Drew Anthony Moffitt v Regina

[2002] NSWCCA 73

CITATION:	Drew Anthony Moffitt v Regina [2002] NSWCCA 73
FILE NUMBER(S):	CCA 60545/01
HEARING DATE(S):	8 March 2002
JUDGMENT DATE:	20 March 2002
PARTIES :	Drew Anthony Moffitt (Appellant) Regina (Crown)
JUDGMENT OF:	Stein JA at 1; O'Keefe J at 31; Buddin J at 32

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	00/31/0285
LOWER COURT JUDICIAL OFFICER :	Norrish DCJ

COUNSEL :	D N Stewart (Appellant) G I O Rowling (Crown)
SOLICITORS:	Ross Hill & Associates (Appellant) S E O'Connor (Crown)
CATCHWORDS:	CRIMINAL LAW - Sexual offences - appeal against conviction - inconsistent verdicts - whether convictions were unsafe and unreasonable - ND
LEGISLATION CITED:	N/A
CASES CITED:	R v MacKenzie (1996) 190 CLR 348 R v Markuleski (2000-2001) 52 NSWLR 82
DECISION:	Appeal against conviction dismissed.

60545/01

STEIN JA
O’KEEFE J
BUDDIN J

Wednesday, 20 March 2002
Drew Anthony MOFFITT v REGINA

Judgment

1 STEIN JA: This is an appeal against conviction by the appellant, Drew Anthony Moffitt. On 8 February 2001 the appellant was found guilty of three counts on the indictment but not guilty of one count. The appeal is on the basis that the verdicts were inconsistent and the convictions unsafe and unsatisfactory.

2 The first count in the indictment alleged that the appellant, on or about 14 June 2000, detained the complainant with intent to hold her for sexual gratification.

3 The second count alleged that on 14 June 2000 the appellant had sexual intercourse with the complainant without her consent. This count was particularised as the appellant penetrating the vagina of the complainant with a hard object.

4 The third count was to the same effect as count two but particularised as the appellant penetrating the anus of the complainant with a hard object.

5 The fourth count alleged that on the same date the appellant did unlawfully cause the complainant to take a stupefying drug, namely temazepam, with the intent to enable him to commit a sexual assault on her.

6 The jury found the appellant guilty of counts 1, 2 and 4 but not guilty on the third count.

7 On behalf of the appellant, Mr D Stewart of counsel submits that the verdicts of the jury are inconsistent. He submits that there was no rational reason why the jury, having not been satisfied of the guilt of the appellant in relation to count 3, could be satisfied as to his guilt in relation to count two. The verdicts, according to the submission, defied the test of logic and reasonableness outlined in R v MacKenzie (1996) 190 CLR 348. The verdicts cannot stand together. Counsel further submits that the verdict of the jury on count 3 means that counts 1 and 4 are also verdicts inconsistent with it.

The facts

8 The following is an edited version of the facts summarised by the Crown. As I understand it, counsel for the appellant, who also appeared at the trial, does not dispute its general accuracy. Lengthy as it is, it is necessary to set it out in order to consider the appellant’s submissions.

The complainant advertised in the paper as a prostitute. On 14 June 2000 … [A] man named Paul rang her mobile and said he had a client who normally saw another lady (Julia) who was unavailable that night and asked if she would be willing to see that man for $500 an hour for a period of six hours. … The complainant told Paul that she could travel and told him to ring her back to write the details.
The complainant later went shopping … for underwear and groceries, and Paul rang her again with an address at Crescent Head. He told her about the man being married to a barrister and that she could meet the man at the water tower so as not to go directly to his house.
Around 6:00pm the complainant smoked up to five bongs of marijuana then left to meet the man. … The complainant arrived at the water tower as it was getting dark, and she saw a man (the appellant) standing next to a white Ford. The man said, “New car, Julia?” The complainant explained that she was not Julia, and she gave him a false name, “Amanda”. The man introduced himself as “Bob”. He asked her to come into his car, … The man was wearing a beanie, a pair of glasses and a square band-aid on his cheek.
The complainant took off her skirt (under which she was wearing hot pants) and sat in the front passenger seat next to the man who said the car was his son’s car, that it was unregistered and that it was his 45th birthday. He asked her if she would have a drink with him. She said no, but he persisted and said she could not let him drink on his own, so she agreed. He poured a drink from a Tia Maria bottle into two glasses, and she drank two and a half glasses. The drink looked milky and pinkish.
The man told the complainant that his wife was a barrister, that she was still home and that he wanted to go to a motel at Kempsey for a couple of hours before going to his house. … The man drove off and asked the complainant for a head-job, and she gave him one without a condom while he was driving.
The complainant, at one point, looked up and realised that they were not on a familiar road, even though the man had said they were going to Kempsey, and she told the man to take her back to her car. She saw a sign saying “Gladstone”. The man told her he was about to come and to continue what she was doing, but she said no and he took out some money from his pocket and said, “ Here’s $1,000. You know I’ll give you the rest later”. She went to take it, but he put it back in his pocket. The complainant started to worry because she did not know where she was and no one else would know either. The man stopped the car at one stage … and suggested they have another drink. The complainant said no, but he persisted and she agreed, and she drank another glass.
The man continued driving, and they reached an intersection: “Kempsey 15kms, Coffs Harbour North”, and they turned towards Coffs Harbour. The complainant “freaked” because she knew there were no motels along the road there. The man kept driving without saying a word and she “froze” . He drove off the highway onto a dirt road, and the complainant tried to pull back the gear stick to get out of the car, but the man grabbed her right arm and said, “You don’t want me to hurt your pretty little face”. The man drove down a driveway and pulled up near a house. He got out of the car. The complainant hopped into the driver’s seat, but she then saw the man coming back to that side of the car and she jumped into the passenger side, and the man walked to her and grabbed her arm and pulled her out of the car.
They walked to a nearby caravan. The man opened the door and told the complainant to step inside, touching her on her shoulders from behind. She heard plastic on the floor. The lights were off. She stretched out her hands and felt plastic. The man walked her further inside and her knees hit a bed. He pushed her shoulders and laid her on the bed on her back and tied up her wrists above her shoulders. Her right hand was not tied very well and she managed to free her hand while the man had walked away, but when he came back he tightened it more. He then blindfolded her, and she could sense that the lights had now been turned on. The man asked her if she had any weapons in her bag, and she heard noises, which sounded like he was going through her bag. He then asked her if she smoked pot, and she said she did, and he told her to sit up, and she felt a bong placed near her mouth. She puffed on it then coughed, and the man told her she could do better than that, and she inhaled the rest of it. The man told her to have another drink and she felt a glass near her mouth. The drink tasted “gross” and she spat it out. The man said it was that drink or the cocktail she’d had before, and she told him she would have the cocktail. A glass was placed against her mouth, and she could see a milky drink with a pinkish colour through it, and she drank some of it.
The man then took off her pants, and as she was lying back she “felt something inside my anus and my vagina. It was, it hurt”. The man then started to shave her pubic hair.
That was the last thing the complainant could recall in the caravan. Her evidence was that she had not gone willingly with the man to the caravan, that she had not consented to any sexual acts that took place inside that caravan, and that she had not wanted to consume any substance given to her by the man.
The complainant’s next recollection was of waking up in the passenger seat of the man’s car.
The complainant next recalled waking up in the driver’s seat of her sister’s car … She climbed into the back of the car and laid there for a short while before thinking that she had to get out of there, and she hopped back into the driver’s seat. She drove off (although she could not recall starting the car, and she could not recall what had happened to her handbag or keys, which were in that bag).
The complainant stopped the car near a phone box … She rang her sister and said, “Rachel, you know, he raped me, you’ve got to come and get me. Please come and get me. Get someone to come and get me”. She turned her head and saw that she was near a police station, and she told her sister she would be going there.
The complainant walked to the station and saw a lady inside, and she asked her to let her in. The lady told her she could not let her in, and the complainant said, “Please you have to let me in. I’ve just been raped”.
The complainant’s sister corroborated the evidence of the complainant in respect of the phone call received by the complainant on her mobile in the car. Sometime between 1:00am and 1:30am the complainant rang and said, “I’ve been raped. My hands were tied and my eyes were covered and he took me to a caravan that was wrapped in plastic”. At the time of saying this, the complainant was crying. The phone cut off and a couple of minutes later the complainant phoned again and asked her sister to help her and to come and get her. … Later the complainant rang again from the police station and said she was going to the hospital.
Constable Monique Turner was stationed at Crescent Head Police Station … Around 1:30am she heard loud banging, and she saw the complainant at the door, distressed and crying, and complaining of having been raped. She appeared to have been affected by intoxicating liquor or another substance.
The complainant gave Turner an account of what had happened to her. The complainant told Turner that the man had gone through her handbag in the car at Crescent Head. She said that after getting into the man’s car, he drove her past his house to see if his wife was home, and he told her they would go to a motel after realising that she was home. When the man had asked for a head-job in the car, the complainant asked for $1000 first, but the man said he would give it to her when they arrived. After driving to the caravan, the man pulled her out of the car, wrapped something black around her eyes, tied up her wrists with a big belt and buckle and said, “Don’t hurt me and I won’t hurt you”, and he then walked her to the caravan. …
The complainant told Turner that the caravan was dark when she entered, and she had asked the man to turn on the lights. She had looked underneath the blindfold and saw the caravan covered in plastic. She noticed a lot of sex toys. The man made her drink something pink, and it made her feel “strange” . She could not move her feet and she was scared. The man told her he was going out to the toilet, and if she tired to get away he would hurt her. When he came back inside he “did it with a dildo that had a condom on it. I don’t think he had sex with me himself, only with the dildo” . …
The complainant told Turner that she felt like she had been drugged. Turner noticed red marks on her wrists. The complainant complained of being nauseous. She was unsteady on her feet, she was shaking, and her speech was slurred and becoming progressively worse. …
Senior Constable Sean Leehy was the officer called by Turner to attend Crescent Head Police Station on 15 June 2000. Between 3:00am and 4:00am, he saw the complainant … The complainant gave him an account of what had happened to her, and Leehy’s evidence was that she appeared to be slightly intoxicated or drug-affected, and that she was shaking and crying, and she asked for someone to hug her. The complainant’s account was similar to what she had told Turner. …
The statement of Senior Constable Cindy Simons was read to the jury, in which she stated that whilst Leehy had stepped out of the lounge room for a brief period of time, she remained with the complainant. The complainant told her that she did not know what the man had given her to drink, and that she had not wanted to drink it. She complained of feeling sick and wanting to throw up. She told Simons that the man must have dressed her in the clothes she was currently wearing. She gave Simons a brief account of what had happened to her in the caravan. After the man had “finished having sex with me I was really nice to him”. …
Detective Senior Constable Brian Powick and Senior Constable Rodney Vandermaat attended a property at Barraganyatti around 10:40am on 15 June 2000. There was a house and a caravan on the property, and a white Ford. The appellant appeared from the caravan. Powick asked the appellant if they could look in the van and the appellant said, “Yeah, help yourself” . The appellant said he owned the van … An opened condom was on the floor in the caravan. There were sheets draped all over the walls. …

Vandermaat asked the appellant where he had been the previous night. The appellant said he had been there from 9:00pm. He said his mate owned the place and was presently away. The appellant was asked if he had brought a female there the previous night, and he said no. At the time of these questions being asked, the appellant was shaking and sweating profusely, and he drank numerous amounts of water. Again the appellant was asked if he was sure he had not brought anyone over the previous night. The appellant said, “Well, you obviously know it was me. I did it” . Powick noticed (on the appellant’s left cheek) “sticking plaster … as though he had just removed a band-aid or similar”. …

… The appellant was arrested and cautioned. The appellant was asked if he had any sex aids in the caravan that he may have used on the complainant, and he said he did. Rutledge saw the appellant enter the van with a police officer and later walk out with the officer holding a container with a number of items including vibrators, leather straps, a blindfold and a bong. …
The appellant was subsequently electronically interviewed … During this interview the appellant said that he had met the complainant on 14 June 2000 after seeing her Ad in the paper and arranging to meet her at 7:00pm near the water tower at Crescent Head. Whilst in his car the complainant became upset and concerned that they were not going the right way to Kempsey. He pulled over and tried to calm her, and he explained that they would not be going to a motel but to his son’s place. As they turned in the driveway the complainant grabbed the gear stick and tried to jump out of the car (A91 & A150). The appellant tried to calm her and restrain her because the car was still moving, and he did not want her to jump out and hurt herself (Q255-258). They then went to the caravan. He did not feel that he had taken the complainant against her will, and he had not stopped her from getting away (A182 & A259). It was her suggestion that she wear a blindfold, which she put on herself (Q99-A106). As they walked to the caravan he told her what he wanted to do (which included bondage) and she told him her fantasies, which included being raped and kidnapping a young lady and making her do various things (A113-114). The appellant told police that the complainant had agreed for her wrists to be strapped (A121). He also said that he had used the vibrators on the complainant, in her vagina (Q128-136). He denied having made any threats to the complainant, and he denied having forced the complainant to do anything she did not want to do (Q152-154). The appellant told police that he had arranged to pay the complainant $500 an hour for six hours, and that he “wasn’t trying to rape anybody … or anything. I was just trying to have sex for nothing when it comes down to it” (A164-165, & A172). He said that he had no intention of actually paying her (A172). He had given the complainant a false name because he had not intended to pay her, and he had placed a bandage on his face to conceal his appearance.
The evidence given by Detective Senior Constable Michael McFarlane was read to the jury. … There were two glass flutes in the kitchen sink with tan-coloured milky fluid. A bong was seen on the table (T 180). There was a used condom on the floor at the entrance. McFarlane also located two black leather wrist straps, a blue plastic vibrator, a green vibrator, a packet of sedatives, a grey beanie, a pair of glasses, a sleeping mask and a beige bandage. …
Dr Heather Williams examined the complainant at 7:30am on 15 June 2000. The complainant appeared dishevelled and shaken. Swabs and a blood and urine sample were taken from the complainant who was very distressed and uncomfortable as the vaginal swab was being taken, and she was reluctant to continue with further examination higher up in her vagina. Her pubic area had been shaved. The complainant gave an account of what had happened, consistent with what she had told Turner and Leehy. No injuries were found on the complainant’s body …
… William Allender, a forensic scientist, gave evidence that the results of the analysis reflected recent usage of cannabis, which would not cause a psychotic episode. Normally it causes euphoria and then sleepiness. Alcohol was not detected in the complainant’s blood. Alcohol and a tranquilliser drug (Temazepam) – which depresses the central nervous system and induces seep – was detected in the sample of milky fluid taken by McFarlane from one of the glass flutes in the appellant’s caravan. This drug was also detected in the complainant’s urine, as was a metabolyte of this drug.

Can the verdicts be reconciled?

9 In MacKenzie (at 367) Gaudron, Gummow and Kirby JJ said:

… if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury.

10 For a recent comprehensive discussion of the general principles relating to inconsistent verdicts see Spigelman CJ and Wood CJ at CL in R v Markuleski [2000 - 2001] 52 NSWLR 82.

11 An examination of the evidence leads inexorably to the conclusion that the verdicts of the jury may readily be reconciled. There was in fact ample evidence which could have lead the jury to support the verdicts said to be inconsistent. Their verdict on count 3 does not mean that the jury did not believe the complainant’s evidence. One obvious feature of the evidence is that counts 1, 2 and 4 were the subject of some independent corroboration in the evidence, whereas count 3 alone did not so have.

12 It is also instructive to examine the sequence of events and the various statements made by the complainant. The offences took place some time during the late evening of 14 June 2000. The complainant telephoned her sister between 1 and 1.30 am on 15 June 2000. She said that she said to her sister ‘he raped me’. The complainant’s sister said that the complainant said ‘I’ve been raped’. No mention was made of anal penetration with a dildo or hard object.

13 At around 1.30 am the complainant spoke to Constable Turner. The complainant said in evidence that she said to the police officer ‘I’ve just been raped’. Constable Turner confirmed this was said. Again, no mention was made of anal penetration with a hard object or dildo. The officer asked the complainant to tell her as much as she could recall about what had happened to her that night. The complainant responded in some detail and at some length. She said, inter alia, ‘he did it with a dildo that had a condom on it. I don’t think he had sex with me himself, only with the dildo’.

14 Between 3 and 4 am the complainant was seen by Senior Constable Leehy and Senior Constable Simons. The complainant told them ‘he did it to me while I was blindfolded with two dildos at the same time, I think he just penetrated me with the dildos, not himself’. At one point of time Constable Leehy left the room and the complainant spoke with Constable Simons. No mention was made of anal penetration. The complainant referred to ‘when he finished having sex with me …’.

15 So it will be seen that between 1 am and 4 am, in her complaint to her sister and conversations with the three police officers, at no time did the complainant claim that the appellant had penetrated her anus with a dildo or hard object.

16 It was not until after 7.30 am on 15 June 2000, when the complainant was being examined in hospital by Dr Williams, that the first mention of anal penetration was made by the complainant, when she complained of forced vaginal and anal penetration using a hard object.

17 His Honour the trial judge gave the jury a direction about how this evidence could be used. His Honour said:

… because it occurred quite some hours after the complainant was first seen by the police, that evidence is not available to you as evidence of the fact. It is not evidence of the truth of what is asserted. Its purpose is solely as part of the history the doctor had to enable her to conduct a physical examination …

18 Another portion of Dr Williams evidence is relevant. While she took swabs from the low vaginal area of the complainant, she did not however take a swab, as would normally be done, of the higher region of the vagina. This was because the complainant was uncomfortable about the process and was not willing to have any more penetration of her vagina. Dr Williams did not examine the complainant anally.

19 There is an aspect of the complainant’s evidence at the trial which should be mentioned. The complainant, when describing the events of the evening, said that she felt something inside her, in her anus and vagina. His Honour then asked her if she was still lying on the surface she had been lying on before. She agreed or indicated that she was still lying on her back. It is difficult to know what the jury might make of this, but one possibility is that they would think it a physically difficult act to achieve.

20 The complainant also gave evidence of the appellant shaving her pubic hair. Dr Williams confirmed that her pubic region had been shaved.

21 The appellant did not give evidence. However, his ERISP was before the jury, in what was apparently an agreed edited form of transcript of the spoken word. During the interview the appellant was shown a dildo covered by a condom and found in the appellant’s caravan. He was asked if that was ‘used on the complainant last night?’ He answered ‘Yeah”. He was then asked, was it used in vaginal sex or anal sex? His answer was ‘vaginal’. He was then shown a blue vibrator also located in the appellant’s caravan and asked if it was used on the complainant. Again, he answered in the affirmative and said ‘just in the vagina’ [Q & A 136]. So, in the ERISP, the appellant was, in effect, denying that he used a dildo to anally penetrate the complainant.

22 One rather curious aspect of the trial is that the complainant was not cross-examined alleging that there was no anal penetration of her by the appellant. Rather, it was suggested to her by the appellant’s counsel, that the appellant used vibrators in both her anus and vagina but with her consent. It was also suggested to her by counsel that the appellant shaved the complainant’s pubic hair with her consent.

23 One more aspect of the evidence should be mentioned, which is directly relevant to the fourth count. That is the evidence that the analysis of the complainant’s urine sample revealed the presence of temazepam. This supported her evidence that she ingested the drug. This, together with the analysis of the sample of milky fluid taken from a glass found in the appellant’s caravan, which was found to contain temazepam, was powerful corroboration of the complainant.

24 When the evidence discussed above is considered, it is plain that the verdicts of the jury are not inconsistent in logic or reasonableness. There are clearly proper ways in which this court may reconcile the verdicts. It follows, in my opinion, that the jury performed its required function and its verdict should be accepted.

25 There was plainly evidence which supported the verdict claimed to be inconsistent. This includes the absence of explicit complaint of anal penetration until the trial. It also includes the absence of any independent evidence of corroboration of count 3, as compared with count 2 (Dr Williams and the complaints) as well as counts 1 and 4.

26 Since there was a proper basis for reconciling the verdicts and evidence to support the verdicts, it is not for the court to substitute its own view of the facts.

27 In any event, the Crown case was at its strongest in relation to counts 1, 2 and 4 and at its weakest with regard to count 3. It cannot be concluded that the jury failed to perform its function. It was well open to it to be satisfied beyond reasonable doubt on the counts upon which it found the appellant guilty. Similarly, it was open to the jury to have a reasonable doubt as to whether anal intercourse took place as alleged in count 3.

28 As I have said, it does not follow from the acquittal on this count that the jury disbelieved the complainant generally, see Markuleski at [80-81] and [257-293]. All that the verdict shows is that the jury had a reasonable doubt as to the guilt of the appellant on count 3. It should not be forgotten that the jury had a powerful advantage over this count. The jury heard and saw the witnesses and was in a position to make subtle conclusions as to the way in which the evidence was adduced, see Markuleski at [231].

29 The verdicts of guilty in relation to counts 1, 2 and 4 were well open to the jury notwithstanding its verdict of not guilty on count 3. The appellant also faintly argues that the verdict should be set aside as unreasonable. The basis for this submission was certain internal inconsistencies in the complainant’s evidence relevant to consent. They are not such as lead me to conclude that the verdict was unreasonable.

30 It follows that the appeal against conviction should be dismissed.

31 O’KEEFE J: I agree with the orders proposed by Stein JA and with his reasons for such orders.

32 BUDDIN J: I agree with Stein JA.

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