on top of MF and penetrated her vagina with his penis with MF, at the time of penetration, being “obviously vulnerable in that she was in bed asleep at the time of the offender’s entry to the room” (ROS6). His Honour found that, during the period of time immediately after MF made her complaint, the Applicant "maintained an attitude of obstinance, denial and denigration of the victim” (ROS6).

108. The sentencing Judge made a finding that the Applicant was reckless as to consent and as to the identity of the person whom he penetrated (ROS8-9):

“All the circumstances of the matter led me to the positive conclusion, given that ultimately that the penetration was clearly established beyond reasonable doubt as was the lack of consent, that the accused’s “knowledge” of the lack of consent of the complainant, arose out of his recklessness as to whether the complainant was consenting or not. As I said, she clearly did not consent to sexual intercourse and in fact was unable to convey consent because she was asleep immediately before the penetration occurred. Although I make allowance for the fact that the prisoner, in effect, landing on top of her, may have stirred her to some extent.

The prisoner was also reckless as to the identity of the person with whom he was intending to have sexual intercourse, bearing in mind of course, a key issue in this matter, given that the denials of the accused at various times as to whether he had intercourse with the complainant, was a critical matter for the jury to consider.”

109. The sentencing Judge expanded on this finding of recklessness (ROS10-11):

““As I said, the real issue ultimately for the jury to conclude, given the timely complaint of the victim, was the issue of the recklessness of the prisoner. Where this now is to be assessed for sentencing purposes is a task that I have been required to undertake. His denial of penetration, as I said, was defeated by the complainant’s immediate complaint of the fact and of course, as I said, his own conduct.

I also understand and accept from the evidence, that the victim would have been particularly distressed to discover that she had been sexually penetrated by a man who she hardly knew, who was the partner of one of her lifelong friends and about whom she clearly had heard unfavourable things. This was somewhat reflected in the things she said after the event, to the effect that she knew he was a, ‘sleazebag’, or a, ‘scumbag’, and was a person not to be trusted.”

110. His Honour found that the offence lay just below the middle range of objective seriousness as assessed in accordance with s.54A(2) Crimes (Sentencing Procedure) Act 1999 (ROS14). His Honour accepted that MF was in a position of vulnerability and that she had suffered substantial emotional harm (ROS15).

111. His Honour had regard to the Applicant’s prior criminal history which included an offence for indecent assault in 1994. His Honour said (ROS15-16):

“So far as his criminal history is concerned I agree with the Crown submission that he is not entitled to any particular leniency. It is not an aggravating factor, although I note the presence of a conviction for indecent assault. That conviction was in 1994, that is it was some 19 years before the relevant events with which I am concerned. It was apparently dealt with in the Local Court and for the offence the offender was ordered to serve a period of community service. His criminal history does involve convictions in the early 1990s for assault, assault police, assault occasioning actual bodily harm, malicious damage and street offences. These various offences were committed up until 1995 and were variously dealt with by the then equivalent of good behaviour bonds, fines or community service.

I do note that one of the assault matters and the malicious damage matter were dealt with by the then equivalent of what is now s 10A of the Act, that is the offender was sentenced to the ‘rising of the Court’. There is a break of 12 years in his offending, or slightly longer. However again in 2007 he was convicted of assault occasioning actual bodily harm but placed on a good behaviour bond of the Local Court for 12 months with which order he complied. He also received a street offence infringement notice.

The various matters reflect in the context of the wider history of alcohol abuse and offending with this prisoner. This is precisely the situation here. It offers no excuse. One would have thought that the offender’s past experiences of appearances in court would have caused him to address his alcohol consumption, or at least curb his behaviour when affected by alcohol. I note that he has never previously been sentenced in the District Court or the Supreme Court and he certainly has not previously been sentenced to terms of imprisonment.”

112. His Honour concluded that the Applicant was unlikely to reoffend if he addressed his alcohol consumption and that he had good prospects of rehabilitation (ROS20-21). A finding of special circumstances was made upon the basis of the need for an extended period of supervision to assist the Applicant to adjust to community living, to receive direction and counselling in relation to his use of alcohol and to receive professional assistance to find employment upon his release (ROS21).

113. The various findings of the sentencing Judge which I have set out serve to explain his Honour’s conclusion concerning the appropriate sentence in this case. His Honour made a finding of recklessness which was, once intercourse was found to have occurred, the most favourable finding open to the Applicant in the circumstances of the case and having regard to the terms of s.61HA Crimes Act 1900: R v Alcazar [2017] NSWCCA 51.

114. The Applicant’s argument that the sentence imposed was manifestly excessive is not assisted by his reliance upon the few decisions of this Court to which reference was made. This Court has disapproved of the arguing of a manifest excess ground by reference to a few sentencing decisions: Abdelmeseeh v R [2017] NSWCCA 312 at [62].

115. Nor do I consider that the Applicant is assisted by anything said in Mills v R at [62]-[71]. The circumstances under consideration in that case were very different to the present case.

116. The sentencing Judge had regard to all relevant factors in the imposition of sentence, including the maximum penalty and standard non-parole period which operated as important statutory guideposts: Muldrock v The Queen (2011) 224 CLR 120; [2011] HCA 39 at 132 [27].

117. It has not been demonstrated that the sentence imposed in this case was unreasonable or plainly unjust. The sentence was well open in all the circumstances of the case.

118. The Applicant has not made good his ground of appeal asserting that the sentence was manifestly excessive.

Conclusion

119. I propose the following orders:

1. the Applicant be granted leave to rely upon Ground 1 on the conviction appeal;

2. the Applicant be refused leave to rely upon Ground 5 on the conviction appeal;

3. appeal against conviction dismissed;

4. grant leave to the Applicant to appeal against sentence;

5. appeal against sentence dismissed.

120. ROTHMAN J: I agree with Johnson J and his reasons and wish to add the following comments.

121. I have, in accordance with principles applicable to the determination of a ground of appeal that a verdict is unreasonable, independently assessed the whole of the evidence to determine whether the verdicts of guilty could be supported.

122. In this case, the guilt of the applicant depends fundamentally on whether the complainant is to be believed. In that assessment, the jury has a clear and obvious advantage, because they have heard the complainant.

123. Nevertheless, having read the evidence, I too am of the view that the evidence of the complainant should be believed and is supported by immediate complaint and the other matters to which Johnson J refers in his reasons for judgment.

124. I would also seek to stress the comment of Johnson J that, even if the applicant believed the woman in the bed was his partner, he took no steps to ascertain her consent and was reckless as to the existence of consent, as most ably and eloquently expressed by Norrish QC DCJ in his sentencing remarks. It is no longer (if it ever were) the situation that a sexual partner or spouse is presumed to consent to sexual conduct.

125. With those additional comments, I agree with the reasons for judgment by Johnson J and the orders he proposes.

126. LONERGAN J: I agree with Johnson J.

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Decision last updated: 11 August 2017