FN v The Queen

Case [2021] NTCCA 5

CITATION:FN v The Queen [2021] NTCCA 5

PARTIES:FN

v

THE QUEEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

JURISDICTION:  CRIMINAL APPEAL from the SUPREME COURT exercising Territory jurisdiction

FILE NO:CA 1 of 2021 (21811959)

DELIVERED:  20 August 2021

HEARING DATES:  9 June 2021

JUDGMENT OF:  Grant CJ, Brownhill J and Hiley AJ

CATCHWORDS:

CRIME – Appeals – Appeal against conviction – Unreasonable verdict

Applicant found guilty of sexual intercourse without consent and performing an act of gross indecency following trial by jury – Whether verdicts unreasonable and not supported by evidence at trial – The purported inconsistencies, discrepancies and other inadequacies identified by the appellant did not lead to a satisfaction that the jury, acting rationally, ought to have entertained a reasonable doubt as to proof of guilt – Whether Crown address improper – Crown submission to jury that veracity of appellant not directly challenged in relation to two of the incidents charged – Appellant acquitted on both counts – Submission could have no bearing upon the jury’s consideration of counts for which he was convicted – Appeal dismissed.

BCM v The Queen (2013) 303 ALR 387, GAX v The Queen (2017) 344 ALR 489, Kassab (a pseudonym) v R [2021] NSWCCA 46, Libke v The Queen (2017) 230 CLR 559, Lynch v The Queen [2020] NTCCA 6, M v The Queen (1994) 181 CLR 487, Mucaj v R [2021] NSWCCA 84, Pell v The Queen [2020] HCA 12, R v M, WJ [2004] SASC 345, Roos v R [2019] NSWCCA 67, SKA v The Queen (2011) 243 CLR 400, referred to.

REPRESENTATION:

Counsel:

Appellant:N Redmond

Respondent:  V Engel with C Ingles

Solicitors:

Appellant:Northern Territory Legal Aid Commission

Respondent:  Office of the Director of Public Prosecutions

Judgment category classification:    B

Number of pages:  34

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

FN v The Queen [2021] NTCCA 5

CA 1 of 2021 (21811959)

BETWEEN:

FN

Appellant

AND:

THE QUEEN

Respondent

CORAM:    GRANT CJ, BROWNHILL J and HILEY AJ

REASONS FOR JUDGMENT

(Delivered 20 August 2021)

THE COURT:

  1. Following a trial by jury the appellant was found guilty of five counts of sexual intercourse without consent and one count of performing an act of gross indecency without consent contrary to s 192 of the Criminal Code 1983 (NT).  The appellant was acquitted of six other counts charged on the same indictment.  The appellant brings this appeal against those convictions on the grounds that the verdicts are unreasonable and not supported by the evidence, and that the prosecutor had improperly addressed the jury as to the manner in which the defence had been conducted resulting in a miscarriage of justice.

    Background

  2. The complainant has an autism spectrum disorder with attendant developmental delay and impaired academic functioning.  She was a student in a special needs area at her school. The offences were alleged to have been committed at various times…

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FN v The Queen [2021] NTCCA 5
Case
[2021] NTCCA 5
Decision Date

CaseChat Overview and Summary

The applicant, FN, appealed against his conviction by a jury for sexual intercourse without consent and performing an act of gross indecency. The appeal was heard by Grant CJ, Brownhill J, and Hiley AJ. The dispute centred on whether the jury's verdicts were unreasonable and unsupported by the evidence presented at trial, and whether the Crown's address to the jury constituted an improper submission that led to a miscarriage of justice.

The legal issues before the court were whether the verdicts of guilt were unreasonable and not supported by the evidence, and whether the prosecutor's address to the jury regarding the defence's conduct was improper, thereby causing a miscarriage of justice. Specifically, the court had to consider the appellant's arguments regarding purported inconsistencies and discrepancies in the complainant's evidence, the impact of the appellant's alleged impotence, and the Crown's submission that the appellant's veracity had not been directly challenged in relation to certain acquitted counts.

The court reasoned that the inconsistencies and discrepancies identified by the appellant did not lead to a satisfaction that a rational jury ought to have entertained a reasonable doubt as to the appellant's guilt. The court noted that the complainant's evidence, while subject to cross-examination and the passage of time, was supported by compelling complaint and DNA evidence. Furthermore, the court found that the prosecutor's submission to the jury, which the appellant argued was improper, related to counts on which the appellant was acquitted and therefore could have no bearing on the jury's consideration of the counts for which he was convicted. The court also addressed the issue of corroboration, noting that under relevant legislation, corroboration is not a legal requirement for conviction in sexual offence cases, and that the DNA evidence, if accepted, operated in corroboration of the complainant's account. The court concluded that the jury was entitled to disregard alternative explanations for the presence of the complainant's DNA and that the evidence was sufficient to prove guilt if assessed as reliable by the jury.

The appeal was dismissed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Following a trial by jury the appellant was found guilty of five counts of sexual intercourse without consent and one count of performing an act of gross indecency without consent contrary to s 192 of the Criminal Code 1983 (NT). The appellant was acquitted of six other counts charged on the same indictment. The appellant brings this appeal against those convictions on the grounds that the verdicts are unreasonable and not supported by the evidence, and that the prosecutor had improperly addressed the jury as to the manner in which the defence had been conducted resulting in a miscarriage of justice.Background The complainant has an autism spectrum disorder with attendant developmental delay and impaired academic functioning. She was a student in a special needs area at her school. The offences were alleged to have been committed at various times while the complainant was between 14 and 17 years of age. The complainant is the appellant’s niece. The appellant is married to the sister of the complainant’s mother. The complainant had a close relationship with the appellant’s son, who is a number of years younger than her. During the period in question, the complainant would frequently attend the appellant’s home[1] after school and play video games with the appellant’s son under the supervision of the appellant. The indictment charged 12 offences. Three counts on the indictment (counts 1, 8 and 9) were stand-alone charges in relation to separate incidents: indecent dealing (kissing the complainant on the lips, breasts and neck and touching her breasts and vagina); sexual intercourse without consent (digital penetration while alone in a motor vehicle together); and gross indecency (touching the complainant’s vagina at the public swimming pool). Those incidents were alleged to have been committed at various times in 2016 and 2017. The appellant was acquitted of those charges. Three counts on the indictment (counts 2 to 4) related to a single incident alleged to have taken place at the appellant’s home in 2017. The appellant was said to have told his son to take a shower and, while the son was in the shower, he took the complainant to his bedroom. While there, he engaged the complainant in acts of digital intercourse, penile-vaginal intercourse and fellatio. The appellant was also acquitted of those charges. Three counts on the indictment (counts 5 to 7) related to a single incident also alleged to have taken place at the appellant’s home in 2017. Again, the appellant was said to have told his son to take a shower in the master bedroom. The appellant and the complainant were in the son’s bedroom. While there, he rubbed a small vibrator against the top of the complainant’s vagina, inserted a dildo into the complainant’s vagina and then put his penis into her vagina. The appellant was convicted of those charges. The final three counts on the indictment (counts 10 to 12) also related to a single incident which was alleged to have taken place at the appellant’s home on 1 March 2018. At that time the complainant’s father was in hospital. It was said that the appellant took the complainant with him from the hospital and travelled to his home. While there, the appellant inserted a dildo into the complainant’s vagina, and then engaged the complainant in acts of fellatio and penile-vaginal intercourse, before leaving the unit to pick up the appellant’s son from school. The objective evidence shows that there was only a short window of approximately 10 minutes between the appellant arriving at his unit with the complainant and then departing to collect his son from school. The appellant was also convicted of those charges.

Evidence

Evidence Before The Court

Counsel for the appellant also suggested the possibility that it could be the DNA of another person, and in particular the appellant's wife, who was a blood relative of the complainant. That submission would seem to be predicated on a misunderstanding and misapplication of the expert’s evidence that with the exception of identical twins, every single person has a different DNA code. Evidence concerning the appellant’s impotence The next evidence or matter to which counsel for the appellant drew attention was the unchallenged evidence of the appellant’s wife to the effect that the appellant suffered from impotence. The contention put on this basis was that there must have been some doubt as to whether appellant would have been able to perform certain of the acts alleged within the relevant timeframes. In the case of counts 5 to 7 (of which the appellant was convicted), the conduct was alleged to have taken place while the appellant’s son was having a shower. In the case of counts 10 to 12 (of which the appellant was also convicted), the conduct was alleged to have taken place during the 10 minutes or so between when the appellant and complainant returned to the appellant’s residence and when they subsequently left the unit to pick up the appellant’s son from school. The appellant also told the police that the reason he and his wife had the sexual aids was that “[his] dick [would] never go up” during sex with his wife.[25] However, as counsel for the respondent submitted, that evidence had nothing necessarily to say about the allegations made against the appellant, involving as they did his strong sexual interest in the teenaged complainant. This evidence did not form any part of the address to the jury made by the appellant’s counsel at trial, for obvious and understandable reasons. In relation to counts 5 to 7 specifically, counsel for the appellant contended that the veracity of the complainant was also undermined in the following respects:(a)the complainant had told police that the small vibrator used by the appellant was white,[26] but during the search of the appellant’s premises police found only a white remote control for a vibrator, rather than a white vibrator;(b)the complainant told police that the appellant had taken her clothes off and told her to stay in his son’s room while he got the vibrator from his room, and that when he was using the vibrator on her the appellant was masturbating, but during the course of cross-examination the complainant agreed with the proposition that the appellant did not use a ‘toy dick’ on her on this occasion;[27](c)the complainant had not said anything to the police about digital penetration, but when asked during cross-examination whether the appellant was doing anything else apart from using the vibrator on her, she said: ‘I think he was inserting his fingers in me too, but I could be wrong.’[28] So far as the first matter is concerned, among the items located and seized by police during the search of the appellant’s premises were devices which were described on the property record receipt as a ‘flesh-coloured rubber dildo’, ‘2 pink remote controlled sex toys’, ‘2 black vibrating sex toys with remote’ and ‘1 white NASSTOYS remote’.[29] The complainant may well have had in mind the flesh-coloured rubber dildo and or the white remote control when police asked her what colour was the vibrator during her interview on 11 March 2018.[30] She was endeavouring to provide detail of those and other events that had happened in 2017.

Decision

Reasons for decision

Consistently with the principles and having regard to the circumstances traversed above, these inconsistencies do not go to the essential features of the complainant's account of the offences, and in context are explicable in a manner which does not reflect adversely on her reliability. Moreover, the complainant’s evidence about this event received support from the appellant’s son’s evidence that the appellant was late to pick him up that particular day, the DNA evidence showing complainant’s DNA on the dildo, and the complainant’s description of the ‘toy dick’ which matched one of the items found by police during the course of the search conducted by police at the appellant’s home on 13 March 2018.Conclusions As described at the outset, the cross-examination of the complainant was lengthy and took place some 18 months after she had told the police what had happened to her, not only 10 days earlier but also over a period of about two years commencing in 2016 when she was 14 years of age. Understandably, her memory about particular occasions would have been diminished not only by the passage of time but also because of the similarity in circumstance between much of the offending which she alleged, involving as it did various sex objects and activities. The lengthy cross-examination enabled the jury to carefully observe the complainant when she was giving her evidence, particularly at the later stages of her cross-examination on the third day of evidence where most of the alleged inconsistencies now asserted by the appellant emerged. The jury was also entitled to have regard to the psychiatrist's evidence about the complainant’s developmental and other difficulties when considering how to assess her performance under the stress of cross-examination, and the nature, content and context of her complaints in relation to each of the incidents. As has also been described, the complainant's evidence was attended by compelling complaint and DNA evidence. The complainant’s failure to complain earlier in relation to the incidents in 2016 and 2017 was quite understandable in light of the fact that her complaints involved a close family member, and had the potential for broad and destructive ramifications in the broader family context. Also understandably, she would have been worried that she would not be believed. She had already created difficulties by engaging in activities which her parents did not approve of such as having sex with her boyfriend when she was 14 and lying about that, smoking, lying to a school teacher about being pregnant and lying and fantasising on other occasions. Having regard to all of those matters, it was open to the jury to conclude that the delay in making complaint did not fatally undermine the complainant’s reliability in relation to the essential elements of the offences for which the appellant was convicted. There are two further matters which warrant mention in this context. First, counsel for the appellant did not press as a freestanding ground of appeal that the verdicts were inconsistent. That was no doubt because it could not be said that the evidence in relation to the different counts was so co-extensive or interdependent that the verdicts of acquittal and conviction could not reasonably and logically stand together. However, counsel for the appellant submitted that the conviction on some charges and the acquittal on other charges involving similar scenarios or circumstances illustrated, or was at least reflective of, the unsafe and unsatisfactory nature of the verdicts for conviction. That does not necessarily follow. As the New South Wales Court of Criminal Appeal observed in Mucaj v R (citations omitted):It is not to be assumed that a jury, properly directed, will have misunderstood its proper function, or misapplied itself to the evidence in convicting on some counts and acquitting on others. There are a number of reasons why apparently inconsistent verdicts may reflect a correct discharge of the jury’s function. First, as explained by King CJ in R v Kirkman, in a passage adopted in MacKenzie, where there have been multiple charges, with convictions on some but not others, it may be proper to infer that the jury has taken a “merciful” view by not convicting on all counts, although the evidence may have supported such convictions. That is not this case: there were four counts involving reasonably discrete incidents, but within a short timeframe.Secondly, and more importantly in the present context, a careful consideration of the evidence may demonstrate “available explanations for the differentiation in the verdicts which are consistent with the assumption that the jury approached their task in a proper manner and did not simply compromise their function.”[38]

Ratio Decidendi

Legal Principle Established

During submissions, counsel for the appellant contended that the complainant had a motive to lie about the appellant’s conduct because during their discussion on the morning of 9 March 2018 the special needs education officer had asked her about rumours going around that the complainant was possibly smoking or hanging around with smokers. The complainant initially denied smoking, but shortly afterwards she apologised for lying about that and said she thought she would get into trouble for smoking.[22] It would seem to be an exercise in pure speculation that this could or would have led the complainant to fabricate serious allegations of sexual misconduct against her uncle, particularly in the realisation of the detrimental effect that would have upon her family and her good relationship with the appellant’s son.Corroboration In addition to the assertions made concerning the complainant’s condition and behaviours, it was submitted that there was no corroboration of the complainant’s evidence apart from her complaints on and after 9 March 2018 and the evidence of the complainant’s DNA on the dildo which had been seized from the cupboard in the appellant’s bedroom. That submission must be considered in light of the fact that: (a) the Evidence (National Uniform Legislation) Act 2011 (NT) abolishes the requirement that evidence be corroborated and the trial judge give the jury a warning or direction in relation to the absence of corroboration, and precludes the trial judge from giving the jury a general warning of the danger of convicting on the uncorroborated evidence of a witness who is a child;[23] (b) the Sexual Offences (Evidence and Procedure) Act 1983 (NT) provides that on the trial of a person for a sexual offence the trial judge shall not warn the jury that it is unsafe to convict on the uncorroborated evidence of a complainant because the law regards complainants as an unreliable class of witness;[24] and (c) in any event, the DNA results provided evidence which, if accepted by the jury, operated in corroboration of the complainant’s account. In that latter respect, this was not a case in which the other evidence was insufficient of itself to prove guilt. The complainant’s evidence, by itself, was sufficient to prove the appellant’s guilt if assessed as sufficiently reliable by the jury. That evidence was corroborated in the first instance by the unchallenged evidence of opportunity. Although that bare opportunity was insufficient to establish the guilt of the appellant to the requisite standard, it was an item of circumstantial evidence. The DNA evidence was further corroborative of the complainant’s account, and so enhanced the reliability of that account, unless the jury concluded there was a possibility that its presence on the dildo was the result of secondary transfer or some handling of the item by the complainant unrelated to sexual misconduct on the part of the appellant. The jury was entitled to disregard the possibility that the presence of the complainant's DNA related to other offending for which the appellant was acquitted or not charged. It would have been logical for the jury to conclude that the complainant’s DNA must have been left on the dildo at the time of this offending on 1 March 2018, less than 2 weeks prior to the DNA swabs being obtained from the complainant, rather than at the time of any of the other offending in 2017.