Eastley v The Queen
[2001] WASCA 355
•14 NOVEMBER 2001
EASTLEY -v- THE QUEEN [2001] WASCA 355
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 355 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:264/2000 | 11 SEPTEMBER 2001 | |
| Coram: | WALLWORK J ROBERTS-SMITH J EINFELD AJ | 14/11/01 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Appeal against conviction and sentence dismissed | ||
| B | |||
| PDF Version |
| Parties: | ROBERT DARREN EASTLEY THE QUEEN |
Catchwords: | Criminal law Sexual penetration without consent Unlawful and indecent assault Acquittals on some charges Convictions on two charges Whether verdicts unsafe, unsatisfactory or unreasonable Whether a direction was required concerning delay in complaint |
Legislation: | Nil |
Case References: | Crampton [2000] HCA 60; 23 November 2000 Crofts v The Queen (1996) 186 CLR 427 Dinsdale (2000) 115 A Crim R 55 Latham v The Queen [2000] WASCA 338 Lowndes v The Queen (1999) 73 ALJR 1007 Capper (1993) 69 A Crim R 64 D v R [2000] WASCA 137 Gillan (1991) 54 A Crim R 475 Jones v The Queen (1997) 149 ALR 598 Liddington (1998) 97 A Crim R 400 Little v The Queen [2000[ WASCA 87 Longman v The Queen (1989) 168 CLR 79 M v R (1994) 181 CLR 487 MacKenzie v The Queen (1996) 190 CLR 348 McComish v R, unreported; CCA SCt of WA; Library No 980529; 16 September 1998 Morley v The Queen [2001] WASCA 49 Nguyen v R [2001] WASCA 176 Nixon (1993) 66 A Crim R 83 Osland v The Queen (1998) 197 CLR 316 Pearce v Stanton [1984] WAR 359 R v Latham [2000] WASCA 338 R v Liddington (1997) 18 WAR 394 R v Ward [1999] WASCA 157 Skrajnic (1994) 71 A Crim R 347 The Queen v Ward [1999] WASCA 157 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : EASTLEY -v- THE QUEEN [2001] WASCA 355 CORAM : WALLWORK J
- ROBERTS-SMITH J
EINFELD AJ
- CCA 123 of 2001
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Sexual penetration without consent - Unlawful and indecent assault - Acquittals on some charges - Convictions on two charges - Whether verdicts unsafe, unsatisfactory or unreasonable - Whether a direction was required concerning delay in complaint
Legislation:
Nil
(Page 2)
Result:
Appeal against conviction and sentence dismissed
Category: B
Representation:
Counsel:
Applicant : Mr D Moen
Respondent : Mr S E Stone
Solicitors:
Applicant : David Manera
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Crampton [2000] HCA 60; 23 November 2000
Crofts v The Queen (1996) 186 CLR 427
Dinsdale (2000) 115 A Crim R 55
Latham v The Queen [2000] WASCA 338
Lowndes v The Queen (1999) 73 ALJR 1007
Case(s) also cited:
Capper (1993) 69 A Crim R 64
D v R [2000] WASCA 137
Gillan (1991) 54 A Crim R 475
Jones v The Queen (1997) 149 ALR 598
Liddington (1998) 97 A Crim R 400
Little v The Queen [2000[ WASCA 87
Longman v The Queen (1989) 168 CLR 79
M v R (1994) 181 CLR 487
MacKenzie v The Queen (1996) 190 CLR 348
McComish v R, unreported; CCA SCt of WA; Library No 980529; 16 September 1998
(Page 3)
Morley v The Queen [2001] WASCA 49
Nguyen v R [2001] WASCA 176
Nixon (1993) 66 A Crim R 83
Osland v The Queen (1998) 197 CLR 316
Pearce v Stanton [1984] WAR 359
R v Latham [2000] WASCA 338
R v Liddington (1997) 18 WAR 394
R v Ward [1999] WASCA 157
Skrajnic (1994) 71 A Crim R 347
The Queen v Ward [1999] WASCA 157
(Page 4)
1 WALLWORK J & EINFELD AJ: The applicant in this matter applies for leave to appeal against his convictions and sentence for two offences which involved sexual assaults on a woman with whom he had been living in a de facto relationship.
2 The applicant was tried in the District Court at Perth in a trial which began on 13 November 2000. He was charged with 12 counts. The learned trial Judge directed his acquittal on count 7. The jury returned verdicts of guilty on counts 1 and 12, and not guilty verdicts on the other counts.
3 The charges of which the applicant was convicted were, first, that on a date unknown between 22 January 1999 and 1 February 1999, he sexually penetrated the complainant without her consent by penetrating her vagina with his penis and thereby did her bodily harm. The second charge was that, on 14 March 1999, he unlawfully and indecently assaulted the complainant.
4 The charges of which he was acquitted included charges that he had sexually penetrated the complainant without her consent whilst armed with a knife, and sexually penetrated her with a vibrator without consent whilst armed with a knife. We will not set out the details of those charges as that is unnecessary for the decision.
5 When summing up to the jury before they retired, the learned trial Judge said that counts 1 and 12 were different to the other counts in the indictment because with respect to those charges, the appellant had said in evidence that he had an honest and reasonable but mistaken belief in the complainant's consent.
6 In relation to count 1, the complainant said in evidence that she and the applicant had had an agreement to sleep apart but he had been pestering her all day for sexual relations. The complainant said that finally she had gone to her room to get away from the applicant because she had been saying "no". However, he had come in and got on top of her. She had struggled, but he had pinned her down. He had his hand over her mouth. As she was trying to say "no", he was telling her to be quiet.
7 The applicant said in evidence that, on that day, the complainant had told him that she wanted to make a go of it. She had said, "I am going to bed". He had said to her, "I won't be far behind you". He had then gone into the room and asked her whether she wanted to make love. She had looked over her shoulder, smiled and said, "Mm". The applicant had then
(Page 5)
- had sexual intercourse, but when he had noticed she was crying loudly he had stopped.
8 The Judge told the jury:
"There is no suggestion in our law that you need an engraved invitation when you have an ongoing relationship between two people. If you think it may reasonably have happened in that way, then it would seem to me you wouldn't be satisfied beyond reasonable doubt that she had not consented. But if you look at that and you say, 'No, I am satisfied she didn't consent', you also need to be satisfied that he didn't have an honest and reasonable but mistaken belief that she was consenting. Our law provides for these circumstances. Sometimes here, on these facts, it would seem to me stark contrast in fact. She's saying, 'Look, I didn't consent and I made it as clear as day that I was not consenting…' He's saying, 'She did consent. She looks over her shoulder, she smiles, she says 'Mm', on a day in which she's already told me that she wants to try and make a go of things.' But sometimes juries pick up facts that we don't pick up and if it were the case that somewhere in the middle there you thought, 'Well, he might have honestly believed she was consenting', then he wouldn't be guilty. I just want to tell you about that. "
9 The learned Judge explained to the jury what an honest and reasonable mistaken belief was; that even if the jury was satisfied that the complainant had not consented, they would also need to be satisfied that he did not have an honest and reasonable but mistaken belief that she was consenting.
10 The Judge told the jury that it was not for the applicant to prove that he had had an honest and reasonable but mistaken belief. The Crown had to establish beyond reasonable doubt that he did not have an honest and reasonable but mistaken belief. The Judge said:
"Of course what the Crown says to you in relation to count 1 is that you have heard her evidence and she's told you there was no chance of him - she told him straight out, she didn't want sex. She went into the bedroom to get away from him and she was making it very clear. There was no way he made a mistake."
11 The Judge repeated to the jury that the applicant was saying that she had consented. The Judge then said:
(Page 6)
- "Before you can convict you must be satisfied she didn't consent or he didn't have an honest and reasonable but mistaken belief she was consenting. The same applies to count 12."
12 The Judge then discussed the evidence the complainant had given concerning count 12, which was that the accused had come into the room where she was and asked if he could kiss her and cuddle her. She had said "no", but he had pushed her down on her back with her legs still half over the edge of her bed and had got on top of her. She had been trying to push him off. She said that he had said that she was either going to make love to him or he was going to rape her. She had said she didn't want any of that and he had been very emotional and very aggressive. She had tried to be as forceful as she could be. He had persisted but had then got off her and left the room. The Judge said that she had not attempted to deal with the evidence in detail, but only its outline.
13 The Judge then read the transcript of the applicant's evidence with respect to that event. That was to the effect that when the applicant had gone into the room, the complainant had commenced getting undressed and jumped into bed and had asked him to hurry up. He had commenced to have sexual intercourse with her. She was crying. He had then got out of bed. He said: "I just said I couldn't take it any more; she needed to get help". When asked, "Do you say that occurred with or without her consent?", his answer was, "I would say with her consent the way she was talking".
14 The Judge told the jury that again the issue was whether they were satisfied that the complainant had not consented:
"But if you were satisfied that she did not consent you need to be satisfied he did not have an honest and reasonable but mistaken belief she was consenting. Again the Crown would say to you, 'There's no chance of that. She was making it really clear.' No one could make a mistake about that. He says … I don't have to go through it again. I have read out his version and her version of what happened. Now you may be asking yourself, 'Well, why does that apply to count 1 and count 12 and not the other counts?' The reason it applies to count 1 and count 12 and not the other counts is that there is absolutely no room for any sort of mistake on those other counts. Somebody is telling you a terrible lie in relation to those other counts. In relation to count 1 and count 12 neither the Crown nor the defence actually say it was an honest and reasonable but
(Page 7)
- mistaken belief. The Crown says, 'She was not consenting', and he says, 'Look she just was. Okay.' But when you go into the jury room we don't know how you might start thinking about that, if there's a bit of room to think about it. So we want to make it clear to you that unless the Crown has negatived an honest and reasonable but mistaken belief, then that applies on those counts. In relation to the other counts it simply could not possibly apply."
15 It is apparent that the Judge separated counts 1 and 12 from the other charges. Secondly, the applicant admitted sexual acts with the complainant on those occasions. The jury found that the applicant was guilty of those two charges. In doing so the jury must be taken to have accepted that the complainant did not consent to sexual intercourse and to have rejected the defence of honest and reasonable belief that she was consenting.
16 On the applicant's behalf in this appeal it was said that the verdicts of the jury on counts 1 and 12 were unsafe and unsatisfactory because the verdicts on the other counts on which the applicant was found not guilty had indicated that the jury considered the complainant's evidence to be unreliable; that the conviction of the applicant on counts 1 and 12 meant that the jury had acted unreasonably in convicting the applicant on those counts.
17 In our view, there was nothing advanced on the applicant's behalf to sustain those contentions. The Judge adequately explained to the jury the issues with respect to those two charges. The fact that the jury acquitted the applicant on other charges where he had denied that he had offended does not by itself make the convictions on counts 1 and 12 unreasonable. Further, in our view, the applicant's contention that the learned trial Judge misdirected the jury on the proper test to be applied when considering whether the accused had an honest and reasonable but mistaken belief that the complainant was consenting, is not correct. The directions to the jury were correct on that question.
18 When discussing the other counts in the indictment, the learned Judge had told the jury that the differences in the evidence of the complainant and the applicant were so stark "that someone is telling you a terrible lie. As you recall, on all of those other counts she says he had a vibrator, he had handcuffs, and he had a knife, and he says he did not. Since the burden of proof is upon the Crown, the Crown case depends on you accepting the complainant's evidence that she was sexually penetrated
(Page 8)
- as she said and she did not consent. The Crown case depends on you accepting that evidence beyond reasonable doubt, notwithstanding the denial by the accused. So you can't convict unless you're satisfied of the truth and reliability of the complainant's evidence."
19 The Judge told the jury of the complainant's evidence concerning those alleged incidents; that the jury might or might not accept the defence evidence in full, in part, or at all. But unless the jury was satisfied of guilt, it must acquit. The Judge said: "Considering the evidence of the defence may have one of four results: it may have no effect, it may convince you of innocence; it may raise a reasonable doubt or it may strengthen the prosecution case".
20 The Judge directed the jury on the question of the alleged lies which the prosecution said the accused had told and gave appropriate warnings about alleged lies told by an accused person. Her Honour explained to the jury when a lie can constitute an admission against interest; that the Crown case was that the applicant had lied to the police about the vibrator and handcuffs: "He told the police he never had the vibrator and he never had handcuffs".
21 The Judge discussed the applicant's evidence concerning the vibrator. It was to the effect that he had suggested the use of a vibrator but that the complainant had refused and so he had given the vibrator away. He had never tried to use it. Further, that the applicant had said that the handcuffs had related to a joke with a friend in Tasmania and that he had thrown them away. The Judge told the jury that the Crown contended that the applicant had told lies and that they had been told out of a consciousness of guilt.
22 It is apparent that the jury were not prepared to convict the applicant on those counts where the relevant acts had not been admitted by him. However, they were prepared to convict him when he had admitted the acts alleged to constitute the relevant offences. There was nothing unusual in a jury taking that course.
23 It was pointed out for the applicant that the Judge had said to the jury:
"The Crown put her before you as an honest and truthful and reliable witness. They say that you can be satisfied beyond reasonable doubt of the truth and reliability of her evidence."
(Page 9)
24 And with respect to the counts, other than counts 1 and 12, the Judge had also said:
"Somebody is telling you a terrible lie in relation to those other counts … In relation to the other counts … you couldn't get to that point because they are so stark and somebody is telling you a terrible lie … Since the burden of proof is upon the Crown, the Crown case depends on you accepting the complainant's evidence that she was sexually penetrated as she said and she did not consent. The Crown case depends on you accepting that evidence beyond reasonable doubt, notwithstanding the denial by the accused. So you can't convict unless you are satisfied of the truth and reliability of the complainant's evidence."
25 It was submitted for the applicant that the jury had not been satisfied of the truth and reliability of the complainant's evidence because they had acquitted the applicant on the other counts. That meant that the jury should also have acquitted him on counts 1 and 12.
26 In our opinion, that contention should not be upheld because the applicant admitted having performed the relevant acts in counts 1 and 12. That was the difference between the charges.
27 The next ground of appeal argued for the applicant concerned what was submitted to be "the lack of a Longman direction, which was not given by the trial Judge". This question concerned the delay by the complainant in making a complaint in respect of the applicant's conduct.
28 The complainant had said in evidence that she had spoken to the applicant's mother a matter of days, to a couple of weeks, after the event. When asked why she had not told anybody before that, she said:
"I was still coming to terms with it happening. It had been - it wasn't something I was expecting to happen. I wasn't prepared for it to happen. … I was still giving Robert some benefit of being able - of making up for it."
29 In cross-examination it was put to the complainant that she had not told the applicant's mother that he had raped her. The complainant said that she had done so.
30 It was submitted for the applicant that there had been no corroboration and no other evidence led by the Crown in relation to that alleged conversation with the applicant's mother.
(Page 10)
31 Evidence had been given by the complainant that on 17 March 1999 (the first offence was alleged to have been committed between 22 January 1999 and 1 February 1999) she had removed herself from where she had been living because she had been getting continual approaches from the accused. He was not leaving her alone. She had then gone to the Subiaco Police Station and it was then that she had first spoken to the police officers about what she said had been happening. It was submitted that that had been quite some time after the period of time referred to in the indictment.
32 The complaint made on 17 March was only three days after the incident on 14 March which was the subject of count 12.
33 It was submitted that the delay in complaining of the incident alleged in count 1 was important because the complainant had spoken of an injury to her lip and an injury to her elbow; that there had been no evidence of those injuries before the court at all, apart from the complainant's evidence; that there had been no corroboration, for example, by a doctor.
34 Under cross-examination, the complainant had been unable to identify where it was on the lip that she had been cut. It was submitted for the applicant that the injury was important in this case because it had been alleged in count 1 that the applicant had done the complainant bodily harm. The delay in complaining meant that that aspect of the matter could not be checked. There had been no independent corroborative evidence of the injury.
35 In our view, this was not a case (as in Longman) where there had been an inordinate delay. There had not been a delay of many years, . However, it was put for the applicant that in fairness to him there had been an inability on his part to test the evidence.
36 In our view, the answer to that proposition is that, taking into account the short time after the offence when the complaint was made, if there had been any evidence which the applicant could have called he would not have been badly prejudiced in obtaining it. For example, if the applicant had known that other persons had seen the complainant during the relevant time, he would have remembered who they were and where they would have seen her. He could have called those persons as witnesses. That is a different case to that in Longman where approximately 20 years had elapsed.
(Page 11)
37 Reliance was also placed by the applicant on the decision in Crampton [2000] HCA 60; 23 November 2000. In that case, Gaudron, Gummow and Callinan JJ had said:
"The trial Judge should have instructed the jury that the appellant was, by reason of the very great delay, unable adequately to test and meet the evidence of the complainant. … Almost all of the passage of the majority in Longman to which we have referred (with appropriate adaptations to the circumstances of this case, including that because of the passage of so many years, it would be dangerous to convict on the complainant's evidence alone without the closest scrutiny of the complainant's evidence), should have been put to the jury."
38 In Crampton's case, the passage of time was 9 or 10 years.
39 It was conceded by counsel for the applicant that the time periods in Longman and Crampton were quite different to those in this case. However, it was contended that in this case there had been an inability on the part of the applicant to test the evidence and to find out whether the complainant's evidence was truthful. Further, there had been no independent corroborative evidence at the end of the day to assist the jury in relation to the injuries. It was said that the learned trial Judge had not asked the jury to scrutinise the evidence very carefully.
40 The applicant's next contention was that the learned trial Judge had failed to give the jury a direction in terms of the decision of the High Court in Crofts v The Queen (1996) 186 CLR 427.
41 Counsel for the applicant referred the Court to the fact that, after the jury had retired, defence counsel had asked the learned Judge "whether there should have been some sort of Crofts direction". When the Judge asked what was meant by that suggestion, it was said:
"… We would be wanting your Honour to say that the delay in making a complaint has hampered the accused's ability to … "
- The learned Judge replied:
"No, I'm not prepared to say that. It wasn't long enough and that's part of really a Longman type thing and it's only a couple of months. On the facts of this particular case how could that be so? I mean he says 'we had consensual sexual intercourse' and she says 'did not"."
(Page 12)
- Counsel then contended that there were injuries which the complainant had alleged, which had not been apparent at the time she went to the doctor. The learned Judge said:
"That may hamper the Crown rather than hamper him. I would not be prepared to give that direction in the circumstances."
43 At 448, Toohey, Gaudron, Gummow and Kirby JJ said:
"But in the particular circumstances of a case, the delay may be so long, so inexplicable, or so unexplained, that the jury could properly take it into account in concluding that, in the particular case, the allegation was false."
44 Their Honours said:
"Here the delay was objectively substantial, being a matter of years. Delays of that order require a Judge to give 'the jury a direction which is meaningful, and which is adequate, to enable the jury to make a responsible evaluation of the matter'."
45 At 451, the Justices said:
"Two qualifications to the duty to provide the warning suggested by Kilby may be accepted. The first is where the peculiar facts of the case and the conduct of the trial do not suggest the need for the warning to restore a balance of fairness. The second is that the warning should not be expressed in such terms as to undermine the purpose of the amending Act by suggesting a stereotype view that the complainants in sexual assault cases are unreliable or that delay in making a complaint about an alleged sexual offence is invariably a sign that the complainant's evidence is false."
46 In Crofts it was held that the Judge's remarks to the jury did not adequately cover the situation in that case. However, in our view, that is not the situation here, where the learned Judge told the jury that the complainant had said she had been under considerable emotional pressure from the applicant; further, she had said that the applicant had made two attempts to commit suicide. The Judge had noted to the jury that there
(Page 13)
- was mention in the letters of the applicant of ongoing threats to commit suicide. Her Honour told the jury that the applicant had said that she had felt she had lost control of her life.
47 In our view, in this case, there was no need for what was described as "a Crofts type warning to the jury".
48 We do not think that the applicant has established any of his grounds of appeal against conviction, and would dismiss the appeal in that regard.
Application for leave to appeal against sentence
49 The applicant was sentenced to 3 years' imprisonment for the offence alleged in count 1 of the indictment and to 6 months' imprisonment cumulative for the second offence. He was ordered to be eligible for parole. The sentences were backdated to 4 November 2000.
50 It was contended for the applicant that the 3 year term of imprisonment was excessive. The maximum prescribed for such an offence was 20 years' imprisonment.
51 It was submitted that because the two persons concerned had been living in a de facto relationship which had been "on again, off again" and had continued after the offence, the sentence was too long; that the applicant had not committed any offence before the one in question; that he had apologised profusely and had shown remorse. It was suggested the sentence should have been in the range of 2 years' imprisonment and that it should have been suspended. It was submitted that the learned Judge had not considered the aspect of rehabilitation.
52 When sentencing the applicant, the learned Judge said, amongst other things:
"On the positive side, and there's a lot on the positive side, you have no prior convictions of any description. You have an outstanding work record and you've been exceptionally kind and caring to a number of people you have encountered in your life. Indeed, in my view you put them first. I have a number of beautiful references for you which indicate that this behaviour is such a reversal for you that they cannot believe you did it. But you did, and I hope someone will help you to look at the issues you have realistically. Nevertheless, your past exemplary behaviour is certainly a factor to be considered, not only for the past but it gives us hope for the future so far as any suggestion
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- of re-offending is concerned, and one hopes that you will eventually return to that life. It has been urged upon me that I should suspend any prison sentence but I am not prepared to do that. These matters are far too serious for that and they must be dealt with on the basis of their seriousness. At the same time they are certainly not at the higher end of the scale in terms of sexual offences and I take into account that after the first offence you and the complainant continued to live together for a period of time and that on the last offence you desisted of your own free will. Those are factors to be taken into account."
53 It is apparent that the learned Judge thought that she could not, consistently with the seriousness of the offence, suspend the sentence for it.
54 It was submitted that the learned Judge should have made it patently clear that she had considered the issue of rehabilitation and said words to the effect that "it's not an option in this case". It was submitted that the Judge had needed to turn her mind to rehabilitation and that patently was not done in this case; that, in essence, the application for leave to appeal against sentence was in respect of the failure to suspend the term of imprisonment.
55 The most experienced Judge concerned was of course very well aware of the importance of rehabilitation when considering the question of the suspension of the sentence. The law does not require that a Judge should specifically refer to each possible aspect of the sentencing process when sentencing convicted persons. If it could be said in this case that there was an obvious call for a suspended sentence, then it might be suggested that the Judge had not sufficiently discussed that aspect of the matter. But in our view, in all the circumstances of the case, it could not be said that the sentence of 3 years' imprisonment for the offence of sexual penetration without consent was inappropriate in any way, or that the sentence should have been suspended.
56 When considering whether a sentence should be suspended, all the circumstances of the offence, and relevant to the offender, are relevant - Dinsdale (2000) 115 A Crim R 558, at 580 - see also Latham v The Queen [2000] WASCA 338, per Parker J at [9]. Her Honour stated did not think the sentence should be suspended because the offences were too serious. The Legislature, by providing a maximum penalty of 20 years' imprisonment for this type of offence, has made it quite clear how serious such offences are.
(Page 15)
57 In Lowndes v The Queen (1999) 73 ALJR 1007, the Chief Justice and five other Justices of the High Court said:
"The discretion which the law commits to sentencing Judges is of vital importance in the administration of our criminal justice system."
58 In this case, there was nothing in either the facts or the sentencing remarks of her Honour which indicates any error in the sentencing process.
59 In our opinion, the application for leave to appeal against sentence should be refused.
60 ROBERTS-SMITH J: I have had the benefit of reading in draft the reasons published by Wallwork J and Einfeld AJ. I agree with those reasons and have nothing further to add.
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