Finau v The Queen
[2021] ACTCA 17
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Finau v The Queen |
Citation: | [2021] ACTCA 17 |
Hearing Date: | 18 February 2021 |
DecisionDate: | 2 July 2021 |
Before: | Burns, Loukas-Karlsson and Charlesworth JJ |
Decision: | See [132], [144] |
Catchwords: | CRIMINAL LAW – appeal from a verdict of guilty on a charge alleging sexual intercourse without consent – appellant not calling or giving evidence at trial – prosecutor tendering mixed statements of the appellant – trial judge concluding the evidence of the appellant’s version of events did not give rise to a reasonable doubt as to his guilt – consideration of weight to be afforded to a record of police interview in which the appellant made both incriminating and exculpatory statements – whether the trial judge engaged in erroneous reasoning in considering the appellant’s version of events – whether such an error gives rise to a miscarriage of justice – task of Court on appeal – consideration of the role of the reasons of the trial judge in the discharge of the Court’s function on an appeal – verdicts not unreasonable – no miscarriage of justice |
Legislation Cited: | Crimes Act 1900 (ACT) ss 52, 54 Evidence Act 2011 (ACT) ss 81, 144, 165B Supreme Court Act 1933 (ACT) ss 37O, 68C |
Cases Cited: | De Silva v The Queen [2019] HCA 48; 268 CLR 57 Fennell v The Queen [2019] HCA 37; 93 ALJR 1219 SKA v The Queen [2011] HCA 13; 243 CLR 400 |
Parties: | Ropati Dominic Finau ( Appellant) The Queen ( Respondent) |
Representation: | Counsel B Walker SC with M Jones ( Appellant) S Drumgold SC with K McCann ( Respondent) |
| Solicitors Kamy Saeedi Law ( Appellant) ACT Director of Public Prosecutions ( Respondent) | |
File Number: | ACTCA 23 of 2021 |
Decision under appeal: | Court: Supreme Court of the Australian Capital Territory Before: Murrell CJ Date of Decision: 16 June 2020 Case Title: R v Finau Citation: [2020] ACTSC 155 |
THE COURT
The appellant was tried by judge alone on indictment containing three charges: one count of inflicting actual bodily harm with intent to engage in sexual intercourse in contravention of s 52 of the Crimes Act 1900 (ACT) (Crimes Act) (count 1) and two counts of sexual intercourse without consent contrary to s 54(1) of the Crimes Act (counts 2 and 3). He was found guilty on count 3 and acquitted of the other charges.
Pursuant to s 37O(2) of the Supreme Court Act 1933 (ACT) (Supreme Court Act), the appellant appeals from the guilty verdict on two grounds, namely:
(a)The verdict … is unreasonable and cannot be supported, having regard to the evidence (Ground 1); and
(b)The trial judge impermissibly and unfairly introduced evidence into her deliberations that was not before her Honour and upon which no submissions had been made or opportunity to make submissions was provided to the defence, giving rise to a miscarriage of justice (Ground 2).
The second ground of appeal has a singular focus on a passage of the reasons of the trial judge in the course of explaining why an account of events given by the appellant did not give rise to a reasonable doubt as to his guilt. The same passage is to be considered in determining whether the verdict is unreasonable or cannot be supported, having regard to the evidence.
For the reasons that follow, the point taken in respect of the impugned passage is decided in the appellant’s favour. However, identification of that error does not render the verdict unreasonable, nor does it give rise to a substantial miscarriage of justice.
It follows that the appeal must be dismissed.
The evidence
The Crown led evidence from the complainant, four friends of the complainant (referred to by the initials S, DC, OT and NL) a friend of the appellant (referred to as UD) and the informant, Senior Constable Joel Kirby. The complainant’s evidence-in-chief was given by way of a police interview recorded on 5 March 2019 admitted pursuant to s 52 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (EMP Act).
A recording of a police interview with the appellant was also played.
The appellant did not call evidence in his case.
The evidence of the informant related to the timing of some events. It is not contentious.
The complainant’s evidence
The complainant’s evidence-in-chief together with that of the informant is summarised in the appellant’s written submissions in terms that are not challenged. It is convenient to extract that summary here as encapsulating those parts of the evidence that the appellant asserts to be material to the grounds of appeal. Footnotes have been removed and names anonymised.
The complainant’s evidence-in-chief (‘EICI’) was by way of a police interview conducted on 5 March 2019. The complainant went to Civic with a friend, S. They arrived in Civic at about 11.30pm on 23 November 2018. They went to Mooseheads, and then Kokomo’s arriving at around 12 midnight and 12.30am on 24 November 2018. On the way out of the club the complainant ran into the appellant. It was not a planned meeting. The appellant was with a large group of men, some of whom were arguing with the bouncers. The appellant and complainant knew each other having both worked at ACTEW. They did not know each other well. They started talking. The appellant pretended in jest that he was engaged to the complainant and she went along with the joke. The complainant’s friend S asked her if she was coming with him, but she told him she would stay with the appellant. The complainant and appellant, alone with each other from this point, went into Kokomo’s and had a shot. They went to another club, the Playground, where they continued drinking. They danced and kissed while there.
The appellant suggested on a number of occasions they go back to the complainant’s place. The complainant wanted to stay out in Civic. She received a message from a friend at Mooseheads so headed there. According to the complainant, the appellant said he did not want her to go in but they entered in any event. The complainant described walking up to her friend OT who was on the dancefloor, and hugged her. The complainant said hi to OT’s boyfriend. Her evidence was that ‘…the second that I – her boyfriend was there and I said ‘Hello’ to him, he [the appellant] ran and grabbed my arm and pulled me away, and tried to dance with me and tried to start kissing again…I tried to …push [him] away from me and talk to them….as I was trying to say and everything, he pulled me away again and was like, ‘Okay, we’re going home now’’. The complainant’s evidence on this point is completely at odds with the evidence of OT which is referred to below.
The appellant suggested that they catch a taxi to her house. According to the complainant, she said she was tired, and suggested they should get separate taxis or Ubers, or the appellant could share her taxi and then go home from there. During the ride to Belconnen where her apartment was, the appellant put his head in her lap and asked her to stroke his head which she did. She spoke to a friend NL on the way home and said she was with the appellant. According to the complainant she told NL that the appellant was going to go home. The date stamp for a message from NL to the complainant was 2.06am on 24 November 2019. They engaged in a call for four minutes 27 seconds while the complainant and appellant were in the taxi. At 2.35am NL texted ‘Oooo have fun’. This was after NL and the complainant spoke in the taxi on the way to the complainant’s house.
When they arrived outside the complainant’s apartments, the complainant asked the taxi driver if he could keep going and take the appellant, but the appellant instead paid for the driver and got out. She suggested they wait for another taxi but the appellant said he would come up to her apartment and get a drink of water and go to the toilet. The complainant tried to get his address from him to order him a taxi but he did not give it.
Once upstairs in the complainant’s apartment, the complainant went into the only bedroom where she just kept clothing. She changed into long pyjama pants, a T-shirt and cardigan. When she came into the main room, the appellant was lying on the sofa bed with just his underpants on. In her opinion he was quite drunk and seemed to be falling asleep. She gave him his long pants. He started to put them on and then pointed out that he had an erection. He laid down again and asked her to order an Uber for him which she attempted to do. She kissed him once and he kept trying to kiss her. The appellant started touching her body. She pushed him away and said ‘No, I don’t want this’. The appellant pinned the complainant down and at one stage put his hand over her mouth. He pulled her pyjama pants and underwear off with his feet. At some point the complainant tried to push the appellant away by pushing on his wind-pipe and hit him in the face. The complainant then closed her eyes and felt a strike to her left cheekbone. This was the assault the subject of count 1.
The appellant used a finger to, in the words of the complainant, find the ‘access point’ and once he located her vagina, he discontinued any digital penetration. The appellant penetrated the complainant with his penis while lying on top of her. This lasted for a minute or so until the complainant’s cat climbed on to the bed. When the appellant realised the cat was there he jumped up exclaiming that he hated cats and they were terrifying. From that point on the appellant changed according to the complainant; ‘It was as if he was there and we were best mates.’
The complainant called a taxi from within the apartment shortly after and went downstairs in the elevator with the appellant to wait for it. This was played and tendered: exhibit 8, MFI 2 (transcript). The informant gave evidence that the call was placed at 3.12.54 am. The complainant’s evidence was that they waited for 40 minutes together outside her apartment and finally flagged down a taxi. The informant’s evidence was that a taxi picked up from that address at 3.28.45 am arriving in Crestwood (where the appellant lived) at 3.54.am. That is a period of just under 16 minutes between the call being placed, and the appellant getting into a taxi, during which time the appellant and complainant went down in the elevator together and the complainant waited with the appellant.
Once back in her apartment, the complainant took a series of photographs of her left cheek. Her evidence was that she did so in order to be able to see injury to her left cheek, rather than keep a record. The photographs were taken in three sessions: at 3.50am on 24 November 2018 (exhibit 2, photos 1-5), at 4.07am on 24 November 2018 (exhibit 2, photos 6-11) and on 25 November 2018 (exhibit 6, photos 12-14).
The complainant told police she noticed a bit of very mild swelling that was gone within two or three days but it wasn’t seen by anyone as she just stayed home for a few days. At some stage she went to a doctor and had tests carried out but did not tell anyone at the medical centre what had happened. No medical evidence was led at the trial.
In terms of complaint, she told an ex-partner, DC, one to two weeks after the event but did not tell him the full story about how she and the appellant had kissed beforehand as she and DC were still working on their relationship. She told two friends, [a friend who did not give evidence at the trial] and NL, the full story.
In cross-examination, the complainant said:
· the appellant was not involved in a fight on the night of 23 November or early morning of 24 November 2019;
· the appellant was “quite drunk” but not “completely intoxicated” when they were at the nightclubs, but was significantly more intoxicated in the taxi on the way back to the apartment;
· on 25 November 2018, she had attended a powerlifting competition where DC was competing;
· she saw DC again a week or possibly two weeks later and told DC and another friend, NL, what happened on that day;
· the appellant had seen her cat when first entering the apartment and at that point he had made a reference to hating cats;
· there were no red marks on her wrists nor any marks on her face from the pressure applied by the appellant putting his hand over her face;
· the swelling on her left cheek was gone within two days, and the bruising remained for another couple of days but was “fading very quickly”;
· she had told police that there was “very mild swelling”, that the injury was not black and that the appearance of inflammation was gone within two to three days;
· she had not pointed out a bruise on her face to DC when she told DC of the incident because it had already gone;
· she had only been hit once and that if she had told someone that the appellant had slapped her, that would be incorrect; and
· she had gotten into the lift with the appellant willingly.
The complainant denied that the appellant had said “I didn’t know you were so kinky” in the apartment after ceasing sexual intercourse and confirmed her evidence that the comment was made when the appellant and the complainant were downstairs waiting for the taxi to arrive.
Evidence of the complainant’s friends
OT’s evidence was that she had a brief conversation with the complainant at Mooseheads nightclub when the complainant was with the appellant. OT did not recall seeing the appellant grabbing the complainant. The conversation ended when OT went to the bathroom.
DC’s evidence was that he had formerly been in a relationship with the complainant. He confirmed that he had participated in a powerlifting competition on 25 November 2018, that the complainant had attended and that he had not noticed anything unusual about her on that day.
DC gave evidence of a conversation with the complainant possibly a week afterward in terms summarised by the trial judge as follows:
73.She told him that she had been out with a friend when she had bumped into a workmate. She had wanted to go home. The workmate had been drunk and she had wanted to ‘shout’ a taxi home for him. She had travelled in the taxi with him. As he had wanted to use the bathroom, he had come up to her apartment. The complainant told DC that the accused had ‘hit her in the face’. As the complainant said this, she indicated an area on her face and DC saw ‘a bit of bruising’ under one eye. He asked her whether that was the result of the hit and she said that it was.
74.DC probed, asking the complainant what was ‘really going on’ and the complainant disclosed that she had been ‘raped’. He recalled that she said that:
After everything, it was just as if nothing happened. It was just an abrupt stop. She paid for a taxi or an Uber and he just went home, and I believe she walked him out of the apartment.
75.The complainant elaborated, saying that, after she had gone upstairs with the accused ‘he just changed’. She said that she had brought the accused up to her apartment for two reasons. One reason was that he had had a fight. The main reason was that he had said that he needed to use the bathroom.
In about mid-December DC gave NL a short outline of that disclosure.
NL was a close friend of the complainant. She was in Indonesia on 24 November 2018.
NL’s evidence was that she had a telephone conversation with the complainant on 24 November 2018 in which the complainant said words to the effect that she was in a taxi travelling from Civic with a workmate, that he was drunk and hurt, that he had been in a fight and that she felt pressured to help him. NL asked the complainant if she intended to “sleep with” the man. The complainant replied that she did not.
NL returned from Indonesia in late November or early December. She said that she caught up with the complainant a few days or up to a week after she returned and observed “a lot of discolouration” around the complainant’s face which the complainant had concealed with “really bad make-up”. NL said that the complainant seemed “a bit off”. The complainant indicated to NL that something had occurred but that she was not comfortable talking about it.
NL next saw the complainant at the apartment about two weeks after she returned from Indonesia. On that occasion, the complainant gave NL an account of what had occurred. NL’s evidence of that account was summarised by the trial judge as follows:
84.The complainant told NL what had happened. She said that the accused had been in a fight and she had felt pressured to help him. He had travelled in a taxi with her to her apartment and she had hoped that he would keep going. However, he had come up to the apartment. She had offered to call a taxi from the apartment and had attempted to persuade him to leave. However, he had ‘tried to sleep with her’. She had said ‘no’. He had hit and slapped her (i.e. there was more than one strike). She had had tears and had been ‘verbal’ (‘crying … and screaming out’). When she had said ‘no’ he had not listened. The accused had ‘finished’, got up straight away, and said: ‘I didn’t know you were so kinky’. The complainant had called a taxi or Uber, accompanied him downstairs and, when the taxi or Uber failed to arrive, she had secured another taxi.
85. NL said that the complainant was ‘quite distressed’ when recounting these events.
86.The complainant showed NL photographs of the facial area where she had been struck and the injury in the photographs coincided with NL’s recollection of the area to which ‘bad make-up’ had been applied. The complainant said that she had suffered injuries other than facial injuries but did not elaborate.
Evidence of UD
UD gave evidence that he received a text message from the appellant at 7.45 am on 24 November 2018 reading:
You can’t say anything.
UD telephoned the appellant to ask about the message. The appellant told him that he had gone home with the complainant on the previous night and that he “couldn’t get it up”. UD said that the appellant seemed embarrassed, but was not drunk or angry.
There then followed two text message exchanges, the first of which (commencing at 9.05 am) was as follows:
[Appellant]: Farrrk Hahahah why did I do it
UD:Cause you have a dick. I prolly woulda fucked her too. But nah thats so gross bro what were you thinking.
[Appellant]: Hahahahaha booooo … Oh just message her she’ll probably be down …
UD: when did you get home
[Appellant]: Fark like 4 or something
UD: Can’t believe she called you a cab
[Appellant]: Bro outrages … like my performance
UD: Prolly good it was her that it didn’t work for …
[Appellant]: Fark bro no one can know hahah
UD: Can’t wait to tell everyone. Just [two friends] I reckon.
[Appellant]: Don’t you dare hahahahahahahahahahaha
The second exchange (commencing at 9.23 pm) was as follows:
UD: Round two with [the complainant] last night ?
Accused: Hey let’s never speak on that shit again. Hahahahaha Fark!!
UD: Oh fuck did you?!!?
Accused: But nah no way … But why haven’t I deleted her number
UD:Ahahahahahaha she prolly wouldn’t give you another go after your perform anyways
Accused: Harrrrrrdout HAHA meh
The appellant’s record of interview
As has been mentioned, the appellant participated in an interview with the police on 11 March 2019. The manner in which the trial judge summarised the content of the interview is not challenged. It is convenient to extract that summary in full:
91.When approached by police on 10 March 2019, the accused agreed to an interview. The interview was conducted on 11 March 2019.
92. The accused said that he was 24 years old.
93.He said that he had caught up with the complainant inside Kokomo’s Nightclub and they had grabbed a drink (a shot). He had been out with friends but could not recall whom he was with prior to meeting the complainant; ‘it was just a normal night out’. Prior to going to the city, he would have been drinking. He had not witnessed a fight that night.
94.At one point, he and the complainant had been talking at the front of Kokomo’s Nightclub when a ‘random guy’ had commented that the complainant was ‘pretty’, he had pretended that ‘she was my missus’, she had ‘played along’ and they had kissed (just a peck).
95.They talked at the front of Kokomo’s Nightclub. They then went to Playground and were dancing, ‘kissing and whatnot’. The complainant responded to his kissing and they were ‘pretty close’ when they were dancing. The complainant ‘looked normal’ in the sense that she was not drunk and he ‘probably looked … more drunk than she did’.
96. The accused had no recollection of going to Mooseheads Bar after Playground.
97.After Playground, the next thing that he remembered was going to a taxi rank, where he and the complainant agreed that they should go to her place as he lived with his parents and she lived alone. He thought he would ‘just see what happens when we get back’. Before arriving at the complainant’s residence, the accused had not thought about how he would get home and had thought that he would probably get a taxi. He had little recall of the taxi ride to Belconnen.
98.When they arrived at the complainant’s address, she indicated that he should come up to her apartment. He did not think that he would have asked for a glass of water or to use the toilet.
99.When he entered the apartment, he saw her cat and she picked it up. He was ‘not big on animals’ and dogs and cats ‘freak[ed] [him] out’. The complainant’s apartment was messy. The complainant folded out a sofa couch into a bed. She told him to have a seat. He removed his shoes and lay back on the sofa bed. He was tired and ‘wasn’t… completely legless at that point’; he could still walk around and was still coherent.
100.The complainant went to another room and changed into a ‘onesie’ (or pyjamas). When she returned, he was lying on his back. The accused said that the complainant had not attempted to call a taxi or Uber at that stage.
101.The complainant initiated sexual interaction. She sat on top of him with her legs straddling him. They were kissing. She performed oral sex on him. He ‘wasn’t really … that erect’. At some point, she removed her onesie. They had penile/ vaginal intercourse although he was not fully erect. She was on top of him at one stage and, at another stage, he was behind her. He did not ejaculate. She did not say ‘no’, scream out or display any distress. She was ‘making … sexual noises … moaning’ and directing him to ‘fuck’ her. The sexual intercourse was consensual. He thinks that he stopped the intercourse because he was unable to ejaculate.
102.The accused did not recall who had removed his pants. He did not hit or strike the complainant and did not digitally penetrate her. He denied that the intercourse stopped when the cat jumped onto the sofa bed.
103.After the intercourse stopped, they dressed and the complainant suggested that he find his way home. He usually slept at home on a Saturday night. The complainant accompanied him in the elevator to wait for a taxi in the street. She kissed him on the cheek, they hugged, and he said ‘see you later’ and left in the taxi. He could not recall who had ordered the taxi. At that point, there was nothing unusual about the complainant’s face.
104.The accused said that he had told UD about the incident, including the fact that he had not become erect. He had told UD that he had been with someone from work.
105.Police asked the accused why he had very limited recall of the details of the night, other than the events in the apartment and he responded that it is easier to recall a sexual interaction than general events of a night out.
106.When interviewed by the police, the accused suggested that the police should try to obtain CCTV footage of the street area where he had entered the taxi in order to confirm the circumstances in which the couple parted.
107.During the interview, the accused agreed to show police the text message exchange with UD, conceding that it was ‘pretty gross’.
Reasons of the trial judge
In accordance with s 68C(3) of the Supreme Court Act, the trial judge set out the warnings, directions or comments that would have been given had the trial been conducted before a jury. There is no challenge to the terms in which the directions were expressed.
The trial judge made the following observation of the manner in which the complainant gave evidence:
112.In the evidence-in-chief interview, the complainant presented as a very credible witness. She appeared to be trying to recall and ‘relive’ events, particularly when describing the positions of herself and the accused as the events unfolded in her apartment. She seemed to be appropriately embarrassed when discussing intimate acts. Consistent with her age of 18 years, she impressed as somewhat naïve. Through the evidence-in-chief interview, she comforted herself by stroking her cat. The complainant’s account to police was lengthy, rambling, and disordered, but nevertheless internally consistent.
113.In cross-examination, the complainant’s answers were clear and responsive and she did not appear to be defensive. She made concessions against interest. For example, while she said that she did not believe that she had kissed or hugged the accused when he departed in the taxi, she accepted the possibility. She was forthcoming about the fact that she had engaged in relatively intimate conduct including kissing for a prolonged period while she and the accused were at clubs in Civic.
The trial judge said that the photographs corroborated the complainant’s evidence that she had been hit. Her Honour concluded that the timing of the photographs was consistent with the injury to the complainant’s face being the result of a blow that occurred when the appellant was in the complainant’s apartment.
The trial judge said that the photographs provided “corroboration of an important part of the complainant’s account” and that she had no doubt that while present in the complainant’s apartment, the appellant had struck the complainant’s cheek near her left eye, causing the area to become bruised and swollen “as depicted in the photographs”.
The trial judge said that the fact that the complainant had taken photographs of her left shoulder at the same time was consistent with a concern on the complainant’s part that her shoulder might be injured, which accorded with her evidence that the appellant had pinned her down.
The trial judge said that the complainant telling NL that she felt under pressure to help the appellant, together with her changing into a “onesie” suggested that the complainant was not interested in sexual interaction, which stood in contrast to the appellant’s version that the complainant had initiated sexual interaction soon after they entered the apartment. The trial judge said that the complainant’s subsequent concern about the possibility that she had contracted a sexually transmitted disease was consistent with her unwillingness to engage in sex at the time. The “complaint evidence” of DC and NL also provided some evidence of the facts asserted, in addition to supporting the complainant’s credibility (at [122]).
The trial judge held that the conduct of the complainant in the days and weeks following the incident and the timing and manner in which her prior disclosures occurred were consistent with “what would be expected of an 18-year-old complainant of ‘date rape’”. The trial judge continued:
118.[O]n the night of 23/24 November, up to the point when the complainant and the accused arrived at Belconnen, the complainant had felt uncomfortable but had failed to appreciate the extent to which the accused’s conduct raised ‘red flags’. She explained that, when the accused had pressed her for sex, she had felt that she may have fed false expectations and needed to clearly vocalise her objection.
119.The shock of the incident and sense that she may have been partly responsible would have informed the way in which she responded to the incident. After the incident, the complainant was angry; hence the superimposition of the comment ‘Thanks dickhead’ on the photograph of her face that the complainant took on 25 November, which the complainant described as a means of coping. On 30 November, the complainant communicated to her friend OT that the accused was a ‘creep’ and ‘asshole’. Within what was probably a matter of days thereafter, she made her first complaint to DC. She was uncomfortable raising the sexual assault and DC had to question her further to extract the disclosure that she had not only been hit but also ‘raped’. Shortly thereafter, prompted by DC, she made a disclosure to her long-standing and very close friend, NL. On 27 December 2018, the complainant declined a party invitation because the accused would be in attendance and ‘it’s complicated’.
The trial judge then considered 13 matters that were said by the appellant to bear upon the assessment of the complainant’s credibility (at [123]). Her Honour dealt briefly with each of them, concluding that they did not cause her to doubt the complainant’s account of critical events, neither individually nor in combination. Some of those matters are the subject of submissions on this appeal. They will be dealt with later in these reasons.
The trial judge concluded (at [125]) that there was no reasonable possibility that the appellant’s version of events was true. Her Honour reasoned to that conclusion in the following terms:
126.The accused’s account of events on the night in question was extremely vague, except in relation to events in the apartment, which he recounted in considerable detail. I accept that the events in the apartment (whatever they were) were more likely to have made an impression upon the accused, but I do not accept that the degree of difference in recall was a reasonable degree of difference. He seemed to take more time to answer the more difficult questions asked by police and to obfuscate, for example, he was unable to give an estimate of the time that the oral sex lasted and how and when she removed her onesie. At points in the interview, he made facial expressions that seemed to be exaggerated.
127.In several respects, the accused’s account is problematic. According to the accused, the complainant initiated the sexual interaction by straddling his body and performing oral sex on him, persisting despite his partial erection; it seems far more likely that a 24-year-old man would have been the initiator rather than an 18-year-old girl and that an 18-year-old girl would not persist in an exercise that was not yielding results. His statement that, in catching the taxi to Belconnen he had had no expectations and was intending to ‘just see what happens when we get back’, was disingenuous; in travelling in the opposite direction to his home in Queanbeyan he must have been hoping for a sexual encounter. Having spent a long night with the complainant, immediately after the sexual intercourse, he dressed and left. He said that his decision to leave was partly because he usually slept at his own house on a Saturday night, but this was a Friday night/Saturday morning. Despite being with the complainant for many hours on the night of 23/24 November, he recounted no event that would explain the swelling and bruising to her face that was apparent within 20 minutes of his departure and, indeed, he stated that the appearance of her face was ‘normal’ at that time.
128.I consider it to be curious that, about four hours after the events, the accused decided to unburden himself to UD about his erectile dysfunction and the impropriety of a sexual encounter with a former workmate, especially as, at the same time, the accused was adamant that no one else should know about it. Perhaps the exchange was a bizarre form of comedic bravado, or perhaps it was an attempt to convey that, despite an attempted sexual intercourse, nothing much had happened (arguably, consistent with the accused’s repeated statements to police that he had not ejaculated). Ultimately, I have attached no weight to this curiosity.
129.In rejecting the accused’s version of events, I have taken his good character into account. Unfortunately, many persons of prior good character do commit offences and do lie to the police when confronted with serious allegations. It is not uncommon that persons of prior good character sexually assault persons who are members of their family, friends, or otherwise previously known to them. I accept UD’s description of the accused as a shy and introverted person; that is the impression that he gave in the police interview. However, on the accused’s own account, on the night in question he was well affected by alcohol and alcohol can provoke otherwise uncharacteristic behaviour.
The trial judge concluded that the complainant’s evidence was reliable and corroborated by the complaint evidence and the photographs, and that the Crown’s case on the third count was proven beyond reasonable doubt.
Ground 1
Ground 1 alleges that the verdict is unreasonable and cannot be supported having regard to the evidence.
The function of this Court in determining this ground is that stated by the High Court in in Pell v The Queen [2020] HCA 12; 268 CLR 123 at [39] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ):
The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.
(Footnote omitted).
To similar effect, in Fennell v The Queen [2019] HCA 37; 93 ALJR 1219, Kiefel CJ, Keane, Nettle, Gordon and Edelman JJ said at [81]:
Where a court of criminal appeal is called upon to decide whether it considers that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty of the offence charged, the court must not disregard or discount either that the jury is the body entrusted with primary responsibility of determining whether the prosecution has established the accused’s guilt or that the jury has had the benefit of having seen and heard the witnesses. At the same time, however, the court may take into account the realities of human experience, including the fallibility and plasticity of memory especially as time passes, the possibility of contamination of recollection, and the influence of internal biases on memory. The court can also take into account the well-known scientific research that has revealed the difficulties and inaccuracies involved in assessing credibility and reliability. …
(Footnotes omitted).
Section 68C of the Supreme Court Act provides that a judge who tries a criminal proceeding without a jury may make any finding that could have been made by a jury as to the guilt of the accused and any such finding has, for all purposes, the same effect as a verdict of a jury. An equivalent provision was considered by the High Court in Filippou v The Queen [2015] HCA 29; 256 CLR 47 (Filippou). The High Court said that the judge’s “finding” is to be understood as referring to the ultimate finding of guilt or otherwise, and not to the intermediary findings of fact leading to the verdict: at [6], (French CJ, Bell, Keane and Nettle JJ) and [80] (Gageler J). As the majority said (at [12]), the finding is not be disturbed:
[u]nless it appears that there is no or insufficient evidence to support the finding, or the evidence is all the one way, or the finding is otherwise unreasonable, or unless there has been a misdirection leading to a miscarriage of justice. ... It is, however, to be borne steadily in mind that, as with a jury’s verdict, so also with the judgment and verdict of a judge alone, in most cases a doubt experienced by an appellate court will be a doubt which the judge ought to have experienced. To adopt and adapt the language of M v The Queen:
‘It is only where a [judge’s] advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred … If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the [judge], there is a significant possibility that an innocent person has been convicted, then the court is bound to act and set aside the verdict based on that evidence.’
(Footnotes omitted).
See also Gageler J at [82] – [83].
It is otherwise open to the Court to adopt intermediary findings of the trial judge that are not the subject of challenge: Fillippou at [83].
Submissions in support of the first ground of appeal broadly encompassed four topics: unfairness occasioned by delay, the role of the photographic evidence, the assessment of the complainant’s credibility, and the rejection of the appellant’s account.
Alleged unfairness occasioned by delay
The complainant reported the events to police three and a half months after they occurred.
It was submitted that the delay in reporting had the result that the CCTV footage that might have supported the appellant’s version of events was no longer available. The footage is that which might have been taken from the nightclubs in Civic and from the strata company responsible for the complainant’s apartment building. It was submitted that the CCTV footage might, at the very least, have contradicted the complainant’s account that the appellant had tried to pull her away from her conversation with OT whilst on the dancefloor at Mooseheads and that the footage might otherwise be relevant to the assessment of the complainant’s credibility.
The trial judge rejected a submission that her Honour should direct herself in accordance with s 165B of the Evidence Act 2011 (ACT) (Evidence Act). It provides:
165B Delay in Prosecution
…
(2)If the court, on application by the defendant, is satisfied that the defendant has suffered a significant forensic disadvantage because of the consequences of delay, the court must tell the jury about the nature of that disadvantage and the need to take that disadvantage into account when considering the evidence.
…
(6) For this section:
(a) delay includes delay between the alleged offence and its being reported; and
(b)significant forensic disadvantage is not to be regarded as being established by the mere existence of delay.
The trial judge said that any forensic disadvantage suffered by the loss of any CCTV footage was “trivial, if it existed at all”. Her Honour continued (at [111]):
As to what occurred inside and outside of Kokomo’s Nightclub, the complainant’s version of events was similar to that of the accused; she agreed that there had been significant intimacy between them at that venue. As to what occurred inside Mooseheads Bar, it is most unlikely that film would have provided evidence that, from the accused’s perspective, was more helpful than the evidence of the complainant’s friend OT, who was present and, on 30 November 2018, stated that she had not observed grabbing or controlling behaviour. As to whether there was a hug and kiss at the taxi rank, the complainant did not completely reject that possibility. Further, all the contentious events occurred within the apartment, not in the areas that may have been captured by CCTV cameras.
There is no error in that assessment. The trial judge was correct to identify the events that might have been depicted in the footage as either non-contentious or otherwise going to peripheral issues.
Photographic evidence
It was submitted that the inference that the complainant suffered an injury to her face should not be drawn from the photographs because only one side of her face was depicted in them. It was submitted that the photographs may well depict the ordinary appearance of the left side of the complainant’s face. It was further submitted that it is not possible to tell from the photographs whether “any colouration is due to make-up or injury”. It was submitted that these limitations in the photographs were not considered by the trial judge when her Honour placed great weight on them as corroborative evidence of the complainant’s version of events.
There is no proper basis to assert that it was not open to the trial judge to have no doubt that the injury occurred. The finding is plainly supported by the photographs, at least two of which depict an area of swelling of about the same circumference as a golf ball. In addition, the trial judge had the advantage of seeing the complainant cross-examined on the topic of the injury and the provenance of the photographs. Under cross-examination, the complainant accepted that she had not taken a photograph depicting both sides of her face. It was put to her in cross-examination that she had photographed the injured side from angles and in lighting that “exacerbat[ed] any marking that was on your face” in the sense of “making it look larger or worse”. The appellant’s trial Counsel did not suggest that the marks depicted in the photographs were make-up applied to the complainant’s face so as to falsely give the appearance of an injury that did not exist in fact, and no such allegation was put to the complainant. Trial Counsel submitted that the photographs should be “viewed with a level of caution, in terms of assessing how serious the injuries are”. On any reasonable view, the extent of swelling emerging on the complainant’s cheek was sufficient to prove that she had been struck in the face with some force.
In closing submissions at trial, Counsel for the appellant said that he did not make any submission that an actual injury did not exist. “Clearly,” trial Counsel said, “there is something to be seen in the photos”. Trial Counsel said “the fact there is something there is not disputed”. That is consistent with the statements of the appellant himself in his police interview when shown the photographs. When asked what they depicted he said “it’s a bruised face”, “a female cryin’, bruised face” and “it’s extremely swollen”.
The trial judge was entitled to place significant weight on the photographs and to consider them to be corroborative of the complainant’s evidence that the appellant had struck her on the left cheekbone. The trial judge had the advantage of seeing and hearing the complainant give evidence under cross-examination as to the manner in which the photographs were taken but it was not necessary to resolve the issues at trial by reference to the complainant’s demeanour. It will be necessary to return to these issues when considering submissions about the appellant’s version of events.
Matters affecting the complainant’s credibility
The trial judge made observations about the manner in which the complainant presented as a witness in the passage extracted at [27] above. In that passage, the trial judge made reference to the complainant comforting herself during her evidence-in-chief interview by stroking her cat. The appellant submits that the use of a support animal in the course of giving evidence or being interviewed does not and should not assist a tribunal of fact one way or another when assessing the credibility of the witness. I accept that submission. In the particular circumstances of the present case one might question the appropriateness of the use of the cat in the complainant’s recorded interview, given that the appellant’s fear of cats went to live issues in the proceedings. However, the mere use of the animal and the observation of that use does not suggest that the trial judge attributed any positive characteristic to the complainant by reason of her use of the animal per se.
The appellant otherwise points to 11 aspects of the Crown case that were said to constitute inconsistencies or discrepancies. It is necessary to consider the submissions both individually and cumulatively.
The outward appearance of injury
The appellant also places emphasis on an inconsistency in the Crown case concerning the time it took for the injury to no longer be visible. If there be an inconsistency on that topic, it is minor and inconsequential. As the trial judge observed, it would go to show that the complainant understated the time it took for the injury to disappear. The complainant did not profess to have an exact memory of timeframes, and nor did the witness DC. DC said that it may have been about a week after 24 November 2018 when he noticed a mark on the complainant’s face. That is not a significant discrepancy from the complainant’s account that the injury subsided after a few days. NL was clear in her evidence that she had noticed the injury, notwithstanding that it was covered in
make-up.
If there be a discrepancy in that aspect of the evidence it is not of any particular moment in and of itself. It does not amount to an internal inconsistency within the complainant’s own evidence. The complainant was not absolute about the interval between the events and the date on which she made her disclosure to DC, and neither was DC.
The complaint to NL
The complainant gave evidence of the forceful nature of the intercourse in terms that are correctly summarised in the Crown’s written submissions as follows:
The complainant gave evidence that when appellant kept kissing her face, he began to grab her body and hold her. He began to push himself onto the complainant and ended up on top of her. She began pushing back and trying to shove the appellant off her. She told the appellant ‘no, I don’t want this’ and ‘no, stop, I don’t want to have sex, I don’t want you to do this’. The appellant ignored this. The appellant kept grabbing the complainant’s hands and pinning them down as she was attempting to push him away. She continued to express her objection to what was occurring. The appellant got angry and said ‘I’m hard, I want this, I’m here’. The appellant attempted to move the complainant’s legs apart and she attempted to keep her knees together. The complainant continued to resist and to express objection and the appellant used his hand to cover her mouth which caused her difficulty in breathing, whilst also pinning her arms. The complainant began to lose strength in resisting the appellant. She could not say exactly how the appellant did each move as it was a ‘blur in a sense’ but he was successful in moving her legs apart. The appellant was able to ‘kick-off’ the complainant’s pants which fell down towards her feet. The complainant continued to resist the appellant by attempting to ‘wiggle’ and ‘push’. At one point the complainant pushed the appellant’s windpipe and hit him in the face. The complainant closed her eyes ‘for a second’ before the appellant hit her in the cheekbone.
The complainant told her friend NL about the events in a conversation a week or two following the events. NL said that the complainant had told her that she was hit and slapped by the appellant and that “there were multiple forms” of hitting.
The appellant submits that the description of slapping or multiple forms of hitting was inconsistent with the complainant’s testimony. It followed, the appellant submitted, that the account to NL was either a lie or a significant exaggeration, and that either way the discrepancy ought to have reflected adversely on the complainant’s credit.
Given the summary of the complainant’s account of events, any statement to NL that the attack involved force in multiple forms is not inconsistent. As to whether she told NL that she had been struck in the face more than once, the complainant was cross-examined on that topic, in the following exchange:
When you spoke to NL, did you tell her that he was both hitting and slapping you?
--- I don’t believe I ever mentioned slapping, but I did mention the hit.
Did you tell NL that he’d had two separate forms of striking on you, even if it wasn’t the word ‘slap’?
--- Not unless it was in reference to the pushing down, the grabbing or anything of that, but not in a striking sense, no.
The trial judge recognised the existence of a discrepancy between the evidence of NL and the complainant as to that aspect of their conversation. The trial judge said that the inconsistency did not show exaggeration on the complainant’s part. That is a conclusion that was open to the trial judge to make, particularly given that the complainant had remained consistent in her testimony that she had only been struck once in the face, but had otherwise been subjected to multiple forms of force.
The period before the events in the apartment
The appellant made a number of submissions about the complainant’s evidence leading up to the events in the apartment. They are extracted from the written submissions below.
First, it was submitted:
The complainant gave evidence that when she greeted OT and her boyfriend on the dance floor in Mooseheads, the appellant tried to pull her away. This evidence is simply not corroborated in any way by OT. OT did not see this, when according to the complainant’s evidence it would have been readily apparent.
It is not correct to say that the pulling away of the complainant would have been readily apparent to OT. That was not the effect of the complainant’s evidence. The evidence of possessive conduct on the appellant’s part was not confined to the short period in which the complainant attempted to have a conversation with OT on the Mooseheads dance floor. When cross-examined on the topic, the complainant said that the dance floor was “very crowded, everyone shoulder to shoulder”. She described the appellant’s grabbing as “it wasn’t … yanking there or anything. It was more a grabbing, like, grab your arm, pull to dance type concept”. Considered in context, the absence of corroboration from OT of that particular incident is of little moment. As discussed below, the appellant himself had no recollection of attending Mooseheads and so could advance no evidence to contradict the complainant’s account.
Second, it was submitted:
The message sent by the complainant to OT on 30 November 2018 that she was ‘super chilled’ about the appellant on the night when they were in Civic is not consistent with her evidence.
(Emphasis in original).
The text message exchange between the complainant and OT was as follows:
Complainant: “I handed him but he was an asshole”
…
OT: “Why wouldn’t he let you talk to people wth”
…
Complainant: “He didn’t want me to do Exactly what I would have done”
“I was super chill about it/him all night it was just annoying as fuck”
OT: “What would you have done?
Complainant: “Asked for help to get him away from me”
We do not consider that exchange to involve any departure from the complainant’s evidence, when considered in the context of her evidence as a whole. The complainant explained that she was not particularly close to OT and that she was not ready to disclose to OT all that had happened. The exchange is properly understood as relating to the period in which the appellant and the complainant were out together in Civic. The exchange is consistent with the complainant’s evidence that the appellant was possessive and pressuring at that stage of the evening.
Third, it was submitted:
The complainant told both NL and DC that she shared the taxi and invited the appellant in because he had been in a fight and was hurt. In cross-examination the complainant’s evidence was that the appellant had not been in a fight, and that formed no basis for her to invite him to share a cab or go upstairs with her. It is submitted that this is an example of the complainant giving a false excuse for catching a taxi and inviting the appellant up to her apartment, other than wanting to have sex with him;
The trial judge rejected the same submission. Her Honour said that the allegation of inconsistency suggested “confusion about the role of a fight”. Her Honour said that on the complainant’s account, there was a fight but it had nothing to do with her decision to take a taxi home with the appellant. That does not entirely resolve the question.
The complainant was clear and consistent in her evidence that the appellant had not in fact been involved in a fight. Rather, a group of males with whom the appellant was associated became involved in a fight with some nightclub bouncers, but the appellant was not involved in the altercation.
During the taxi journey on the way to her apartment, the complainant had a conversation with NL in which she made it plain that she had no intention of having intercourse with the appellant.
NL’s evidence of that conversation was to the effect that the complainant had said “something happened with a fight, they were friends, so she was helping him, and felt obliged just because they were friends and she felt pressured”. That evidence does not state in terms that the complainant caught a taxi with the appellant because he had been in a fight, nor that she had invited the appellant into her apartment for that reason.
The complainant in cross-examination said she did not recall whether she had told NL that the appellant had been in a fight and she did not recall saying the appellant was hurt.
DC gave evidence about the conversation with the complainant a week or two after the events. His cross-examination proceeded as follows:
[s]he wanted to go home and then so what happened was – well from what she told me was that she wanted to go home and her friend, or her work friend that she was with was drunk and she was just going to go home and then shout the taxi back to for him to go home as well and then he needed to use the bathroom and then she didn’t really want to go into much detail after that after they went upstairs.
DC then gave an account of the conversation in terms consistent with the complainant’s accounts. At the conclusion of the cross-examination the following exchange occurred:
[D]id she tell you that she had brought the appellant up to her room to see if he was okay because of a fight? --- I think that was one of the elements but from what I’m aware, well from my understanding, is the main one was that he well as the complainant said, he tried to use needing to use the bathroom to get into the room. That was my understanding.
Am I being fair to you in saying there were two aspects that she told you about. The first one was needing to use the bathroom and then there was also to make sure he was okay after being in a fight? --- Yes.
That evidence does introduce a discrepancy. But of itself the discrepancy does not demand a finding that the complainant had been dishonest in her conversation with DC about why she had permitted the appellant into her apartment. The discrepancy is readily explained by DC’s understanding of the import of the conversation.
Fourth, it was submitted:
The complainant’s evidence that she was trying to get away from him during the evening in Civic is inconsistent with her catching a taxi with him.
This submission ignores a significant portion of the complainant’s evidence explaining her decision to take the same taxi with the appellant. The evidence is summarised in the Crown’s written submissions and need not be repeated here. Submissions on the appeal did not engage with that evidence or explain why it could not be accepted by a trier of fact, acting reasonably. In any event the appellant could not recall (and so did not deny) that the complainant had asked him to continue on home in the taxi, nor could he recall (and so did not deny) that he had insisted on going up to the apartment purportedly to use the toilet.
Fifth, it was submitted:
The complainant’s evidence that the appellant was initially not particularly drunk, however he became more intoxicated in the taxi on the way home notwithstanding he was not drinking much when he was with the complainant in … Civic does not make sense.
We do not accept that submission. The complainant’s evidence concerned her observations of the appellant’s outward behaviour. Her evidence was to the effect that he appeared to be more intoxicated that she had previously realised. As the trial judge correctly observed, on the appellant’s own account he was well affected by alcohol, although he was not “legless”. The appellant’s account of the quantity of his drinking (such as it could be recalled) tends to support the complainant’s perceptions.
Incomplete prior complaints
It was submitted that when recounting to NL and to DC what had occurred, the complainant had not mentioned that the intercourse had ceased when the complainant’s cat jumped on to the sofa bed. The trial judge had regard to that omission in the earlier complaints. Her Honour said that “with the benefit of hindsight, the assertion that the cat interrupted the sexual interaction may appear novel and striking, but that may not have been the complainant’s view at the time” (at [124(h)]). It was open to the trial judge to reason in that way. Whilst the omission was relevant, it fell to be considered in the context of the Crown case as a whole, including the extent to which the prior complaints broadly supported the complainant’s evidence. The complainant did not make any prior inconsistent statement as to the circumstances in which the intercourse ceased. The omission is relevant but hardly significant.
The “kinky” comment
The complainant was not consistent in her evidence as to the point in time that the appellant said the words “I didn’t know you were so kinky”. She told NL that the words were said in the apartment soon after the intercourse ceased. Her evidence at trial was that the words were said when she and the appellant were outside of the apartment waiting for a taxi. The appellant makes the following submission in respect of the timing of the comment:
The complainant told NL that the appellant had said ‘I didn’t know you were so kinky’ immediately after the sexual encounter. This comment would make sense on the appellant’s version. It makes no sense on the complainant’s version as on her version she did not participate in any sexual activity except to try to fight the appellant off.
We have some difficulty understanding the import of that submission. The complainant’s version was that she had been subjected to forceful and non-consensual sexual activity, during which her face had been covered, she had been pinned down and struck in the face. The comment attributed to the appellant (whether immediately after intercourse or sometime later) is not nonsensical. If spoken, the words support the complainant’s version that there was something about the intercourse between her and the appellant that involved the infliction of violence. The words make sense in that they are suggestive of a disingenuous attempt on the appellant’s part to say that the intercourse was consensual or to normalise what had just occurred.
We do not otherwise comprehend how uttering the words could lend support to the appellant’s version of events on any reasonable view. The account given in his police interview (including an inability to achieve or maintain an erection) does not provide a factual context that would give the phrase any obvious meaning. On his version, the intercourse was “fine for both”, and involved no slapping or behaviour that might be fairly described as “kinky”.
The complainant’s conduct after intercourse ceased
It was submitted that the recording of the call in which the complainant booked a taxi for the appellant betrayed no trauma and was “inconsistent with the complainant just having been violently sexually assaulted”.
As the trial judge observed, the complainant’s voice was not hysterical or wavering, but it was “very quiet and flat”. The respondent’s submissions on this topic ignored the context in which the intercourse had occurred and the complainant’s evidence about her thoughts and feelings afterward. That evidence is correctly summarised in the Crown’s written submissions as follows:
The complainant said in her evidence that following the appellant pulling his pants up after the sexual assault, she called a taxi and told the appellant that the taxi was downstairs in an attempt to ‘get rid of him’. The complainant said she was scared of what had just happened but did not want to ‘make a scene’ and was ‘trying to play things as calmly …’ as she could.
The appellant’s submission proceeds from a stereotypical assumption as to how an 18 year old woman should or should not be expected to behave after a sexual assault whilst the perpetrator remained present in her home.
The delay in reporting to police
The appellant submits, without elaboration, that the complainant did not make a report to the police until three and a half months had lapsed.
It is unclear what point is sought to be made by reference to the delay, in addition to the submission about significant forensic disadvantage (which has been rejected). The complainant was not asked any question concerning the reason for the delay, such as it was. The delay does not necessarily indicate that the allegation made to the police was false: EMP Act, s 80B.
The submissions considered together
This Court must make an independent assessment of the sufficiency and quality of the evidence, paying due regard to the advantage of the trial judge in hearing and seeing the complainant and the other witnesses give their evidence: SKA v The Queen [2011] HCA 13; 243 CLR 400 at [14]. To the extent that there existed discrepancies or inconsistencies in the Crown case, the trial judge properly considered and dealt with them. The demonstrated discrepancies are few. They are not of such a number or nature so as to preclude an assessment of the complainant as a reliable witness. Of themselves, the various matters said to have affected the complainant’s credibility do not support a finding that the trial judge must or should have had a reasonable doubt as to the appellant’s guilt.
In our assessment, the points made about the assessment of the complainant’s credit are either weak or wholly unmeritorious. They are not made stronger when considered in the company of each other.
Rejection of the appellant’s account
The appellant did not give or call evidence. Evidence of his version of events took the form of a recording of a police interview adduced as part of the Crown’s case. It contained statements supporting the Crown’s case (at least as to whether penile/vaginal intercourse occurred) as well as exculpatory statements (as to consent). It may be regarded as a mixed statement, presumably admitted as an exception to the hearsay rule under s 81 of the Evidence Act.
Also in evidence were text messages exchanged between the appellant and UD a few hours after the appellant left the complainant’s apartment. The fact that the appellant authored and sent the messages is not in issue. The messages constitute out of court statements authored by the appellant presumably tendered on the basis that the Crown considered them to be in the nature of mixed statements under s 81 of the Evidence Act, or otherwise to give context to the record of interview.
Before assessing the appellant’s account, the trial judge directed herself in accordance with the principles in Liberato v The Queen (1985) 159 CLR 507 at 515 (Liberato), appropriately modified in accordance with the principles in De Silva v The Queen [2019] HCA 48; 268 CLR 57 at [12] (De Silva). In De Silva, the majority confirmed that a Liberato direction was not required as a matter of law: at [4] (Kiefel CJ, Bell, Gageler and Gordon JJ). The majority also confirmed that it may be appropriate to give a Liberato direction in a case where the evidence of the accused’s account is not in the form of evidence on the accused’s oath, but took the form of exculpatory statements made in a police interview adduced (as here) as part of the Crown’s case. The majority said that it was preferable that the direction be framed along the following lines, with the passages in parenthesis directed to cases in which the accused does not give evidence (at [12]):
[(i)] if you believe the accused’s evidence (if you believe the accused’s account in his or her interview with the police) you must acquit; (ii) if you do not accept that evidence (account) but you consider that it might be true, you must acquit; and (iii) if you do not believe the accused’s evidence (if you do not believe the accused’ account in his or her interview with the police) you should put that evidence (account) to one side. The question will remain: has the prosecution, on the basis of evidence that you do accept, proved the guilt of the accused beyond reasonable doubt?
The direction should be given if the trial judge “perceives that there is a real risk that the jury will reason that the accused’s answers in his or her record of interview can only give rise to a reasonable doubt if they believe them, or that a preference for the evidence of the complainant over the accused’s account in a record of interview suffices to establish guilt” (at [11]). The majority went on to reject an argument that a miscarriage of justice had occurred in a jury trial in which no direction in Liberato terms had been given.
As the outcome in De Silva demonstrates, the Liberato direction is a means by which directions as to the onus and standard of proof may be reinforced in cases where there is a real risk that the onus and standard of proof may be lost sight of. That risk is more likely to arise in jury cases where the accused gives evidence on oath: De Silva at [11]. In such cases, a risk may arise that the jury will misunderstand its task as one requiring a choice to be made between conflicting accounts. In De Silva itself, that risk did not in fact arise because the summing up as a whole had conveyed that the jury could not convict if the accused’s exculpatory answers left them with a reasonable doubt about his guilt.
In this case, there is no challenge to the manner in which the trial judge directed herself. It is plain that the trial judge did not misunderstand her Honour’s task as involving a choice between different prosecution and defence accounts: Liberato at 519 – 520; De Silva at [9]. It cannot be suggested that the trial judge proceeded on the erroneous basis that a preference for the evidence of the complainant precluded a verdict of not guilty. We do not understand a submission to the contrary to have been advanced on this appeal.
The gravamen of the appellant’s complaint is that the trial judge ought to have either believed the appellant, or concluded that his account might be true, in either case necessitating his acquittal. There are four components to that argument.
First, it was submitted that the appellant’s version of events was not inherently implausible.
Second, it was submitted that the appellant’s asserted inability to recall details of the events occurring at the nightclubs but ability to recall details of the events in the apartment was not incongruous. The explanation for the difference, given by the appellant himself, was that he often visited Civic nightclubs with his friends and that the earlier part of the evening was no different than other such occasions.
Third, it was submitted that the appellant’s account was corroborated by the evidence of UD and the text messages passing between them some four to five hours after the critical events. The exchanges should not have been disregarded as a “curiosity”, nor could the evidence be discounted. It was submitted that the corroborative evidence gave rise to a possibility that the appellant’s account was true.
Fourth, it was submitted that the trial judge made two assumptions about sexual behaviour that had no foundation in the evidence. The first was that an 18 year old woman was less likely to be the initiator of sexual activity than a 24 year old man. The second was that an 18 year old woman was unlikely to persist in sexual activity that was not yielding results because of erectile dysfunction. It was submitted that both propositions were entirely speculative and both were central to the rejection of the appellant’s account. It is this aspect of the trial judge’s reasoning that is also said to give rise to a miscarriage of justice forming the subject matter of the second ground of appeal.
The first three points may be considered together.
For the sake of argument, it may be accepted that the appellant’s version of events is “not inherently implausible” when considered in isolation. In other words it is not inherently implausible that a young man and woman previously acquainted with each other might meet at a nightclub, return to the woman’s home and have a clumsy sexual encounter in which the woman is an enthusiastic participant. However, the circumstance that the account was “not inherently implausible” does not answer the question of whether the evidence of the account gave rise to a reasonable doubt as to the appellant’s guilt. The weight to be given to the evidence of the appellant’s version of events was a matter for the trial judge.
As to weight, the principles stated in Liberato and De Silva ought not to be understood as requiring that evidence of the appellant’s version be accepted at face value, nor that it must be accorded the same weight as sworn testimony. As the plurality said in Nguyen v The Queen [2020] HCA 23; 380 ALR 193:
21.It is through the combined operation of s 81(1) and (2) that the exculpatory aspects of a mixed statement may be admissible under the Uniform Evidence Act. Once admitted they are evidence of the truth of what is there stated, subject to questions of weight. There are of course other means by which a record of interview may be admissible but it is not necessary to canvass them.
22.It is to be expected that exculpatory statements made in a record of interview which also contains admissions will usually satisfy the requirements of s 81(2)(a) and (b). In the event that there is some doubt about the connection between an exculpatory statement and an admission, it should be borne in mind that what is to be made of a mixed statement is a matter for the jury, which might attach different degrees of credit to different parts of it. It has been observed that, under the Uniform Evidence Acts, provided relevant evidence is rationally capable of acceptance, questions of credibility and reliability are to be seen as squarely within the province of the jury. …
…
24.Howsoever mixed statements come to be admitted into evidence they are invariably subject to a direction to the jury that they may give less weight to exculpatory assertions than to admissions and that it is for them to decide what weight is to be given to a particular statement. The rationale for the direction is that exculpatory statements are not statements made against interest, are not made on oath and are not subject to cross-examination.
(Emphasis added).
The trial judge rejected the appellant’s account for the reasons extracted at [34] above.
It is plain from the result, that the trial judge gave the evidence of the appellant’s version of events minimal or no weight. Her Honour’s conclusions are based in part on her impressions of the exaggerated manner in which the appellant responded to police questioning. Her Honour’s observations in that regard are not the subject of discrete challenge on this appeal. Those observations were plainly open on the material.
As to her Honour’s comments about the appellant’s varying ability to recall, she accepted that the events in the apartment were more likely to have made an impression on the appellant than the events preceding them. The significant degree of difference in recall nonetheless remained a relevant factor, notwithstanding that the appellant had given an explanation for the difference per se. The appellant’s submissions on this topic ignore the nuances in the reasoning of the trial judge at [126].
The significant variation in the ability to recall is demonstrated by the fact that the appellant said that he had no recollection of going to Mooseheads nightclub at all, no recollection of whether he had had anything to drink before going to Civic, no recollection of the taxi ride to the apartment, no recollection of what the complainant was doing during the taxi ride (the fact of her telephone conversation with NL being independently verified), no recollection of whether he had acted possessively toward the complainant and no recollection of a fight having occurred at Kokomos (the fact of which was also verified independently). He said that he could not recall whether the complainant had asked him to continue home in the taxi, nor as to whether he had insisted upon coming up to her apartment for a drink or to use the toilet. He could not recall the complainant calling a taxi after intercourse.
It was open to the trial judge to consider the exactitude of the some of the appellant’s recalled events to be highly questionable when considered in the context of the evidence as a whole. With respect, we share her Honour’s view.
Importantly, the trial judge observed that the appellant’s account did not explain the injury to the complainant’s face. In that regard, her Honour may be fairly understood as saying that his version of events did not reasonably preclude the inference of injury that clearly arose from the photographic evidence. As has already been observed, the existence of the injury was not the subject of any real contest at the trial. The point that the appellant sought to make at the trial was that the injury was not as serious as it might have appeared in the photographs. The appellant’s version of events did not cause the trial judge to doubt that the injury had occurred. The trial judge was entitled to have regard to the photographic evidence, when rejecting the appellant’s bare denial that he had struck the complainant. Of itself that was a sufficient basis to reject the remainder of the account insofar as it bore on the question of consent.
The trial judge did not consider the text message exchange between the appellant and UD to have significant corroborative value.
The messages give a crude summary of a sexual encounter in which the appellant was unable to obtain an erection.
The text messages fell to be assessed in the social context of the appellant being quizzed by a male friend about his night with the complainant, a former work colleague. It is in that context that the trial judge described the text messages as a bizarre form of comic bravado “or perhaps it was an attempt to convey that, despite an attempted sexual intercourse, nothing much had happened”.
The appellant complains that the reasoning of the trial judge failed to recognise the corroborative value of the text message evidence and that it was not open to her Honour to dismiss the text messages as a “curiosity”.
Once again, that submission proceeds in part from a misunderstanding of the reasoning of the trial judge. The relevant “curiosity” in the appellant’s version of events arose from the circumstance that the appellant was concerned that nobody should know about the fact of his sexual encounter with the complainant at all (as evidenced by the first message “You can’t say anything”), and yet he voluntarily unburdened himself to UD about his erectile dysfunction.
The text messages may be regarded as “corroborative” in the sense that the version of the evening conveyed to UD was partially consistent with that given to the police, that is, they contained inculpatory statements to the effect that intercourse had occurred. However, it is not correct to characterise the text messages as wholly corroborative. In his account to the police, the appellant described having intercourse with the complainant from at least two positions for some time, during which the complainant was said to have expressed her pleasure. He said that he was not “fully erect”, but did not believe the complainant had noticed. That narrative is not conveyed in the text messages.
In our view, the trial judge was entitled to regard the exchange with UD as being of little forensic consequence, given the context in which they arose and the compelling evidence demonstrating that the complainant suffered an injury to her face.
To the extent that it is submitted that it was not open to the trial judge to find that the appellant should not be “believed” in the sense explained in De Silva, that submission is rejected. On our own assessment of the evidence discussed thus far, we would arrive at the same conclusion as that reached by the trial judge. That conclusion does not depend upon acceptance of the favourable impression the trial judge formed of the complainant’s demeanour.
Assumptions concerning likely sexual behaviour
This final topic concerns the comments made by the trial judge about the likely behaviour of an 18 year old woman in the context of a sexual encounter with a 24 year old man. It is convenient to extract them again here:
In several respects, the accused’s account is problematic. According to the accused, the complainant initiated the sexual interaction by straddling his body and performing oral sex on him, persisting despite his partial erection; it seems far more likely that a 24-year-old man would have been the initiator rather than an 18-year-old girl and that an 18-year-old girl would not persist in an exercise that was not yielding results.
We accept that that her Honour’s comments embody two assumptions about how an
18 year old woman is likely to behave.At trial, there was no application for leave to adduce evidence of the complainant’s sexual experience, although it emerged in evidence that she had been in a prior relationship for two years with the witness DC. There was otherwise no evidence in the proceedings bearing on the question of how 18 year old women might generally be expected to behave in their sexual relations with men of any age.
For the Crown it was submitted that the trial judge made no finding of fact based on the two assumptions, but rather used her Honour’s common sense and knowledge of human affairs to assess the veracity of the appellant’s version of events. It was permissible, the Crown submitted, for the trial judge to evaluate the appellant’s account in the exercise of “the ordinary powers of human reason in light of human experience”: G v H (1994) 181 CLR 387 at 390 (Brennan and McHugh JJ) (G v H). Counsel for the Crown submitted that the trial judge had done nothing more than apply her Honour’s common sense and knowledge of ordinary human affairs to test the veracity and plausibility of the appellant’s version of events.
We do not wholly accept that aspect of the Crown’s submissions.
The assumptions of the trial judge do not seem to us to arise as a matter of common sense or common knowledge. Whether or not it is more likely that a 24 year old man would initiate sexual relations than an 18 year old woman is a question that does not yield an obvious or universal answer. It is not a matter of ordinary human experience of the kind that might invoke the principles discussed in G v H. The same may be said of the second assumption to the extent that it proceeded from the general proposition that an 18 year old would not persist with a sexual activity that was not yielding results. That assumption does not accommodate the appellant’s statement that his inability to achieve a full erection did not prevent intercourse occurring.
Even if an assumption could confidently be made about the likely behaviour of
18 year old women in their relations with 24 year old men generally, the general proposition could not legitimately inform the questions arising at trial as they related to the particular complainant and the particular accused.Subject to what follows, we accept that the assumptions of the trial judge formed a part of her Honour’s reasoning to the conclusion that the evidence of the appellant’s version of events did not give rise to a reasonable doubt as to his guilt. That discrete aspect of the reasoning process was based on a factual error.
It is necessary to determine the consequences of these conclusions for the resolution of both grounds of appeal, having particular regard to the nature of this Court’s task and the role of the reasons of the trial judge in discharging it.
For the reasons given above, if the appellant’s version of events were properly to be put aside, the verdict entered by the trial judge could not be characterised as unreasonable or unsupported by evidence. It is necessary to consider whether the evidence of the appellant’s version of events ought to have given rise to a reasonable doubt as to his guilt.
The circumstance that the trial was conducted by judge alone does not alter this Court’s task on the appeal: the Court must undertake its own assessment of the evidence. In performing that task, the role of the reasons of the trial judge should not be understated, but nor should they be overstated. As Gageler J said in Filippou at [83], this Court on appeal may be assisted in its task by the reasons of the trial judge in the sense that the Court may adopt uncontentious findings contained in the reasons and focus its attention on those findings that are the subject of genuine challenge. The reasons may also contain express statements as to the trier of fact’s impressions of the witnesses’ demeanour and so indicate particular instances where deference to the advantages of the trial judge may be shown. If the evidence (as independently assessed by this Court) gives rise to a doubt, then the verdict should be set aside unless the doubt is capable of being resolved by the advantages of the trier of fact in seeing and hearing the witnesses.
On this appeal, we do not entertain a doubt, whether of a kind warranting deference to the advantages of the trial judge for its resolution or otherwise.
The erroneous assumptions of the trial judge do not affect our own assessment of the appellant’s version of events. We would arrive at the same conclusions with respect to that evidence as that arrived at by the trial judge, albeit without reference to any assumption about the likely sexual behaviour of 18 year old women in relation to 24 year old men. We do not consider there to be a risk that the assumption affected the assessment the trial judge made of the demeanour of the witnesses in a way that would preclude this Court from upholding the guilty verdict. Expressed another way, the problematic assumptions of the trial judge do not demand the conclusion that the verdict was unreasonable or unsupported by the evidence.
The first ground of appeal is not established.
Ground 2
This ground asserts that the trial judge impermissibly and unfairly introduced evidence into her deliberations that was not before her Honour and upon which no submissions had been made or opportunity to make submissions was provided to the defence, giving rise to a miscarriage of justice.
For the purposes of this ground, the submissions about the erroneous assumption of the trial judge took the form of a complaint that the procedural fairness requirements in
s 144 of the Evidence Act (as it relates to matters of common knowledge) had not been satisfied. Section 144 provides:Matters of common knowledge
(1) Proof is not required about knowledge that is not reasonably open to question and is:
(a)common knowledge in the place in which the proceeding is being held or generally; or
(b)capable of verification by reference to a document the authority of which cannot reasonably be questioned.
(2) The judge may acquire knowledge of that kind in any way the judge thinks fit.
(3)The court (including, if there is a jury, the jury) is to take knowledge of that kind into account.
(4)The judge is to give a party such opportunity to make submissions, and to refer to relevant information, relating to the acquiring or taking into account of knowledge of that kind as is necessary to ensure that the party is not unfairly prejudiced.
(Emphasis added).
For the purposes of s 144(4) it was said that the appellant was deprived of the opportunity to make submissions in respect of the factual assumptions. From there, it was submitted that the error of the trial judge must be characterised as an error of law, so enlivening the principle stated by Fullagar J in Mraz v The Queen (1955) 93 CLR 493 (Mraz) at 514 that:
[e]very accused person is entitled to a trial in which the relevant law is correctly explained to the jury and the rules of procedure and evidence are strictly followed. If there is any failure in any of these respects, and the appellant may thereby have lost a chance which was fairly open to him of being acquitted, there is, in the eye of the law, a miscarriage of justice. Justice has miscarried in such cases, because the appellant has not had what the law says that he shall have, and justice is justice according to law.
We do not consider it appropriate to conceive of the problem through the lens of s 144. The assumptions upon which the trial judge relied did not meet the descriptions in either s 144(1)(a) or (b). The duty in s 144(4) was not enlivened.
The argument that the reasoning of the trial judge was erroneous has nonetheless been decided in the appellant’s favour. The substantive question is whether it follows from acceptance of the point that there has been a miscarriage of justice: Supreme Court Act, s 37O(2)(a)(iii)). In our view, the error of the trial judge did not constitute an error of law: the trial judge proceeded from a factual premise as to the likely behaviour of
18 year old women generally that was not supported by the evidence. We do not consider that to be an error of the kind that would attract the principles stated by Fullagar J in Mraz, and so require that there be a retrial.Howsoever the error is characterised, we have concluded that no miscarriage of justice is demonstrated, for a number of reasons (each of which is sufficient), in accordance with all that we have said above.
It cannot reasonably be supposed that the comment of the trial judge infected any other portion of her deliberation, including her Honour’s assessment of the importance to be placed on the photographic evidence and the conclusion (supported by the appellant’s own submissions at trial) that the complainant in fact suffered an injury to her face.
Properly understood, the difficulty in reconciling the appellant’s version of events against the photographic evidence was regarded by the trial judge as a discrete and sufficient basis to put the appellant’s account aside.
If we are wrong in interpreting the reasons of the trial judge in that way, we do not consider there to be a real possibility of a different outcome if the verdict were to be set aside and the charge retried. That is because on our own review of the evidence as a whole, it cannot be said that a trier of fact, acting reasonably, ought to have entertained a reasonable doubt as to the appellant’s guilt, assuming that assumptions of the kind made by the trial judge were not made. The appellant’s account should be rejected by this Court without resort to the problematic reasoning.
In addition, for the reasons given above, we do not consider there to be any significant disparity or inconsistency in the Crown case that depends for its resolution on the trial judge’s conclusions as to the demeanour of any witness. This Court’s conclusion that the offence was proven beyond reasonable doubt does not depend upon any such impressions.
In all of the circumstances, the appellant has not been deprived of any real possibility of an acquittal on Count 3.
It follows that the second ground of appeal is not established, and that the appeal must be dismissed.
| I certify that the preceding [144] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Justice Burns, Justice Loukas-Karlsson and Justice Charlesworth. Associate: Date: |
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Amendments
12 July 2021 Replace “I” with “We” Paragraph: [66]
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