G A v The Queen
[2012] VSCA 108
•12 June 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2011 0282
| GA | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | NEAVE, OSBORN JJA AND KING AJA |
| WHERE HELD | GEELONG |
| DATE OF HEARING | 31 May 2012 |
| DATE OF JUDGMENT | 12 June 2012 |
| MEDIUM NEUTRAL CITATION | [2012] VSCA 108 |
| JUDGMENT APPEALED FROM | DPP v [GA] (Unreported, County Court of Victoria, Judge Taft, 17 August 2011 (date of conviction)) |
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CRIMINAL LAW − Conviction − Appellant convicted of one count of sexual penetration of a child under the age of 16 years − Whether jury verdict unreasonable and cannot be supported by the evidence − Appeal dismissed.
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APPEARANCES: | COUNSEL | SOLICITORS |
| For the Appellant | Mr P Morrissey SC | Brown McComish Lawyers |
| For the Respondent | Ms D Piekusis | Mr C Hyland, Solicitor for Public Prosecutions |
NEAVE JA:
OSBORN JA:
KING AJA:
The appellant, GA, was convicted by a unanimous County Court jury of one count of sexual penetration of a child under the age of 16 years, contrary to s 45(1) of the Crimes Act 1958. He now appeals, with leave, against that conviction.
GA, who was 27 at the time of the alleged offence on 11 July 2010, lived in Warrnambool with his wife, his three step daughters and his two sons with his wife. The complainant, TT, was a close friend of GA’s eldest step daughter, A. TT was 14 years old at the time of the offence.
The offence came to light after TT told two school friends, U and P, that she had a relationship with GA and had had sex with him. U subsequently told a school counsellor, who in turn notified police. TT was interviewed by police on 16 September 2010.
The Crown case at trial
The Crown led evidence from TT, her two friends U and P, GA’s wife and TT’s mother. It also tendered a series of text messages between TT and GA. Some of the texts from GA were sexually explicit. The texts and telephone records showed that there had been around two and a half thousand interactions between GA and TT in a three-month period from June 2010.
GA did not give evidence at trial, although his record of interview was tendered by the Crown.
TT’s evidence
In her VARE[1] tape, TT said that her best friend was GA’s step daughter, A. She said that she often stayed with their family, and had become ‘really, really good friends’ with GA.
[1]Video and audio-recorded evidence.
TT told police that she had stayed with GA’s family for the entire two week school holiday in July. On the last day of the holidays, which was a Sunday, GA’s wife was visiting Melbourne with their children and at around 10 am, GA dropped A at her boyfriend’s house. He returned home where TT was alone.
TT said that after around five minutes passed, she was lying on a bed and GA ‘got on top of [her]’, and they had intercourse. He kissed her, and she kissed him back. She said that at one point, she was ‘sitting on top of him’, that the sex was ‘not very long’, and was protected, as he used a condom.
TT said she could not remember which room they had sex in, and that afterwards they both got dressed and ‘not much’ was said between them. GA then drove her home. In the car, GA told her about pranks he played whilst at boarding school. TT said they subsequently talked about ‘doing it again but in the end we never actually did’. She said this was because she did not want to do so as it was ‘complicated’ and she ‘just couldn’t be bothered sneaking around’.
When asked what conversation had occurred prior to the sexual act, she said ‘we didn’t really talk about it, it kind of just happened’. She also told police that she loved GA and that he had told her he loved her. She described him as ‘really, really, really nice’. He had bought her a necklace with the letter ‘T’ on it, and would buy TT and his step-daughter junk food and soft drink.
TT was cross-examined at a special hearing prior to the trial. During cross-examination, TT agreed that she spent time with GA’s family because she was unhappy at home. She was also getting into trouble at school at the time. She agreed that she had ‘quite a crush’ on GA, and that he was depressed and anxious about his studies and she had offered him ‘a lot of comfort and a lot of [her] time. She said that she did not notice anything unusual about GA during sex, and said that he had not made any complaints about having a sore penis or any difficulties.
TT said that she was menstruating when she had sex with GA. TT was asked if there were any blood or semen stains on the bed and she responded ‘probably blood because I had my period’. It was put to her that if what she said was true there would have been blood on the sheets and she said ‘true’ and then said she remembered seeing blood. She said that they did not lie in bed together afterwards, but both got dressed straight away. She agreed that he drove her home within ten minutes of them having sex, which was around midday, and said that there was no kissing or cuddling in the car on the way home.
She did not think her mother was present when she returned home, but ‘she might have been’. She was asked whether if her mother said she was dropped home by the appellant at around 6.30 in the evening ‘that would be completely wrong according to you’ and she said she did not know.
It was put to TT several times that she had made up the allegations and she denied that was the case. She said that she had talked to her friend, P, about her relationship with the appellant and showed her some texts, because she ‘needed someone to tell’.
In re-examination, she was asked whether the appellant had said how he felt about her and replied: ‘He said he loved me too’.
Evidence of school friends
P was interviewed by police on 21 September 2010 and made a VARE tape. She said that she had known TT for three or four months, that they told each other everything and their friendship was ‘pretty close’. From around August, TT had shown her numerous text messages on her mobile phone and on her Facebook page. The messages consisted of ‘cute little goodnight messages’ and questions about the weekend, and also included ‘phone sex’. One of the text messages referred to ‘fingering her in the car’ after school.
She said that TT eventually told her that the sender of the messages was ‘[A’s] dad’. P had expressed concern that A might find out and TT had told her that this would not happen because GA had locks on his phone and she had put his name under ‘Babe’ on her phone. P said she thought it strange that GA used to pick TT up from school, while A and her younger sister went on the bus. She had seen GA pick up TT in a white car on two occasions. P said that TT was in love with GA and had talked more about him in general than about their sexual relationship. However, TT had told her that she had had sex with GA ‘three or four times’, at his house when GA’s wife had been out. TT also said that on one occasion, she had had sex with GA in the car while A was inside her grandmother’s house.
At the special hearing, TT denied in cross-examination that she had told P that she had had sex with GA three or four times, or that she had sex in a car.
U was interviewed by police on 5 March 2011 and made a VARE tape. U told police that TT had told her that she had had sex with GA ‘more than once’. TT told U that ‘it just wasn’t a one time thing and that she was in love with him and that they wanted to run away together’. U said that she had seen TT being picked up by a man in a car after school and that P had told her this was GA.
U also said that TT had described ‘games’ which she and A would play on GA to ‘get him excited’, such as sucking on his fingers and dancing around. U said that she did not believe TT and thought she was ‘just saying that to get attention’.
During the trial, U gave further evidence that TT told her and P that she was four months’ pregnant. However, U said that she had not believed her.
During cross-examination, TT denied having told U that she had sex with GA more than once. She confirmed, however, that she had told U about the game which she and A played in sucking GA’s fingers. The informant, Detective Leading Senior Constable Neagle, said that when he and officers from the Department of Human Services had asked GA’s stepdaughter A about this she denied that it had happened at all.
Evidence of TT’s mother
TT’s mother, TJ, gave evidence that TT had become ‘unresponsive’ and ‘quite rude’ after having started high school. She agreed during cross-examination that she saw this as ‘attention seeking behaviour from a teenager’. She said she had not known that GA and her daughter were texting each other and that TT had told her that a necklace she wore with the letter ‘T’ on it was a gift from A.
Her evidence was that, after having stayed with GA’s family for the two week school holiday, TT was dropped home by GA at around 6.30 or 7 pm on Sunday evening.
Evidence of GA’s wife
GA’s wife, GD, gave evidence that TT ‘basically lived with’ her, as TT was having problems at home. TT had told her that she had arguments with her parents, mainly her father, who was verbally and physically abusive towards her. GD said TT called her ‘mum’, and called GA ‘dad’, and ‘considered herself to be a part of the family’. GD said that she had taken all of her children except A to Melbourne the night before the alleged offence occurred and at that time TT was lying on GD’s bed crying, and saying her stomach hurt and that she thought she had period pain.
In cross-examination, GD said that she was in charge of house work, and her washing day was Monday. When she returned from Melbourne on 11 July 2010, she did not see any blood on the bed or bedclothes of any of the kids’ beds. In re-examination, GD admitted that, if there had been only light spotting on the bedclothes, she might not have seen it.
GD gave evidence that GA suffered from a condition known as ‘restrictive foreskin’, which could cause small cracks to occur on his foreskin when he had an erection. The condition made use of a condom uncomfortable for GA, and the couple had not used condoms since her tubal ligation in 2004.
After intercourse, his penis would be swollen, and have small cracks and bits of blood on it. The swelling and redness of his penis would persist for several days after sex. As a result of this condition, she and GA developed a practice of having sex on Sunday night. As GA would spend the week studying in Ballarat, this would allow him time to heal before returning home. Although she had had both oral sex and intercourse with her husband on the night of Sunday 11 July, she had not seen the faintest sign of redness on her husband’s penis.
After GD gave the evidence described above the prosecutor foreshadowed his intention to seek leave to cross-examine her under s 38(1)(a) of the Evidence Act 2008 on the basis she was an unfavourable witness. Defence counsel did not object to her being asked limited questions, without leave being formally granted under s 38(1)(a). In response to questioning from the prosecutor, GD said that the duration and extent of intercourse would have an effect on the amount of cracking observed. GD conceded that when she returned home, she had no reason to believe the appellant had been engaged in sexual intercourse or to look for any signs that this had occurred. When she was interviewed by the police, she had not referred to her husband’s restrictive foreskin condition.
Medical evidence
A report was tendered by Dr Donald Moss, who had conducted an examination of GA’s penis. Dr Moss described GA’s foreskin as being ‘somewhat tight’ and observed evidence consistent with his penis having undergone ‘healing changes after previously being split or torn’. Dr Moss obtained a history from GD, who said that GA’s foreskin had always been tight on erection, and had split and bled on almost every occasion they had intercourse. Based on the above, Dr Moss concluded that ‘it is likely, although not certain, that [GA’s] foreskin would split and bleed during intercourse.’
GA’s record of interview
GA was interviewed by police on 17 September 2010. He denied that he was in a sexual relationship with TT.
He said that on 11 July, TT ‘slept pretty much all day’, while he studied and that he dropped her home at around dinner time on the way to pick up A from her boyfriend’s house. When asked what else happened on that day, he said ‘that’s it’.
He was taken through a number of text messages sent from his mobile phone to TT. For instance, he was asked to read out a message he had sent TT on 28 August 2010, which said:[2]
I love everything about you too;). Like I said if it wasn’t for you, I’d be in a bad place still. And I promise I won’t do anything stupid coz I am loving having you in my life;). Your my angel and my everything now, and always will be xoxoxo.
[2]The emoticons used by the appellant are included in the text messages reproduced below.
He was then questioned about his relationship with TT, and said that she would ‘settle things up’ when he was having trouble with his daughter (presumably A), and would also ‘smooth things out’ when he was fighting with his wife.
He was then referred to a message of 23 August 2010, which read:
Well, I won’t let you down. I’m the happiest I’ve been in years. I feel like I am a young hot guy again because of you ;). I promise to be the best boy I can for you and I am so happy we found each other. I finally found someone that likes me for who I am ;). I found my own angel.
When asked what that message was suggestive of, GA replied ‘it sounds pretty bad, doesn’t it?’ He was then taken to another message on 23 August 2010, in which he said:
Well I want you forever babe, if that’s cool with you;). Good night sweety. I’m already missing you;). I love you heaps and heaps. Txt me tomorrow when ya can. Mwaa.
He responded that ‘it’s pretty flirty, isn’t it?’ He said he did not recall sending a text, in which he said:
And I would say, I love you babe and I’m never gunner leave you;). Then I would put both my hands on ur bum, push myself the way in and pulse really hard while I moan softly in your ear.
After reading several other messages, GA was referred to the following message from 31 August 2010, which said:
Thanks babe you had me worried for a second :(. All I want at the end of this is you in my arms, kissing me and telling me u love me :). It feels like I’m losing everyone except you.
He was then asked whether he was in a sexual relationship with TT, which he denied. A text message from 1 September 2010 was then put to him which read:
I know. I can’t help it. But even though I know what I’m doing is wrong. Loving you just feels so right. I can’t help loving you. My heart is yours forever.
He explained the reference to ‘what I’m doing is wrong’ to mean that TT wanted him to be her father, but it was wrong to treat her as a daughter because ‘she’s got her own dad’. He similarly explained a message which read ‘I can’t regret it. I’m staying true to my heart and my heart wants you’ as a reference to him saying she was his daughter.
Evidence of text messages
In addition to the messages put to the appellant in his police interview, a ‘device report’ was exhibited at trial, which set out the contents of other messages sent by GA to TT. Many of these were explicitly sexual and/or expressed the appellant’s love for the complainant. They included the following:
23/8/2010 8:52:20PM I love you too. My sexy little angel.
23/08/2010 4:10:08PM Me too ;) you are my babe
23/08/2010 10:34:52AM If I had u right now I would probably lose control lol
23/08/2010 10:33:17AM Me too ;) I want you now
23/08/2010 10:18:38AM Just don’t tease me first, and I want you so much, I’ll probably want to do it twice ;)
23/08/2010 9:49:16AM Yep a bubble bath, and I would rub soapy bubbles all over you’re body while I cuddle you between my legs
23/08/2010 9:45:28AM I know, it sucked :( but I still loved having you lie against me, I could smell you hair and cuddle u tight. That’s all I needed but I could have had more ;). Like a bath with you.
23/08/2010 9:40:58AM One day you won’t have to let go ;) I loved cuddling you on the couch yesterday, Thanku for letting me ;)
23/08/2010 9:28:54AM No way, I would remind you that I love you more then I would slide you on top of me and I would be your boy pillow ;). And would keep running my fingers up and down ur back.
23/08/2010 9:18:26AM Awhh, I would press my hips against yours and cuddle u tightly and whisper in your ear and say you have me forever coz I love my angel
23/08/2010 9:12:16AM He’ll yeah it would ! And then I would run my fingers softly up and down your back in circles, making u lean forward then I would kiss ur chest with very warm wet lips ;)
23/08/2010 9:07 AM I would love to kiss ur tummy and then curl up against u like I did that morning before I crashed.
31/08/2010 11.20 PM Thanks babe, you have me worried for a second All I want at the end of this is you in my arms, kissing me and telling me u love me :). It feels like I’m losing everyone except you.
1/09/2010 3.44 PM I fucking love you so much. I just wish I tell everyone and brag.
10/09/2010 9.57 PM Thank u bubby. I wouldn’t be able to sleep things some boy was touching u.
10/09/2010 9.57 PM I just don’t want some fuck head touching my baby
Appeal against conviction
The sole ground of appeal is that:
The verdict of the jury is unreasonable or cannot be supported having regard to the evidence, pursuant to section 276(1)(a) of the Criminal Procedure Act 2008.
The appellant’s counsel asked the Court to view the VARE tapes of the police interviews with TT, P and U and the recorded evidence of TT at the special hearing. During the hearing, the appellant’s counsel submitted that the Court was in as good a position as the jury to assess the credibility of the witnesses because all of TT’s evidence was visually recorded, as were the VARE tapes (though not the cross-examination) of her friends. He submitted that because of the availability of these recordings, it could not be said that the Court lacked the advantage which a jury has in seeing and hearing witnesses and that the Court was therefore in as good a position as the jury to decide whether TT was a credible witness and whether the jury verdict should be set aside.
The appellant’s counsel argued that, in light of the evidence summarised above, the jury were compelled to have a reasonable doubt about whether a sexual act had occurred. It was submitted that TT’s statements to her friends that she had sex with GA more than once indicated that she was involved in attention-seeking behaviour and that her reliability and credibility were ‘fundamentally compromised’. U and P had each given evidence that TT told them that she had had intercourse with GA on more than one occasion. That evidence showed that TT had lied on oath by denying she had said this to her friends (regardless of the truth or falsity of what she told them) and accordingly it raised a reasonable doubt about her evidence that she had had sex with the appellant. In his closing address, the prosecutor had in fact conceded that ‘there are aspects of exaggeration in her evidence. She might be trying to impress her friends.’
The appellant also submitted that TT’s evidence was inconsistent with the evidence of other witnesses in a number of other respects. Her evidence that she observed blood on the bed sheets after having intercourse with GA conflicted with GD’s evidence that there was no blood on the bed clothes when she washed the sheets the following day. It was also inconsistent with GD’s evidence that she had sex with GA on the evening of the same day that he was alleged to have had sex with TT and she did not observe ‘the faintest sign’ of any splitting or swelling on GA’s penis.
TT had given evidence that she was driven home within ten minutes of having sex with GA. In contrast, her mother testified that she arrived during dinner time (which is consistent with the time given by GA in his record of interview).
Finally, the appellant argued that TT’s account was ‘unlikely, counter-intuitive and bizarre’, because she had simply made the ‘bare bones of an allegation’, without providing any salient details. She could not say which room of the house she had sex in, despite being familiar with the house. The events described by her are said to be ‘counter intuitive’, because there was no preliminary discussion or flirtation, sex occurred despite the fact she was menstruating, there was no cuddling afterwards, neither she or GA showered and GA drove her home immediately despite the absence of urgency. Further, the acts had not been repeated, as might have been expected.
Conclusion
The test for determining whether a jury verdict is unreasonable and cannot be supported by the evidence was considered by the High Court in M v The Queen[3] where Mason CJ, Deane, Dawson and Toohey JJ said that:
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.[4]
Their Honours further said that:
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’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.[5]
[3](1994) 181 CLR 487.
[4]Ibid 493
[5]Ibid 494
Counsel for the appellant conceded that not all of the evidence had been recorded and that even if this had occurred, the test in M v The Queen required the Court to consider whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. Nevertheless, counsel argued that the fact that recorded evidence was now available to appellate courts required appellate courts to make their own judgments as to the credibility of witnesses. As a consequence, the court might experience a doubt which required a jury verdict to be set aside, when such a doubt would not have arisen in the absence of the recorded evidence.
Although recordings of complainants in sexual offence trials are often now available to appellate courts, this does not alter the constitutional division of powers between judge and jury. In M v The Queen, the High Court emphasised the importance of preserving the primary fact finding role of the jury.[6] Similarly R v Vjestica,[7] Maxwell P said:
[6]Ibid 502 (Brennan J).
[7](2008) 182 A Crim R 350.
[T]he question posed in M v The Queen, namely
Was it reasonably open to the jury to be satisfied beyond reasonable doubt of the accused’s guilt?
requires the court of criminal appeal to decide
whether the state of the evidence was such as to preclude a jury acting reasonably from being satisfied of guilt to the requisite standard.
To adopt some helpful metaphors from recent interstate appellate decisions, the question is whether there was a ‘solid obstacle to reaching a conclusion beyond reasonable doubt’ or whether, instead, the ‘path to a conviction was open’.
Again, to conclude that a guilty verdict was not reasonably open on the evidence is equivalent to saying that no reasonable jury could have returned that verdict on the evidence as presented in the trial. This was the approach of the South Australian Court of Criminal Appeal in R v Shueard,[8] cited recently by that Court in Shah,[9] as follows:
To establish that a verdict is unreasonable or that it cannot be supported having regard to the evidence, it is not enough merely to show that the evidence given at the trial is open to criticism. If there was evidence which, if fairly regarded, could have led a reasonable jury to return a verdict of guilty, a conviction will not be quashed on the ground that the verdict was unreasonable, even if the members of the Court of Criminal Appeal do not feel that they themselves would have regarded it as necessarily establishing guilt. In order that the appeal should succeed on this ground the verdict must be such that no reasonable jury could properly have returned it upon the evidence given. This Court must not usurp the functions of the jury.[10]
[8](1972) 4 SASR 36
[9][2007] SASC 68, [6] (Debelle J).
[10]R v Vjestica (2008) 182 A Crim R 350, 370 (citations omitted).
As requested by the appellant’s counsel, we have viewed all of the recorded evidence, as well as reading the trial transcript. In our view, the Crown case against the appellant was a strong one and it was well open to the jury, on the whole of the evidence, to be satisfied beyond reasonable doubt that the appellant was guilty of the offence. Our reasons are as follows.
First, the defence hypothesis was that the complainant was a troubled girl who had fabricated the allegation that she and the appellant had sex in order to gain attention. There was a sufficient basis on which the jury could have rejected the defence attacks on the complainant’s credibility entirely or in part. The only real conflict between TT’s evidence and that of her friends related to the number of occasions on which she allegedly had intercourse with the appellant. With that exception, TT’s evidence was consistent with U and P’s evidence, including their evidence that TT told them she was having a relationship with the appellant and P’s evidence that TT said that a sexual act took place between them in the last two weeks of the school holidays.
The volume of the text messages sent to TT by the appellant, and the explicitly sexual nature of many of them, provided strong support for TT’s account. Further support was provided by the evidence of P and U that they saw GA picking her up after school and taking her for a drive on two occasions, by P’s evidence that GA picked her up from school but left his own children to take the bus, and by the entirely unconvincing explanation GA gave for sending explicit sexual messages to her when he was interviewed by the police.
In assessing TT’s credibility, the jury was entitled to give weight to the fact that the complainant told the police that she was in love with the appellant and he with her, but they had only had intercourse once and that she consistently maintained that position under cross-examination. It was open to the jury to consider that the defence attack on TT’s credibility was undermined by the fact that it was not TT who reported the matter to the police and that the matter was reported as a result of her friends’ approach to the school counsellor.
Moreover, even if the jury considered that TT had exaggerated the number of times she had had intercourse with GA when speaking to her friends, it was open to them to consider that she was not prepared to continue with this exaggeration when interviewed by police and when giving evidence in court. Further, even if the complainant had exaggerated the extent of her sexual contacts with the appellant, and had lied about this in court, it was well open to the jury on the basis of all of the evidence to believe the complainant about the conduct providing the basis for the charge.
The appellant alleges that the lack of contextual detail about the sexual behaviour made that behaviour improbable. For example, it was said that it was unusual or unlikely for the complainant and the appellant to have engaged in sexual intercourse for only five minutes in circumstances where the act was not preceded by foreplay or any subsequent expression of affection between them.
We would reject the submission that the complainant’s account could not be believed because she gave only the ‘bare bones’ of the sexual encounter. We have described her evidence above. In her VARE interview, the complainant said that she and the appellant had kissed, that she had kissed his neck, that he had put on a condom and got on top of her, that she had got on top of him and that she, when she had undressed, had left her menstrual pad in her underwear.
Moreover, the jury might well have taken the view that the complainant’s failure to describe the act of intercourse in clinical detail reflected her embarrassment at having to do so.
Secondly, it would not normally be expected that a man in a relationship equivalent to that of father/daughter with a young girl would tell his ‘daughter’ that she makes him feel like a ‘young hot guy’, or send her a message describing his desire to ‘push [him]self in all the way’. In considering whether the case against the appellant was established beyond reasonable doubt, the jury was entitled to give weight to the fact that the appellant’s explanations during his police interview of the meaning of the text messages were strikingly lacking in credibility. The fact that he and the girl were sending each other many text messages, some of which included explicitly sexual material, does not of itself prove that the particular sexual act occurred. But it was open to the jury to conclude that the appellant’s concealment of the complainant’s ‘crush’ on him from his wife, the fact that he had picked her up from school on at least two occasions without telling his wife, and the fact that he had sent her very explicit sexual messages after the alleged offence had occurred, all tended to suggest that their behaviour had gone beyond ‘phone sex’ to actual sexual interaction.
Thirdly, GA’s wife’s failure to see any blood spotting on the sheets of the children’s beds did not require the jury to experience doubt about the complainant’s evidence. In re‑examination, the wife agreed that she might well not have seen light spotting on the sheets. Further, even if such spotting had been present, GA’s wife knew that the complainant had her period at the time. At a time when no allegations had been made against her husband, she might well have thought nothing about the existence of blood on the sheets, or even recalled that it was present, when she did the washing on the Monday following the alleged offence.
Fourthly, the jury might not have accepted the whole of the wife’s evidence and even if it had found her a credible witness, might well have taken the view that the wife’s failure to observe redness on the appellant’s penis was explicable. Although the appellant’s wife said she had oral sex as well as penile/vaginal intercourse with him, there was no evidence as to whether she looked closely at his penis while doing so. As she conceded in response to questioning from the Crown, she had no reason to look for signs of him having recently had intercourse. Nor was there any evidence as to the circumstances in which the acts of oral sex or intercourse occurred, for example, whether the couple had sex in a well lit room or with the lights off.
Fifthly, the medical evidence fell short of suggesting that if the appellant had briefly engaged in sexual intercourse with the complainant the skin on his foreskin would inevitably have split and bled. GD said that the extent of splitting depended on the duration of intercourse. The appellant had intercourse with his wife at least once a week, and was the father of two children. Dr Moss’ conclusions were, in part, based on the history that he obtained from GD. The jury were not bound to accept that history.
Sixthly, the complainant said that the appellant had worn a condom when they had sex. GD’s statement that her husband found it uncomfortable to wear a condom because of his foreskin condition did not require the jury to experience a reasonable doubt about whether the alleged act occurred. Even if the jury accepted that GA disliked using condoms due to discomfort, it was open to the jury to find that he used a condom with TT to hide the sexual activity from his wife, or to protect TT against pregnancy.
No medical evidence was led on the impact of condom usage on GA’s ‘restrictive foreskin’ condition or on whether the use of a condom would have made it more or less likely that the skin on his penis would be affected by intercourse.
Finally, when interviewed by police, the appellant did not immediately refer to the condition of his penis in order to refute the allegations made by the complainant. Whilst his failure to do so could have been explained by his shock at being confronted with a false accusation that he had had intercourse with the complainant, the jury might well have been sceptical about his failure to mention the restrictive foreskin condition. His wife, who was interviewed two days later, did not mention the condition either.
For these reasons, we would dismiss the appeal against conviction.
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