DW v The State of Western Australia
[2011] WASCA 52
•28 FEBRUARY 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: DW -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 52
CORAM: PULLIN JA
BUSS JA
HALL J
HEARD: 3 FEBRUARY 2011
DELIVERED : 28 FEBRUARY 2011
FILE NO/S: CACR 66 of 2010
BETWEEN: DW
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :SWEENEY DCJ
File No :IND 42 of 2009
Catchwords:
Criminal law - Appeal against conviction - Sexual offending - Inconsistent verdicts - Whether verdicts factually inconsistent and incompatible, and therefore unreasonable
Legislation:
Criminal Appeals Act 2004 (WA), s 30(3)
Result:
Leave to appeal granted
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr S B Watters
Respondent: Mr J A Scholz
Solicitors:
Appellant: Ian Hope
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348
Riley v The State of Western Australia [2007] WASCA 22
Stevens v The Queen [2005] HCA 65; (2005) 227 CLR 319
WCW v The State of Western Australia [2008] WASCA 232; (2008) 191 A Crim R 22
Williams v Smith [1960] HCA 22; (1960) 103 CLR 539
PULLIN JA: I agree with Buss JA.
BUSS JA: The appellant was tried in the District Court before Sweeney DCJ and a jury on three counts in an indictment which alleged that, contrary to s 326 of the Criminal Code (WA) (the Code):
(1)On 11 January 2009 at … [the appellant] sexually penetrated [the complainant] without her consent, by penetrating her vagina with his penis
AND that [the complainant] was over the age of 13 years and under the age of 16 years.
(2)On the same date and at the same place [the appellant] sexually penetrated [the complainant] without her consent, by penetrating her anus with his penis
AND that [the complainant] was over the age of 13 years and under the age of 16 years.
(3)On the same date and at the same place [the appellant] sexually penetrated [the complainant] without her consent, by introducing his penis into her mouth
AND that [the complainant] was over the age of 13 years and under the age of 16 years.
The appellant was born in 1989. He was aged 19 years at the time of the alleged offending and was 20 when the trial occurred.
The complainant was born in 1994. She was aged 14 years at the time of the alleged offending and was 15 when the trial occurred.
The appellant admitted having penetrated the complainant's vagina with his penis, but contended that she had consented in fact to this intercourse. His counsel made this admission on his behalf at the trial and conceded a verdict of guilty on the alternative offence of sexual penetration of a child of or over the age of 13 years and under the age of 16 years, contrary to s 321(2) of the Code.
The appellant denied having sexually penetrated the complainant's anus or mouth.
The jury found the appellant guilty of the alternative offence to count 1 (that he sexually penetrated the complainant's vagina with his penis) and on count 3 (that he sexually penetrated the complainant, without her consent, by introducing his penis into her mouth). The verdict
in relation to the alternative offence to count 1 was unanimous and the verdict on count 3 was by a majority.
The jury acquitted the appellant on count 2 (that he sexually penetrated the complainant, without her consent, by penetrating her anus with his penis).
The appellant has appealed to this court against his conviction on count 3.
The background facts and circumstances and the State's case and the appellant's case at trial
On 12 January 2009, the complainant's evidence was pre‑recorded. She gave evidence of the background facts and circumstances, as follows:
(a)The offences were committed during the early hours of 11 January 2009 in a town in rural Western Australia.
(b)When the offending occurred she was aged 14 years. She was a friend of the appellant's sisters. The sisters and the complainant were of a similar age.
(c)The complainant knew the appellant as a result of her friendship with his sisters.
(d)The complainant was at the appellant's home. She was visiting his sisters.
(e)The offences occurred in the backyard of the appellant's home.
(f)When the offences occurred the appellant's sisters were inside the house.
The complainant's pre‑recorded evidence was played to the jury. She was then cross‑examined and re‑examined.
The State's case at trial was this:
(a)The complainant told police that the appellant had penile/vaginal, penile/anal and penile/oral intercourse with her, without her consent.
(b)The complainant suffered injuries to her face as a result of the appellant having struck her while committing the offences.
(c)The complainant complained of 'rape' to D immediately after the offences occurred, but did not specify how she was 'raped'. D was aged 17 years when the trial occurred. She was the complainant's second cousin.
(d)The complainant was dishevelled and distressed when she complained to D.
(e)Dr Clarke Wasiun examined the complainant on the morning of 11 January 2009.
(f)Dr Wasiun's examination revealed a small abrasion to her back, a bruise to the right side of her face and an abrasion to the left side of her lip.
(g)Dr Wasiun did not find any injury in the area of the complainant's vagina or anus.
(h)Dr Wasiun took forensic samples from within the complainant's vagina, from her perianal area (which he described as 'just around the anus; just in the area of the anus' (ts 127)) and from her mouth.
(i)Dr Christine Chin, a forensic scientist at PathWest Laboratory, analysed the forensic samples taken by Dr Wasiun. She did not detect any DNA from the samples. Also, she did not detect any spermatozoa or sperm cells in the vaginal swabs. However, she detected one sperm cell in the perianal swab and a few sperm cells in the oral rinse smear (ts 131 ‑ 132).
(j)The complainant was an honest and reliable witness.
The appellant did not give sworn evidence at the trial. He relied upon his video record of interview with police, which was conducted on 12 January 2009, and admitted in evidence. In the interview, the appellant admitted penile/vaginal intercourse with the complainant, but said that she had consented in fact to the intercourse, and he denied having had penile/anal or penile/oral sex with her.
The appellant's case at trial was this:
(a)He had consensual penile/vaginal intercourse with the complainant, but did not have penile/anal or penile/oral sex with her.
(b)The complainant's injuries were suffered when she fell while running from police the previous evening. They were not caused by any violence from him.
(c)The evidence of sperm cells added nothing to the State's case because there was no evidence as to the owner or the age of the sperm. In any event, the complainant conceded in her evidence that she had engaged in sexual activity with another male about a month before the alleged offending by the appellant (ts 68), and the sperm cells detected in the forensic samples could have come from that other male.
The evidence as to the complainant's prior sexual experience
The trial judge granted leave under s 36BC(1) of the Evidence Act 1906 (WA) for evidence to be adduced as to the complainant's prior sexual experience. Her Honour permitted this evidence to be adduced for two reasons. First, if the jury accepted the complainant's evidence that she had last had penile/vaginal sex about a month before the alleged offending by the appellant, and if the jury also accepted her evidence that she had never had a penis in her mouth or anus, then the jury may well be prepared to draw the inference that the State was asking them to draw, namely, that it was the appellant's sperm cells that were found in her mouth and perianal area (ts 220). Secondly, the jury may reason, perhaps, that a 14‑year‑old girl might not make an allegation of anal sex or, perhaps, oral sex to police unless she was speaking from experience; that is, a 14‑year‑old's exposure to sexual acts might be limited and, therefore, she would not talk about such acts unless they had been performed on her on the night in question (ts 220). No complaint is made in this appeal about her Honour having granted leave under s 36BC(1) or her Honour's directions in that regard.
The proposed ground of appeal
The proposed ground of appeal, as amended at the hearing, alleges that the verdict of guilty on count 3 is factually inconsistent and incompatible with the not guilty verdicts on counts 1 and 2 and is therefore unreasonable.
On 2 August 2010, Mazza J ordered that the application for leave to appeal be referred to the hearing of the appeal.
The appellant's submissions
Counsel for the appellant submitted that the verdicts of not guilty on count 1 (but guilty of the alternative offence of sexual penetration of a child between the ages of 13 and 16) and not guilty on count 2 mean that the jury were not satisfied beyond reasonable doubt that the appellant had sexually penetrated the complainant without her consent, whereas the verdict of guilty on count 3 means that the jury were satisfied beyond reasonable doubt that the appellant had sexually penetrated the complainant without her consent.
According to counsel, the different verdicts represent an affront to logic and common sense. It was submitted that the different verdicts suggest a compromise in the performance by the jury of their duty or, at least, a confusion in the minds of the jurors or a misunderstanding of their function or some uncertainty as to the legal differences between the offences. It was argued that this court should intervene to prevent a 'possible injustice'. In particular, the conviction on count 3 should be set aside and a judgment of acquittal entered.
Inconsistent verdicts: applicable legal principles
In Riley v The State of Western Australia [2007] WASCA 22 [16] ‑ [25], I examined the relevant decisions of the High Court on inconsistent verdicts. It is unnecessary to reproduce my review of the authorities.
In the present case, the appellant alleges that the jury's verdicts were factually inconsistent and incompatible. It is necessary for the appellant to satisfy this court that the verdicts cannot stand together; that is, that no reasonable jury who properly applied their minds to the facts of case could have arrived at the verdicts in question. If there is a proper way in which this court may reconcile the verdicts, and thereby conclude that the jury performed their functions as required by law, the verdicts will not be inconsistent in the relevant sense.
A jury is, of course, entitled to accept part, and not all, of a witness's version of events. Also, a jury, as the tribunal of fact, is entitled to 'work out for themselves a view of the case which [does] not exactly represent what either party [has] said': Williams v Smith [1960] HCA 22; (1960) 103 CLR 539, 545 (Dixon CJ, McTiernan, Fullagar, Kitto & Menzies JJ). That statement, made in the context of civil proceedings, has been applied to criminal trials. See Stevens v The Queen [2005] HCA 65; (2005) 227 CLR 319 [29]; WCW v The State of Western Australia [2008] WASCA 232; (2008) 191 A Crim R 22 [14].
The merits of the appeal
Where several offences of a sexual nature depend upon the complainant's evidence, the circumstances of the case may justify acquittal on some counts and conviction on others. Where the jury returns different verdicts, there is no general rule that they must necessarily have found the complainant generally to be untruthful or that the complainant's credibility was undermined in respect of the counts on which the offender was convicted.
In the present case, the trial judge gave directions, in orthodox terms, that the jury must give separate consideration to each count on the indictment and consider the evidence that related to it (ts 208); the jury's verdict did not have to be the same on each count (ts 208); the jury were entitled to accept the whole of a witness's evidence, accept part and reject part of a witness's evidence or reject the whole of a witness's evidence (ts 210 ‑ 213); and, in relation to the appellant's video record of interview with police, it was for the jury to assess what he had said in this interview and they were entitled to accept everything the appellant said or they may accept some things as the truth and reject other parts (ts 213).
In my opinion, there is a proper way in which the verdicts of the jury may be reconciled.
On count 1, which alleged penile/vaginal sex, the appellant admitted this intercourse in his record of interview with police and also through his counsel at the trial, but he asserted that there was consent in fact. The appellant's account of the penile/vaginal sex in the record of interview may have been sufficient to raise in the jury's mind a reasonable doubt as to whether the intercourse had occurred without the complainant's consent in fact.
As to count 2 (the penile/anal sex) and count 3 (the penile/oral sex), the forensic evidence at the trial as to the finding of a single sperm cell in the complainant's perianal area and a few sperm cells in her mouth may have been sufficient for the jury to reject the appellant's denials in his record of interview with police that any penile/anal or penile/oral intercourse had occurred.
The jury may then have accepted and been fortified by the complainant's evidence that although she had previously had penile/vaginal intercourse (about a month before the alleged offending by the appellant), she had never previously had penile/anal or penile/oral intercourse. Indeed, in her pre‑recorded evidence she expressed disgust at the alleged anal intercourse with the appellant (GAB 53) and the alleged oral intercourse with him which, on her account, included the appellant ejaculating in her mouth (GAB 55 ‑ 58).
The jury may have required some additional evidence (beyond the complainant's evidence) before moving to convict on count 2 or count 3. They may have found this additional evidence in the oral rinse smear which showed a few sperm cells in the complainant's mouth, consistently with the penetration alleged in count 3. However, they may not have found this additional evidence in the context of count 2 because only one sperm cell was found in the perianal swab (just around or in the area of the anus), and this may have left the jury in a reasonable doubt as to whether the appellant had actually penetrated the complainant's anus.
Also, as between count 2 and count 3, it is of some significance that the complainant gave more detailed and specific evidence in relation to the allegation of penile/oral sex than she gave in relation to the allegation of penile/anal sex. Her more detailed and specific account concerning count 3 may have had a greater impact on the jury in terms of its reliability.
Dr Chin said in cross‑examination that she was unable to express an opinion as to when the sperm cells detected in the perianal swab and the oral rinse smear were deposited. Nevertheless, the jury were entitled to reject the appellant's contention that the sperm cells could have come from the other male with whom the complainant had engaged in sexual activity (on her evidence, only penile/vaginal intercourse) about a month before the alleged offending by the appellant.
The jury's decision to acquit on the primary charge in count 1 and to acquit on count 2 does not, in my opinion, relevantly undermine the complainant's credibility on count 3, or indicate that the verdict of conviction on count 3 is inconsistent, in the relevant sense, with the verdicts of acquittal, or suggest that the conviction on count 3 is unsafe or unsatisfactory. It merely reveals that the jury were cautious and exacting in reviewing the evidence and discharging their heavy civic duty. It may also be that the jury took a 'merciful' view of the facts on count 1, this being a function which, as Gaudron, Gummow and Kirby JJ pointed out in MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348, 367 ‑ 368, has always been open to, and often exercised by, juries.
Conclusion
The jury's verdicts were not factually inconsistent or incompatible. The different verdicts do not represent an affront to logic or common sense. They were not unreasonable. The ground of appeal is without merit. Leave to appeal should be granted, but the appeal must be dismissed.
HALL J: I agree with Buss JA.
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