Fernando v The Queen

[2008] NSWCCA 97

New South Wales
Court of Criminal Appeal

CITATION:	Fernando v R [2008] NSWCCA 97 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	27 March 2008
JUDGMENT DATE:	7 May 2008
JUDGMENT OF:	McClellan CJ at CL at 1; Simpson J at 2; Price J at 3
DECISION:	Appeal against conviction dismissed.
CATCHWORDS:	Criminal law - conviction appeal - sexual crimes - different jury verdicts - jury verdicts not unreasonable
LEGISLATION CITED:	Crimes Act 1900 s 61M, s 66C(3), s 66C(4), Criminal Appeal Act 1912 s 6(1),
CATEGORY:	Principal judgment
CASES CITED:	M v The Queen (1994) 181 CLR 487 MacKenzie v The Queen (1996) 190 CLR 348 MFA v The Queen (2002) 213 CLR 606 R v Kiskarpati (Court of Criminal Appeal, 4 November 1998, unreported)
PARTIES:	Kurukulasuriya Fernando Regina
FILE NUMBER(S):	CCA 2007/3086
COUNSEL:	A Francis (Applicant) L Wells (Respondent)
SOLICITORS:	Barber Lawyers (Applicant) S Kavanagh (Director of Public Prosecutions)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	06/21/3181
LOWER COURT JUDICIAL OFFICER:	Cogswell SC DCJ
LOWER COURT DATE OF DECISION:	31 May 2007
LOWER COURT MEDIUM NEUTRAL CITATION:	Regina v KF

2007/3086

McCLELLAN CJ AT CL
SIMPSON J
PRICE J

7 May 2008

FERNANDO v R

Non-publication order in relation to the name of the complainant and any matter that can identify the complainant.

Judgment

1 McCLELLAN CJ at CL: I agree with Price J.

2 SIMPSON J: I agree with Price J.

3 PRICE J: This appeal raises the issue of unreasonable verdicts. On 12 February 2007 the appellant was arraigned in the District Court on an indictment containing three counts of aggravated indecent assault contrary to s 61M of the Crimes Act 1900 (counts 1 to 3) and one count of sexual intercourse with a child above the age of 14 years and under the age of 16 years in circumstances of aggravation, namely the child was under the appellant’s authority contrary to s 66C(4) of the Crimes Act (count 4). The alleged offences occurred on 9 June 2006 and involved a single complainant who was then 15 years old.

4 The appellant pleaded not guilty to each count and a jury was empanelled. On 16 February 2007 the jury returned verdicts of guilty to counts 1 to 3 inclusive. Verdicts of not guilty were returned on count 4 and on the statutory alternative contrary to s 66C(3). The appellant now appeals against the convictions. There are two grounds of appeal. They are as follows:

“1. The verdicts in relation to counts one, two and three are unreasonable having regard to the acquittal in respect of count four.
2. The verdict in relation to count three is unreasonable having regard to the acquittal in respect of count four.”

5 The grounds of appeal are based on the first part of s 6(1) of the Criminal Appeal Act 1912 which relevantly provides:

“The court on any appeal under section 5(1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable….”

6 The appellant points out that the evidence in relation to all counts on the indictment rested exclusively upon the jury accepting the reliability and accuracy of the complainant. There was in this case no evidential basis, the appellant argues, for the disparate verdicts. The acquittal on count 4 did not turn on the jury rejecting the Crown case in respect of the complainant being under the appellant’s authority as it had been exhaustively explained to the jury that if they were not satisfied of this element of the Crown case it could return a verdict of guilty in relation to the alternative count. The appellant further submits that there was no difference in the character of the evidence in relation to count 4 as distinct from the other three counts. In other words, this was neither a case where the jury may have reasoned that the complainant was a truthful and reliable witness who was understandably mistaken as to the events giving rise to count 4 nor was this an example of reliable evidence which for reasons independent of the complainant did not make out the elements of the offence. As to the second ground of appeal, the appellant argues the extent to which the evidence of complaint was rationally able to bolster the complainant’s evidence was confined to counts 1 and 2. The jury acquitted him, it is submitted, of count 4 on the basis that the complainant started to exaggerate. What is said to be a frailty in the complainant’s evidence should flow through to count 4 as well. It is not suggested that there is any legal or technical inconsistency between the verdicts on counts 1 to 3 and count 4.

7 The test to be applied by this Court where the reasonableness of a verdict by the jury is challenged is that stated by Mason CJ, Deane, Dawson and Toohey JJ in M v The Queen (1994) 181 CLR 487 where their Honours said (at 493):

“Where, not withstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.”
See also MFA v The Queen (2002) 213 CLR 606 (at 614 to 615).

8 The issue is whether this Court finds that upon the whole of the evidence that it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty of counts 1, 2 and 3. As was pointed out in MFA (at 618) the test established by s 6(1) of the Criminal Appeal Act is unreasonableness, not inconsistency.

9 The approach to be taken by this Court when a jury returns verdicts of guilty and not guilty in relation to charges of sexual assault upon a single complainant by an accused was considered in the joint judgment of Gleeson CJ, Hayne and Callinan JJ in MFA.

10 Their Honours said: (at 617)

“ Since the ultimate question concerns the reasonableness of the jury’s decision, the significance of verdicts of not guilty on some counts in an indictment must necessarily be considered in the light of the facts and circumstances of the particular case. Furthermore, it must be considered in the context of the system within which juries function, and of their role in that system. A number of features of that context were emphasised in MacKenzie [(1996) 190 CLR 348]. They include the following. First, as in the present case, where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count. This will often be accompanied by a specific instruction that the evidence of a witness may be accepted in whole or in part. Secondly, emphasis will invariably be placed upon the onus of proof borne by the prosecution. In jurisdictions where unanimity is required, such as New South Wales, every juror must be satisfied beyond reasonable doubt of every element in the offence. In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. This may not be unreasonable. It does not necessarily involve a rejection of the complainant’s evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition of want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant’s evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others. Thirdly, there is the consideration stated by King CJ in R v Kirkham , and referred to in the later cases: it may appear to a jury, that, although a number of offences have been alleged, justice is met by convicting an accused of some only. And there may be an interaction between this consideration and the two matters earlier discussed.”

11 Differentiated verdicts were also considered in the joint judgment of McHugh, Gummow and Kirby JJ in MFA. Their Honours adopted what was said in Mackenzie that “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 be generally accepted.” Their Honours recognised that juries will sometimes give effect to their innate sense of fairness and justice as well as to their sense of proportion and compassion.

12 In order to consider the grounds of appeal, it is necessary to refer to the trial and to the evidence in some detail.

13 During his opening address, the Crown Advocate told the jury that the indecent assaults involved:

Count 1: The appellant massaging the complainant’s breasts;

Count 2: The appellant kissed her nipples with his mouth;

Count 3: The appellant touched the outside of the complainant’s
vagina with his face.

14 The jury was informed that the fourth count involved the appellant having sexual intercourse with the complainant in the sense of cunnilingus when he kissed her on the clitoris. He explained that cunnilingus “has to do with the stimulation of a woman’s genitalia by the mouth.”

Relevant evidence

15 The complainant’s evidence-in-chief was presented largely by the playing of a pre-recorded videotape of an investigative interview she had with police on 12 June 2006. During that interview she told police of the appellant’s conduct which gave rise to the counts on the indictment.

16 The Crown case was that the complainant who was 15 years old and in year 10 telephoned the appellant after having seen his business sign in premises near her house and asked if she could do work experience with him. The appellant’s business involved massage therapy. On 19 May 2006 she went to the appellant’s house for an interview. An appointment was made for her to return the following Thursday on 25 May 2006 at which time the appellant gave her some books to demonstrate various massage techniques. He also gave her a demonstration massage. The complainant returned the following Thursday 1 June 2006 when the appellant gave her a massage and explained techniques. On this occasion the complainant demonstrated what she had learnt by giving the appellant a massage. This occurred again on 8 June 2006.

17 On the next day the complainant had a pupil free day and the appellant suggested that she accompany him to his Bankstown premises where she could see him work with a client. The complainant agreed and on the morning of 9 June 2006, the appellant drove her to the Bankstown premises.

18 The appellant told the complainant after they had arrived at Bankstown that the client he had that morning had cancelled and that he would give her a massage. The complainant went into the massage room leaving on her bra and underpants and laid on the massage table covering herself with a towel. The appellant entered the room and commenced a back massage. During the massage the appellant massaged the complainant’s neck, arms, head and back of her legs and feet explaining various techniques. The appellant then told her to turn and lie on her back and he massaged the tops of her feet and stomach. The towel she had covering her at this stage only covered her legs so that her bra was exposed.

19 She told police that after he had massaged her stomach:

A 239 “… he pushes my bra out of the way, he, like, I thought he was showing me a breast massage and then, because he said he can do them…”
A 240 “ Then he lowered his face, kissed my nipple and was rubbing his face, his cheek on my breast…”

20 He kissed her left nipple by placing his entire mouth over it. There was no tongue involved. This lasted no more than five seconds. He then rubbed his cheek on her breast. He repeated the kissing and rubbing on the right breast. In cross-examination, the complainant stated that the appellant touched her left breast first and then the right.

21 The appellant then continued by massaging the complainant’s stomach again and while doing this, he pushed the towel away and lowered her underpants.

The complainant said:

A 269 “ And then he pushed my underpants down and repeated what he did to my breasts, to my vagina”
A 274 “Yeah, he did the same as what he did to my breast. He kissed, kissed my vagina and then was rubbing his face.”

Q 275 “And what part of your vagina did he actually kiss ?”

A “The clitoris”

Q276 “So the top part of your…”

A “Yeah”

Q 277 “…vagina?”

A “Yeah”

Q 278 “And how long did that last for?”

A “About, between 5 and 10 seconds.”

22 The appellant did not say anything while he did this.

23 The appellant then stopped what he was doing and started massaging the complainant’s neck. She then pulled her underpants up and her bra down and covered herself with the towel. While he was massaging her neck, the appellant said: “If I’m a bad man tell me”. The complainant did not know what to say. The appellant then finished massaging her neck and left the room allowing the complainant to get dressed. In cross-examination, the complainant stated that she did not say or do anything because she did now know whether the appellant would become violent towards her, although he had never done anything to suggest he was capable of violence. She agreed that she had the opportunity to ring her mother when the appellant left the room but did not do so because she was afraid that he might over hear her.

24 When the appellant returned to the room, he had already undressed down to his underwear and had a towel wrapped around him. He asked the complainant to give him a massage and to copy his technique. She massaged him for about an hour but did not speak to him during that time. The complainant stated that she was ready to cry and just wanted to leave. In cross-examination, the complainant agreed that when the appellant was laying face down on the massage table she had the opportunity to run away. She stated, however, that she did not know where to go or what to do.

25 When she finished, the appellant got dressed and took her to lunch at the club. Before they got to the club, the complainant’s mother sent a message to her mobile telephone. The complainant messaged back asking her mother to come and pick her up. When they were in the club, her mother called her. The complainant was unable to speak because the appellant was there with her, so the conversation ended. The complainant then sent a message to her brother’s girlfriend, [AB], asking her to pick her up because the appellant had ‘harassed’ her. The complainant later found out that [AB] had not received the message at that time.

26 In cross-examination, the complainant agreed that her mother had asked her whether she was hurt or in danger, and that she had replied “No” to each of those questions. She agreed that she had replied “Yes” when asked by her mother whether she was bored. She stated that she did this because she did not want her mother to panic. In the SMS message she had sent to her mother before her mother called her, she asked to be picked up, but wrote that it would be okay if she could not. The complainant agreed that whilst she was having lunch with the appellant she sent a social SMS message to a friend after the telephone conversation she had with her mother.

27 The complainant told the appellant that she was tired because she had not gotten much sleep the night before, and he offered to drive her home. She got home about 2.00pm.

28 When she got home, she went to her room and told her mother that the appellant had harassed her and she started to cry. She then told her mother the details. Her mother rang her father and later that day, they went to the police station.

29 The complainant’s mother, EO, gave evidence that on 9 June 2006, at around lunch time, she received a message from the complainant asking to be picked up. EO called the complainant and asked if everything was okay. When she realised that her daughter could not speak freely, she asked her:

“ Are you hurt? ”

“Are you in danger?”

“It’s not what you’re expecting, or what you thought it would be?”

30 To each of these questions, the complainant answered ‘No’.

31 EO then asked the complainant whether she was bored, and the complainant replied that she was. EO told her that if she was only bored, then she could put up with it for a couple of hours before her father could pick her up. A short time later, EO received a SMS message from the complainant telling her not to worry because the appellant was driving her home.

32 When the complainant arrived home, she said, “He harassed me.”

33 EO said her daughter was agitated so she just followed her to find out what was going on. EO followed the complainant to her room and said “…what happened?” The complainant said, “He harassed me” and EO said “What do you mean?”

34 It was EO’s evidence that her daughter said:

“…something close to, ‘He was demonstrating a breast massage, and then he rubbed his face on my breasts, and then he rubbed his face between my legs and into my vagina’ and that’s as much as I let her say and put my arms around her and said, ‘This not your fault. I’m sorry, it’s happened’”.

35 EO described her daughter as shaking a lot and being upset.

36 Constable Bridges gave evidence that the complainant arrived at Campbelltown Police Station with her parents and a family friend at about 4pm on 9 June 2006. The police officer made notes in her notebook which were read out to the jury and were tendered in evidence (exhibit H). The notes recorded were:

“ YP attended station with parents and family friend. Said she had been receiving massage lessons from POI…”Said she arrived at 9.35 today at Rosemeadow business. They then drove to Bankstown. She received a massage for 1.5 hours. During the massage he started rubbing her breasts, then started kissing her breasts, then massaged her vagina, moved her undies to the side and started massaging her vagina. ”

37 During cross-examination, Constable Bridges accepted she had received training in relation to interviewing complainants in sexual assault matters and if the complainant had complained that the appellant had removed her bra, kissed her on the nipples, kissed her on the clitoris, pulled her underpants down to her thighs or rubbed his cheek on her vagina she would have made a note of it. She was trying to be as accurate as she could be in the words she recorded. After she made the notes in her diary, she referred the matter on to Detective Churchin.

38 In cross-examination the complainant stated that she had never told anyone that the appellant had used his hands to massage her vagina. She said that she was not shown the notebook entry after it was made.

39 Detective Churchin testified that he met the complainant with Constable Bridges at the police station on 9 June 2006. He said that at the time the complainant was upset and it was agreed that she would return on Monday 12 June 2006 to be interviewed. He asked the complainant to make some notes about what had happened and she returned on the Monday with that note. The note was read out by the complainant during the investigative interview with was played to the jury. The note stated:

“ He gave me at least an hour and a half massage. Within the last 5 mins he rubbed one breast. I thought he was showing me techniques on how to give breast massage. Then he lowered his face kissed my breast and rubbed his face against my breast. He repeated this to my other breast. At this point I didn’t know what to do, I was scared of what his reaction would be if I told him to stop. Then he rubbed my stomach and went further down with his hands. Pushing my underwear out of the way he did the same thing. Lowering his face kissing and rubbing his face on my lower genitals.”

40 [AB] gave evidence that during the afternoon on 9 June 2006, she went to the complainant’s house. The complainant’s mother answered the door, and she then saw the complainant coming from the kitchen. The complainant looked very upset. She asked the complainant what was wrong and the complainant asked her whether she had received the SMS message she had sent. Ms [AB] replied that she had not. She looked at her mobile telephone and realised that she had missed two messages from the complainant. She had received them that day sometime after 12.00pm. The first message said, “Can you come and pick me up? I’ve just been harassed.” The second message said, “Don’t worry, he’s driving me.”

41 Later that night, the complainant told Ms [AB] that she had gone with the appellant to his Bankstown clinic, and that after they got there, the appellant told her that his appointment was cancelled. The appellant massaged her whilst she was lying face down and started doing her back and arms. She had a towel over her top and bottom and he moved up. The appellant said she felt a bit uncomfortable but she let him go because she thought “this is what I had to learn if I wanted this job.” She said: “He put his head down on my stomach and started kissing and rubbed his face on my boobs. He then put his hands down my pants.” T 43 L 23-35.

42 Ms [AB] said the complainant was crying, was really upset and was a bit nervous.

43 On 14 June 2006, Senior Constable Churchin went to the appellant’s clinic and told him that he was making enquiries about allegations that he had sexually and indecently assaulted the complainant the previous day. After he had been cautioned, the appellant told the police officer:

“ I have been doing massage for 10 years. This girl, she rang me up and asked if I would teach her massage. At first I thought, No, because I normally charge to teach massage, but she said her parents would not help her with money and she wanted money to buy a car. I agreed to help her. She came for two massages. I massaged her. I showed her what to do and then I got her to do me, so I could see if she was getting the right muscles. I cannot believe she has said such things ”: T 52 L 43-53.

44 The appellant entered into an electronically recorded interview with police during which he said he did not massage the front of the complainant’s body nor did he touch her bra or underpants. He denied saying words similar to “Am I a bad man?”

45 Senior Constable Churchin gave evidence that the appellant did not have a criminal record of any kind.

46 The appellant did not give evidence at trial. Two witnesses who were his clients were called and they spoke of his respect towards women and of their lack of concern about the appellant’s attitude towards them. A Catholic priest and the brother of the appellant, a religious brother, testified as to the appellant’s good character.

47 The Judge, in his summing-up to the jury, instructed them that they were not obliged to accept the whole of a witness’s evidence but could accept or reject it in part. He pointed out that there were four trials for convenience being heard together and they would need to consider each of the four charges separately. He directed the jury that the complainant’s evidence must be scrutinised with great care before it could be satisfied beyond reasonable doubt that the accused was guilty in reliance upon her evidence.

48 As to the element of count 4 that the accused had sexual intercourse with the complainant, the Judge said:

“…in this case the only way that the Crown puts its case is cunnilingus, which is there, that he kissed or put his tongue on her clitoris. In this case, that is the specific allegation which is made.” (SU21)

49 It was not alleged by the Crown that the appellant had put his tongue on the complainant’s clitoris. The Crown case from the outset was that the appellant had kissed her on the clitoris.

50 Whilst taking the jury through the evidence of the complainant in respect to each count, the Judge said:

“So that touching of the clitoris, the kissing of the clitoris was as alleged by the Crown to be the sexual intercourse.”

51 In detailing the competing cases for the Crown and the appellant, the Judge referred to what were said to be inconsistencies by the appellant’s counsel in the complainant’s account.

Decision

52 The jury’s assessment of the complainant and the appellant’s account to police was vital. The jury clearly rejected the appellant’s denial of any sexual activity occurring, notwithstanding the evidence of his prior good character.

53 This is a case where a very early complaint of sexual misconduct by the appellant was made by the alleged victim. As soon as the complainant returned home, a complaint was made by her to EO, her mother.

54 As the judges of the facts, the jury could reasonably have found that the complaint to EO that “he rubbed his face between my legs and into my vagina” raised an allegation against the appellant in relation to the matter the subject of count 3. The complaint also squarely raised the allegation against the appellant in relation to count 1. The jury could reasonably have considered that count 2 was alluded to but was not described with the particularity upon which the Crown proceeded at trial.

55 The jury could reasonably have found that counts 1 and 2 were the subject of the complaint made that afternoon to Constable Bridges and to Ms [AB] later on that evening.

56 The complaints made on the day of the alleged events made no reference to the kissing on the clitoris which is the matter the subject of count 4.

57 The jury could reasonably have found that counts 1, 2 and 3 were the subject of the note which was read out by the complainant during the investigative interview which was played to the jury.

58 A complaint of kissing the clitoris was not made until the investigative interview on 12 June 2006 when the complainant was asked what part of her vagina was kissed.

59 During her closing address to the jury, counsel for the appellant focussed attention on what were said to be contradictions in the complaints. The complaints made to Constable Bridges of massaging the vagina and putting his hands down her pants were inconsistent with the allegations against the appellant in relation to counts 3 and 4.

60 In this Court, it was argued that the complaints made to Constable Bridges and Ms [AB] did not support the allegations against the appellant in relation to both counts 3 and 4 which ought to have led the jury to have a reasonable doubt with respect to count 3 as well as count 4.

61 The jury having seen and heard the complainant might reasonably not have attached much significance to the accounts given to those witnesses of the appellant’s alleged sexual activity in the area of her vagina. It was reasonably open to the jury to conclude that the complainant was a 15-year-old girl who was understandably reticent about disclosing such matters of great sensitivity to persons other than her mother.

62 The appellant’s contention that the acquittal on count 4 could not be explained by rejecting the Crown case that the complainant was under the appellant’s authority is plainly correct. The jury had been instructed by the Judge that if it was not satisfied of this legal element of count 4 it could return a verdict on the alternative count.

63 There is a proper way by which this Court, in my opinion, may reconcile the verdicts on counts 1 to 3 and count 4. It is to be found in a combination of the following circumstances:

(i) There were directions given to the members of the jury by the Judge that each charge would need to be considered separately and the complainant’s evidence needed to be scrutinised with great care before they could be satisfied beyond reasonable doubt of the guilt of the accused.
(ii) Count 4 involved greater particularity than the other counts. The jury was required to be satisfied beyond reasonable doubt that the appellant kissed the complainant on the clitoris.
(iii) No complaint was made by the complainant that she was kissed on the clitoris until the investigative interview with police. The jury was entitled to find that the other counts were the subject of the complaints on the day the alleged events were said to have occurred.
(iv) The understanding of the members of the jury of what they were required to be satisfied beyond reasonable doubt would not have been assisted by the Crown’s opening that cunnilingus “has to do with the stimulation of a woman’s genitalia by the mouth” and the Judge’s instruction that the Crown case was that the appellant kissed or put his tongue on her clitoris.

64 These matters considered in combination might well have led the jury to conclude that in all the circumstances the Crown had not satisfied them beyond reasonable doubt that count 4 had been established, whereas at the same time they did not entertain a reasonable doubt about the appellant's guilt in relation to counts 1 to 3. The verdict of not guilty on count 4 does not imply that the complainant has been disbelieved.

65 There is another way by which the verdicts may be reconciled. Counts 3 and 4 were factually closely related. A practical view may have been taken of the whole encounter by the jury which decided that verdicts of guilty on the three counts of aggravated indecent assault were sufficient to reflect the appellant’s culpability: MacKenzie v The Queen at pp 367-8; R v Kiskarparti (Court of Criminal Appeal, 4 November 1998, unreported).

66 Grounds 1 and 2 of the appeal have not been established. In my opinion, upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of counts 1, 2 and 3.

67 I would propose that the appeal against conviction be dismissed.

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26/06/2008	-	Typographical error - Paragraph(s) 10, 64 and 66
01/07/2008	-	Typographical error - Paragraph(s) 9
03/07/2008	-	Typographical error - Paragraph(s) 10