DDC v The State of Western Australia
[2012] WASCA 97
•4 MAY 2012
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: DDC -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 97
CORAM: MARTIN CJ
PULLIN JA
BUSS JA
HEARD: 23 FEBRUARY 2012
DELIVERED : 4 MAY 2012
FILE NO/S: CACR 79 of 2011
BETWEEN: DDC
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :DAVIS DCJ
File No :IND 1594 of 2010
Catchwords:
Criminal law - Juries - Whether four convictions were consistent with 14 acquittals - Whether verdict safe and satisfactory - Turns on own facts
Legislation:
Nil
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr S B Watters
Respondent: Mr J A Scholz
Solicitors:
Appellant: D G Price & Co
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Riley v The State of Western Australia [2007] WASCA 22
MARTIN CJ:
Summary
After trial by jury in the District Court, the appellant was convicted of two counts of indecent dealing with, and two counts of sexual penetration of a girl between the age of 13 and 16 years. He appeals against those convictions, on the sole ground that the convictions are unsafe and unsatisfactory because the verdicts of guilty on those counts are inconsistent with the verdicts of not guilty delivered in respect of 14 other counts of sexual penetration of and indecent dealing with the same complainant. For the reasons which follow, the appeal against conviction should be dismissed, because there is a proper way by which the verdicts of the jury may be reconciled, having regard to the evidence led at trial.
The applicable legal principles
The legal principles applicable when an appeal against conviction is brought on the ground that the jury's verdict of guilty is inconsistent with other verdicts of acquittal delivered by the same jury are well established. Those principles, and the leading cases establishing those principles and their application are conveniently summarised in the reasons of Buss JA (with whom Wheeler & McLure JJA agreed) in Riley v The State of Western Australia [2007] WASCA 22 [16] ‑ [25]. There is no need to restate those principles in these reasons.
The critical question in this appeal is whether there is a proper basis upon which the jury's verdict of guilty on four of the counts in the indictment brought against the appellant can be reconciled with their verdicts of not guilty on the other 14 counts, having regard to the system within which juries function, and their role within that system, including the entitlement of a jury to accept part but not all of the evidence of a witness, and the obligation of a jury, when a number of charges are tried together, to consider the evidence on each charge separately. Resolution of that question requires an analysis of the course taken at trial.
The indictment
The appellant was tried on an indictment which contained 18 counts alleging either indecent dealing or sexual penetration of the complainant, who was a girl aged between 13 and 16 at the time of each alleged offence. The appellant was convicted on counts 1 ‑ 4, and acquitted on counts 5 ‑ 18.
Counts 1 and 2 alleged that between 1 March and 31 March 2006, the appellant indecently dealt with the complainant by touching her breasts, and on the same occasion penetrated her vagina with his finger. Counts 3 and 4 alleged that between 1 April and 30 April 2006, the appellant indecently dealt with the complainant by placing her hand onto his penis, and on the same occasion, penetrated her vagina with his finger.
Counts 5 ‑ 16 were said to have taken place between 1 March 2006 and 31 December 2006, except that count 10 was said to have taken place between 10 February 2006 and 31 December 2006, and count 9 was said to have occurred between 1 September and 30 September 2006. Counts 17 and 18 were said to have taken place between 7 January 2008 and 28 February 2008.
Counts 5 ‑ 18 on the indictment covered a range of sexual conduct, including digital penetration of the complainant's vagina, cunnilingus, fellatio and indecent dealing by causing the complainant to have manual contact with the appellant's penis, and by kissing.
The evidence of the complainant
The complainant was born in 1993. The complainant's evidence was that in 2006 she had been living in a house in a suburb of Perth with her mother, her father, and one of her brothers. In February 2006, the appellant, who is the complainant's cousin, came to live in that house. The mothers of the complainant and the appellant are sisters, and were both born overseas. The appellant was born and raised overseas, but moved to Perth to stay with his aunt's family in order to study English. The appellant was about 26 years of age, and the complainant had just turned 13 when the appellant moved into the house.
According to the complainant, soon after the appellant moved into the house, he started inviting her to sleep in the bed with him at night, saying that he would caress her to make her sleep better. The appellant and the complainant each had their own bedrooms. There was a double bed in the appellant's bedroom.
According to the complainant, when everyone else was asleep in the middle of the night, the appellant would go to her room, then take her back to his room, where he would caress her and they would sleep together before he would wake her in the early morning to enable her to return to her room before the rest of the family awoke. According to the complainant, this took place five or six times over a month.
The complainant testified that on one occasion, during the month of March, while they were together in the appellant's bed, the appellant put his hand under her pyjama top and touched her breasts and played with her nipples. On the same occasion, according to the complainant, the appellant put his hand down her pyjama pants and inserted his finger into her vagina, moving it up and down. This is the occasion which gave rise to counts 1 and 2 on the indictment.
The complainant testified that in about March 2006, her mother went overseas for two months because the complainant's grandmother, who was overseas, was ill. According to the complainant, her mother was away between March and May 2006.
According to the complainant, while her mother was away, her younger brother's room was renovated, which meant that her brother had to spend two nights in the appellant's bedroom while the renovation work was carried out. According to the complainant, on one of those nights, the appellant came to her room and took her back to his room, where her brother was sleeping on another bed in the room. The complainant testified that while she was in the appellant's bed, the appellant digitally penetrated her vagina and also placed her hand on his penis, outside the shorts which he was wearing. This is the occasion which gave rise to counts 3 and 4 on the indictment.
The complainant gave evidence with respect to the various forms of sexual activity which were the subject of counts 5 ‑ 18 on the indictment. In most cases, the complainant was unable to be as specific in relation to the dates upon which the activity occurred as she had been in relation to the activity the subject of counts 1 - 4, with the exception of count 9, which was an allegation of indecent dealing by kissing, which she said took place in September 2006. In relation to the remaining counts, she was unable to be more specific than to say they took place during 2006, with the exception of the last occasion she and the appellant had intimate contact which was in 2008 (that occasion giving rise to counts 17 and 18). The appellant was unable to say whether the complainant was still living in her house at the time the activity the subject of counts 5 ‑ 16 took place (ts 65). In relation to counts 17 ‑ 18, which allegedly occurred in 2008, the complainant testified that the appellant had returned to stay at the house for a few nights only (ts 68).
In relation to counts 5 ‑ 18, the complainant testified that the appellant would contact her by sending a message to her mobile phone, or calling her on that phone, after which he would enter her bedroom, where much of the sexual activity took place.
During cross‑examination, it was put to the complainant that the appellant had moved out of her house about May or June 2006. She replied that she did not 'know exactly' (ts 71). She agreed that her and her younger brother and father had visited the appellant at various places at which he was living from time to time in other suburbs of Perth. She also agreed that the appellant resumed living in her house in the latter part of 2008, when his mother and his brother arrived from overseas. According to the complainant, the appellant slept on the couch in her house between September 2008 and about May 2009, when disagreement within the family caused the appellant, his mother and brother to leave the house.
The complainant was cross‑examined on the question of whether her mother was overseas at the time of the initial sexual contact. She was uncertain (ts 73).
During cross‑examination, the complainant reiterated that her younger brother was asleep in the same room on the occasion which was the subject of counts 3 and 4. She also testified that the morning after that occasion she was found in the appellant's bed by her father, who asked her later in the day if the appellant had done anything to her. According to the complainant, she lied to her father by stating that nothing had happened.
It was put to the complainant that between the time the appellant moved out in May or June 2006, and the time when he resumed living in the complainant's house in September 2008, he never stayed overnight in the house. The complainant denied that proposition, and asserted that he would stay overnight, sleeping on the couch (ts 77). It was put to the complainant that this assertion was incorrect, and that there was no reason for the appellant to stay overnight, given that he had his own place to stay, his own car, and no reason to stay overnight at the complainant's house given that he did not drink alcohol. The complainant asserted during cross‑examination that the incidents which took place after the appellant had moved out of the house (that is, after the events giving rise to counts 1 ‑ 4), occurred when the appellant was visiting the house and staying overnight (ts 77 ‑ 78).
The appellant was further cross‑examined with respect to the times at which the first occasions of sexual contact took place. She affirmed her evidence‑in‑chief to the effect that she was uncertain as to whether the first incident took place before or just after her mother had left to go overseas (ts 78). The second incident was said to have taken place while her mother was away (ts 78).
The evidence of the complainant's brother
The complainant's brother testified that while his mother was overseas visiting her sick mother, his bedroom was renovated which required him to spend two nights sleeping in the bedroom occupied by his cousin, the appellant. During one of those nights he awoke and saw the appellant leading the complainant into the room that he was sleeping in, and saw the complainant lie on the appellant's bed, after which he went back to sleep.
The evidence of the complainant's mother
The complainant's mother confirmed that she went overseas to visit her sick mother between March and May 2006. She said that by the time she returned, the appellant had left the house and found his own accommodation. However, according to the complainant's mother, the appellant returned to live with them about four months later. She testified that the appellant returned to live with the family on two or three occasions, covering a total period of about six months (ts 91 ‑ 92).
In cross‑examination, it was put to the complainant's mother that after leaving the house while she was visiting overseas, the appellant did not return to live in the house until his mother and brother arrived from overseas some years later. The complainant's mother denied that proposition, and testified that the appellant had resumed living in the house in the latter part of 2006.
The record of interview
The last component of the prosecution case was the tender of a video record of interview of the appellant by police. During that interview, the appellant steadfastly denied any misconduct with the complainant, although he did accept that the complainant had spent one night in his room (ts 107 ‑ 108).
The appellant's evidence
The appellant testified that he arrived in Australia and commenced living with the complainant's family on 10 February 2006. He stated that he moved out to live on his own in early June 2006, and did not return to stay with the complainant's family until the end of August 2008, when he returned to make preparations for the arrival of his mother and brother from overseas. He remained living at the house until May 2009, when family disharmony resulted in him moving out.
The appellant denied any sexual contact with the complainant. However, he confirmed the statement he had made to police during the course of his interview to the effect that the complainant and her brother had spent one night in his room. According to the appellant, he had been doing homework (he was studying English) in his room when the complainant and her brother joined him for a conversation about living overseas, after which one or other of the complainant or her brother asked if they could spend the night in his room, to which he agreed. The appellant stated that the complainant spent the night in a double bed with him, but a considerable distance away from him, and the complainant's brother slept on a mattress on the floor.
The appellant confirmed the complainant's testimony to the effect that she was found in the appellant's bed by her father the following morning. He testified that he apologised to the complainant's father later that day for allowing the complainant and her brother to sleep in his room.
During cross‑examination, the appellant maintained his denial of any physical contact with the complainant. He also denied that he ever spent the night at the complainant's house on any occasion between moving out in early June 2006, and returning to live in the house in late August 2008.
Closing address of counsel
During his closing address, counsel for the appellant placed emphasis on the evidence given with respect to the places at which the appellant was living. He put to the jury that the evidence established that the appellant ceased living in the complainant's house in May 2006, and that he did not resume living in that house until August 2008 (ts 234). Counsel used that evidence as a basis for putting to the jury that they should reject the evidence of the complainant to the effect that sexual misconduct took place after the appellant had moved out of the house, but on occasions when he was staying overnight sleeping on the couch. He submitted to the jury that they should conclude that the complainant's evidence to that effect was an invention by her, designed to overcome the evidence to the effect that the appellant had ceased living in the house in late May or early June 2006 (ts 238).
The directions given by the trial judge
The trial judge gave the jury conventional directions with respect to their obligation to separately assess the evidence on each of the counts against the accused, with the result that they might find some of the charges proven, and some not proven. She also gave conventional directions on the capacity of the jury to accept part, or all, or none of the evidence given by a witness. She also summarised the evidence that was given in relation to the times at which the appellant had been living in the complainant's house.
In that context, she directed the jury that the dates of each alleged offence were not an element of the offence which had to be proven beyond reasonable doubt:
But the dates are important if [the complainant] is saying that certain things happened at times when [the appellant] was not living at the house. Now, [the appellant's] evidence was he didn't live at the house again until August 2008, that was some weeks before his mother and brother arrived from [overseas] (ts 157).
The trial judge went on to reiterate the submission of defence counsel to the effect that the complainant's evidence on the subject of whether the alleged offences occurred when the appellant was living or staying at the house was vague, inconsistent and contrived, and that there was no reason for the appellant to stay overnight at the house after he had moved out, as he did not drink alcohol and had his own car. In that context, she reminded the jury of the appellant's evidence that he did not stay overnight after moving out of the house in May or June 2006 (ts 158).
Analysis
As I noted at the outset, the question which resolves this appeal is whether, having regard to the course of the trial and the evidence given, it is possible to reconcile the verdicts given by the jury with the proper performance of the functions entrusted to them.
It is sometimes possible to reconcile verdicts of the jury which are inconsistent on their face by inferring that the jury has exercised its prerogative to be merciful by returning verdicts of guilt on a count or counts which are sufficient to adequately reflect a reasonable view of the culpability of the accused. However, I would not draw such an inference in this case, as it seems an unlikely basis for the jury deciding to return verdicts of guilty on four out of 18 counts, and also because there is a more obvious and rational explanation for the distinction drawn by the jury between counts 1 ‑ 4, and the other counts on the indictment.
The evidence given by the complainant with respect to counts 1 ‑ 4 was more detailed, consistent, and date specific than the evidence given by her in relation to the other counts. Further, it is clear from her evidence that all the events the subject of counts 1 ‑ 4 took place while the appellant was living at her house. The same cannot be said of the evidence given by the complainant with respect to the remaining counts. In relation to those counts, there was a direct conflict between the complainant's evidence to the effect that they occurred when the appellant was staying overnight at her house, and the appellant's evidence to the effect that he never stayed overnight after moving out, until he resumed living in the house in August 2008. The credibility of the appellant's evidence on that topic was reinforced by the fact that he had his own accommodation, his own car and no reason for staying overnight at the appellant's house, given that he did not drink alcohol. Those matters were quite capable of inducing a rational doubt as to the credibility of the complainant's evidence in respect of events which she did not unequivocally place as having occurred before the appellant moved out of the house.
In addition, the evidence of the complainant with respect to counts 3 and 4 was consistent with evidence from other sources. The complainant's brother testified that he saw the complainant being led into the appellant's bedroom by the appellant, and getting onto the appellant's bed. That evidence was inconsistent with the appellant's evidence as to the circumstances in which the complainant and her brother came to spend the night in his room. However, the appellant acknowledged to police, and again in his evidence, that the complainant and her brother had each spent the night in his room, after which he apologised to the complainant's father and stated that it would never happen again.
In the light of that evidence, it was open to the jury to conclude that the evidence of the appellant's guilt on counts 3 and 4 was significantly stronger than the evidence of the appellant's guilt on counts 5 ‑ 18. A conclusion that the appellant was guilty of counts 3 ‑ 4 could also lend weight to a similar conclusion in relation to counts 1 and 2, given that the events the subject of those counts were said to have occurred in approximately the same time frame, and in the same circumstances as counts 3 ‑ 4 and, most significantly, while the appellant was living at the complainant's house.
Given the position adopted by defence counsel in cross‑examination, and in closing address, and the reiteration of that position by the trial judge in the course of her direction to the jury, it is quite possible to reconcile the jury's verdicts of acquittal on counts 5 ‑ 18 with their verdicts of guilty on counts 1 ‑ 4 on the basis that the jury accepted the submissions put to them in relation to the unreliability of the complainant's evidence to the effect that the later counts occurred whilst the appellant was sleeping over, but after he had moved out of the house.
As it is possible to reconcile the jury's verdict of guilty on counts 1 ‑ 4 with the verdicts of not guilty on counts 5 ‑ 18, there is no basis for concluding that the jury's verdicts of guilty on counts 1 ‑ 4 are unsafe or unsatisfactory, and the appeal must be dismissed.
PULLIN JA: I agree with the Martin CJ.
BUSS JA: I agree with Martin CJ.
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