G v The State of Western Australia
[2007] WASCA 202
•28 SEPTEMBER 2007
G -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 202
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASCA 202 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:26/2005 | 6 AUGUST 2007 | |
| Coram: | WHEELER JA PULLIN JA MILLER JA | 28/09/07 | |
| 28 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | G THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Appeal Criminal law and procedure Convictions of sexual offences Verdict Whether unsafe or unsatisfactory Appellant acquitted on some charges, but convicted on others Whether open to the jury to be satisfied beyond reasonable doubt of guilt of the appellant on certain counts, but not others Whether verdicts of guilty inconsistent with verdicts of acquittal |
Legislation: | Criminal Code, s 323, s 325, s 388A(d) |
Case References: | Kilby v The Queen (1973) 129 CLR 460 MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 R v Whitehead [2000] NSWCCA 400 VIM v Western Australia [2005] WASCA 233; (2005) 31 WAR 1 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : G -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 202 CORAM : WHEELER JA
- PULLIN JA
MILLER JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : EATON DCJ
File No : IND 572 of 2003
Catchwords:
Appeal - Criminal law and procedure - Convictions of sexual offences - Verdict - Whether unsafe or unsatisfactory - Appellant acquitted on some charges, but convicted on others - Whether open to the jury to be satisfied beyond reasonable
(Page 2)
doubt of guilt of the appellant on certain counts, but not others - Whether verdicts of guilty inconsistent with verdicts of acquittal
Legislation:
Criminal Code, s 323, s 325, s 388A(d)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr S B Watters
Respondent : Mr P D Yovich
Solicitors:
Appellant : A J Lloyd
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Kilby v The Queen (1973) 129 CLR 460
MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
R v Whitehead [2000] NSWCCA 400
VIM v Western Australia [2005] WASCA 233; (2005) 31 WAR 1
(Page 3)
1 WHEELER JA: I have had the advantage of reading in draft the reasons for decision of Miller JA. His Honour has summarised the facts in sufficient detail for my purposes. I agree both with his Honour's conclusions and with his reasons, and wish to add only a very brief summary of my own, which I think reflects the way in which Miller JA has approached this case.
2 There are certain observations made by Gleeson CJ, Hayne and Callinan JJ in MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606, at [34], which are in my view, particularly appropriate to the present case. That paragraph reads:
Since the ultimate question concerns the reasonableness of the jury's decision, the significance of verdicts of not guilty on some counts in an indictment must necessarily be considered in the light of the facts and circumstances of the particular case. Furthermore, it must be considered in the context of the system within which juries function, and of their role in that system. A number of features of that context were emphasised in MacKenzie. They include the following. First, as in the present case, where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count. This will often be accompanied by a specific instruction that the evidence of a witness may be accepted in whole or in part. Secondly, emphasis will invariably be placed upon the onus of proof borne by the prosecution. In jurisdictions where unanimity is required, such as New South Wales, every juror must be satisfied beyond reasonable doubt of every element in the offence. In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. This may not be unreasonable. It does not necessarily involve a rejection of the complainant's evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant's evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others. Thirdly, there is the consideration stated by King CJ in R v Kirkman, and referred to in later cases: it may appear to a jury, that, although a number of offences have been alleged, justice is met by convicting an accused of some only. And there may be an
(Page 4)
- interaction between this consideration and the two matters earlier discussed. (Footnotes omitted)
3 In the present case, the jury was directed by his Honour the learned trial judge, at pages 935 - 936 of the electronic transcript, that there had been, in effect, 12 separate trials, that they should consider each count separately, and that it did not follow from the fact that they convicted on one that they would convict in respect of others, although, as his Honour noted, certain of the evidence was common to more than one count. His Honour, of course, emphasised the burden and standard of proof. Indeed, his Honour began his direction by observing, vividly and with some emphasis, that the trial was not, and was never intended to be, "a level playing field" and that it was for the State "with all its resources and power and financial clout" (t/s 930) to bring and to prove the charges against the accused.
4 A jury which approached its task with caution, in accordance with his Honour's directions, might, it seems to me, proceed in the following way in relation to those counts involving sexual conduct. They might be of the view that, broadly, they believed the complainant to be a witness of truth. They might consider, in relation to the counts involving the making of threats (counts 2, 6 and 7) that there was ample evidence to support that conclusion that the complainant had, at relevant times, appeared to be afraid of the appellant, so that the threats described by her were likely to have occurred. They might therefore consider that they did accept that the appellant had unlawfully and indecently assaulted her and engaged in sexual penetration without consent. However, they might also form the view that, having regard to the onus and standard of proof, they would, nevertheless, not convict the applicant in relation to any count where either there was significant evidence inconsistent with the account given by the complainant (as in relation to count 1), or where there was not evidence which was supportive of the complainant in relation to the two principal elements of the offence, they being that the activity alleged had occurred, and that it had occurred without her consent.
5 So far as counts 3 and 5 were concerned, the appellant, of course, denied that there had been sexual activity between himself and the complainant, and there was no evidence which was directly supportive of that allegation other than the evidence of the complainant. It might be open to regard the appellant's alleged lie on that occasion as evidence of consciousness of guilt in relation to count 5, and a difference of view about this matter may well explain the inability to agree in relation to that count.
(Page 5)
6 So far as counts 8 to 12 inclusive were concerned, the jury might well have considered that there was evidence supportive of the complainant's account of the lack of consent, which they may have found in the evidence of the driver M (who gave evidence about the complainant's distress when she received a telephone call, and the "extremely aggressive" tone of the male who spoke to him) and in the statement of the service station operator which was read to the court, which spoke of the complainant's demeanour immediately afterwards as being "quite upset". There was also, of course, the evidence of the recent complaint to the complainant's daughter, which gave some support, although the daughter may not have been regarded as an entirely independent witness. The jury may have considered that the telephone records were consistent with the complainant's truthfulness in relation to the general chronology of events at that time, and inconsistent with the truthfulness of the appellant. However, in relation to the elements in each case which alleged that particular activity had occurred, the only evidence directly supportive of the complainant's account of the physical acts which had taken place was that of the appellant. It was only in relation to counts 10, 11 and 12 that he gave evidence of activity (albeit he said that it occurred somewhat differently and occurred with the complainant's consent) which supported the complainant's account of the physical acts which had taken place.
7 Finally, so far as counts 6 and 7 - the two threats - were concerned, it is to be noted that they were relatively close together in time and it might well have been open to the jury to form the view either that there was but one continuing course of threatening conduct, so that justice was met by convicting the appellant of only one of them, or alternatively they may have been persuaded, as a result of the evidence of the driver M, that the first of the two threats had occurred, but (following the principle of not convicting where there was no evidence directly supportive in relation to a particular count) may have found that there was no supportive evidence in relation to count 7 and therefore acquitted of it.
8 If the verdicts are understood in the way I have described above, then they would reflect a cautious, but logical, approach by a jury which generally accepted the veracity of the complainant, but which was not prepared to convict on her word alone.
9 PULLIN JA: I agree with Miller JA.
(Page 6)
10 MILLER JA: This is an application for leave to appeal. It was ordered by Roberts-Smith JA on 12 February 2007 that the application for leave to appeal be heard together with the appeal.
11 The appellant was tried before Eaton DCJ and a jury in the District Court at Perth between 7 and 22 February 2005 on an indictment which contained 12 counts. They were:
"1 On 4 March 2002 at Wembley Downs [G] sexually penetrated [R] without her consent, by penetrating her vagina with his penis.
2 AND FURTHER THAT on 25 March 2002 at Wembley Downs [G] made a threat with intent to compel [R] to do an act she was lawfully entitled to abstain from doing.
3 AND FURTHER THAT on 25 March 2002 at Willagee [G] sexually penetrated [R] without her consent, by engaging in cunnilingus.
4 AND FURTHER THAT on 25 March 2002 at Willagee [G] sexually penetrated [R] without her consent, by penetrating her vagina with his penis.
5 AND FURTHER THAT on 25 March 2002 at Willagee [G] sexually penetrated [R] without her consent, by penetrating her vagina with his penis.
6 AND FURTHER THAT on 27 March 2002 at Perth [G] made a threat with intent to compel [R] to do an act she was lawfully entitled to abstain from doing.
7 AND FURTHER THAT on 27 March 2002 at Osborne Park [G] made a threat with intent to compel [R] to do an act she was lawfully entitled to abstain from doing.
8 AND FURTHER THAT on 27 March 2002 at Osborne Park [G] unlawfully and indecently assaulted [R], by placing her hand on his penis.
9 AND FURTHER THAT on 27 March 2002 at Osborne Park [G] sexually penetrated [R] without her consent, by penetrating her vagina with his penis.
10 AND FURTHER THAT on 27 March 2002 at Osborne Park [G] unlawfully and indecently assaulted [R], by rubbing his penis against her vagina.
11 AND FURTHER THAT on 27 March 2002 at Osborne Park [G] unlawfully and indecently assaulted [R], by placing her hand on her vagina.
(Page 7)
- 12 AND FURTHER THAT on 27 March 2002 at Osborne Park [G] sexually penetrated [R] without her consent, by penetrating her vagina with his penis."
12 The indictment reveals that the offences were alleged to have occurred between 4 and 27 March 2002 at different locations within the metropolitan area of Perth. Counts 1, 3, 4, 5, 8, 9, 10, 11 and 12 were counts which alleged sexual offences (Criminal Code, s 323 and s 325) . Counts 2, 6 and 7 alleged the offence of making a threat with intent to compel the complainant to do an act she was lawfully entitled to abstain from doing (Criminal Code s 388A(d)).
13 The appellant was acquitted on counts 1, 3, 4, 7 and 8 on the indictment. The acquittal on count 4 was an acquittal by direction. The jury was unable to agree in relation to counts 5 and 9 on the indictment. Convictions were recorded in relation to counts 2, 6, 10, 11 and 12.
Grounds of appeal
14 There is one ground of appeal. With particulars, it is as follows:
"Ground 1 - Inconsistent Verdicts
The verdicts of the jury on counts 10, 11 and 12 were unsafe and unsatisfactory, the not guilty and inconclusive verdicts returned in respect of certain other offences that occurred on or about 27 March 2002 being inconsistent with the guilty verdicts returned in respect of the same time and place:
Particulars
(a) The credibility of the Complainant was a central issue at trial.
(b) Unless the jury was satisfied beyond reasonable doubt of the truth of the Complainant's evidence there could be no conviction on any count in the Indictment.
(c) There was independent evidence (recent complaint) that corroborated Counts 9 and 12.
(d) The indecision of the jury on Count 9 indicates the jury were not satisfied of the truth of the testimony of the Complainant on that count.
(e) The verdicts of not guilty on Counts 7 and 8 respectively (threat with intent to compel and indecent assault), indicate the jury were not satisfied of the truth of the testimony of the Complainant on those counts.
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- (f) There being no additional factor which would have permitted the jury to reach different verdicts on the counts which resulted in convictions (Cts 10, 11 & 12), the verdicts of guilty were accordingly unsafe and should be set aside."
The evidence in the case
15 The prosecution alleged that on three separate occasions during March 2002, the appellant committed a number of sexual offences against the complainant. It also alleged the commission of three counts of making a threat with intent to compel the complainant to do an act she was lawfully entitled to abstain from doing. No appeal is brought against the appellant's conviction on two counts (counts 2 and 6) which alleged that offence.
16 The prosecution case was as follows: The complainant and the appellant met in February 2000 through an introduction agency. They began a relationship and from that relationship a child was born. He was nearly four years of age at the time of trial. By March 2002, the relationship between the complainant and the appellant had terminated - at least as far as the complainant was concerned.
17 During the relationship between the complainant and the appellant, the appellant acquired an interest in a residence in Wembley Downs where the complainant had lived with her children for several years. The first charge of "making a threat with intent" related to an accusation that the appellant attempted to compel the complainant to sell the house, that being an act she was lawfully entitled to abstain from doing. It was also alleged that on two occasions, the appellant had forced the complainant to engage in certain sexual acts in circumstances where the appellant threatened to expose the complainant by revealing a videotape of her in sexual relations with another person. The appellant alleged that he had caused the complainant to be followed by a private investigator and that the investigator had managed to tape her whilst working as a prostitute in the act of having sex with a client. In point of fact, the appellant did not have any such tape. He did, however, show the complainant a tape. This tape was one which had been made of the complainant and the appellant at a time when they were in a relationship. It showed them engaged in consensual sexual acts.
18 The appellant was alleged to have said that he would show the tape with her engaging in a sexual act as a prostitute to other persons. He said he would make stills from the tape and post them to the primary school at
(Page 9)
- which her children were pupils. He would also show the tape to her friends and let everybody know what she was doing.
19 The complainant had endeavoured to keep secret from relatives, friends and associates that she worked as a prostitute. She was terrified that the appellant had a tape and would display the contents of it to people close to her. The prosecution case was that she was coerced into doing some of the things she did because of the appellant's threats about the tape.
Count 1
20 The first count alleged an act of sexual penetration without consent at Wembley Downs on 4 March 2002. The complainant was then living in Wembley Downs with her children, but the appellant was not living there. He did, however, visit from time to time. As I have said, he had an interest in the property.
21 The prosecution case was that late on the evening of 4 March 2002, the appellant telephoned the complainant at home and said he was coming over. The complainant contended that she did not want him to come, but he "essentially threatened" to break the door down if she refused to let him come. It was alleged that the appellant came to the house and entered through the bedroom window of the complainant's bedroom. This was apparently something he had become accustomed to doing for some time. The reason for it was to avoid the complainant's children coming into contact with the appellant.
22 It was alleged that on the night of 4 March 2002, the appellant entered the complainant's bedroom, after telling her on the telephone that he wanted to have sex with her "like she did with her clients" and he wanted her to enjoy it.
23 The complainant said that she was forced to engage in sex with the appellant and that she had initially resisted, but then ceased resistance because she did not want her children to find out what was happening. It was alleged that the appellant penetrated the complainant's vagina with his penis.
24 The jury acquitted the appellant on this count. A likely explanation for the acquittal is that which is advanced by the respondent. Telephone records were tendered in evidence and they showed that the complainant had telephoned the appellant several times in the lead-up to the events
(Page 10)
- which were alleged to constitute count 1. There was no record of the appellant having telephoned the complainant.
25 The appellant testified at his trial and said in relation to count 1 that the complainant had telephoned him several times and asked him to come around to her house. He said that he had been at a barbecue. He said that when he entered the complainant's bedroom, he found her lying on the bed, apparently dozing. There were candles alight. Consensual sex occurred and it lasted for some time. He stayed probably for a couple of hours. At no time did he force the complainant to have sex with him.
26 A witness, "K", gave evidence that she had been given a lift home from the barbecue with the appellant and that she heard the telephone ring on a hands-free phone in the car. She said she heard the complainant say, "Where are you? I'm waiting for you" adding that she was wearing a nightie, there were candles lit and the appellant was to come through the bedroom window.
27 Given this evidence, it is not surprising that the verdict on this count was one of not guilty. It does not follow, however, that the jury positively disbelieved the testimony of the complainant. It means only that the jury was not satisfied beyond reasonable doubt that non-consensual sexual intercourse had occurred.
Count 2
28 On this count, the appellant was convicted. The evidence was that on 25 March 2002, he arrived at the address of the complainant and told her that she was to go to a REIWA office in Doubleview and sign an agreement to give him $20,000 out of the proceeds of sale of the house in Wembley Downs. It was alleged that the appellant threatened to release a videotape of the complainant engaged in a sexual act as a prostitute if she did not do what he ordered. Although the appellant sought to explain away his conduct, he basically agreed with the allegation that was made against him. Not surprisingly, he was convicted and he does not appeal.
29 The prosecution relied upon the facts which underlay count 2 on the indictment as being relevant to the question of consent on the counts of sexual assault. It was contended that the complainant engaged in sexual acts without consent because she was under the continuing influence of the threat that had been made by the appellant. The prosecution case was that the jury was entitled to accept evidence of the threat as corroboration of the complainant's testimony that she did not consent to any of the sexual acts alleged against the appellant in counts 10, 11 and 12.
(Page 11)
Counts 3 to 5
30 These counts were alleged to have occurred on 25 March 2002 in Willagee. The appellant was staying there with a friend.
31 Count 3 was an allegation that the appellant performed cunnilingus on the complainant without her consent in the downstairs section of a unit. Count 4 was an allegation that the appellant penetrated the complainant's vagina with his penis immediately thereafter. Count 5 was an allegation that the complainant had been ordered to go upstairs and there the appellant again penetrated her vagina with his penis.
32 The complainant failed to give any evidence which supported the allegation contained in count 4. It was therefore removed from consideration by the jury. The respondent contends that the complainant's failure to "come up to proof" in relation to count 4 was relevant to the jury's assessment of the complainant's reliability on counts 3 and 5.
33 The appellant admitted that the complainant had visited him in Willagee, but he denied there had been any sexual activity between them on the night in question.
34 It is contended by the respondent that the acquittal of the appellant on count 3 is explicable because of the failure of the complainant to lead any evidence about the allegation contained in count 4.
35 The respondent also contends that the failure of the jury to reach a verdict on count 5 is explicable. There was an alleged lie told by the appellant which the prosecution contended evidenced a consciousness of guilt on his part.
36 The complainant testified that whilst the appellant was having sexual intercourse with her upstairs, people had arrived home. He was alleged to have said to her, "This is fucking useless. You're useless", wrapped a towel around his waist and gone downstairs. When police told the appellant that the complainant had said that "D" had arrived home at a time when the appellant was having sex with the complainant and that the appellant had put a towel around his waist and come downstairs, the appellant replied that this was not true because he was wearing board shorts. He was pressed as to whether he was wearing a towel and he told the investigating police that this was not possible.
(Page 12)
37 D testified at the appellant's trial that on the evening of 25 March, he came home to 250 Stock Road, Willagee, at about 10 pm. He was accompanied by a girl named K. He went upstairs. He said:
"When you went upstairs, what did you see?---The door to - the spare room door was closed. I took my contacts out, went back downstairs, realised I had forgot my glasses and went back upstairs.
When you went back upstairs what did you see?---The door was open. [G] said good day to me. He had a towel on and I saw [R] in the background, standing directly behind him.
Was [G] wearing anything other than a towel?---No."
38 The respondent contends that because there was evidence that the appellant lied about this issue and that his lie was capable of constituting a consciousness of guilt on his part (guilt as to sexual penetration without consent), some jurors may have been satisfied beyond reasonable doubt that the lie constituted corroboration of the complainant's testimony, but others may not have been so satisfied. Thus, in relation to this count, the inability to reach a verdict is said to be explicable.
Counts 6, 7 and 8
39 Count 6 alleged that on 27 March 2002 at Perth the appellant made a threat to compel the complainant to do an act she was lawfully entitled to abstain from doing. He was convicted on this count.
40 The prosecution placed considerable emphasis upon this offence. That was because the matters contained within counts 7 to 12 of the indictment inclusive were all alleged to have taken place within a few hours of the commission of the offence. It is contended that the conviction on this count has particular relevance to the convictions on counts 10, 11 and 12.
41 The evidence about the events of 27 March 2002 began with the testimony of the complainant that she went to work as a prostitute that night at about 7.30 pm. She had told her children that she was working as a barmaid. The premises from which she worked were an office in Osborne Park. It was called "Penthouse Playmates". She was allocated a driver for the evening.
42 Some time before 9 pm, the complainant met with a client. It appears that her sexual services were finished with at 9 pm. She was then collected by her driver and whilst being driven back to Osborne Park, she received a telephone call from her daughter. She was hysterical because
(Page 13)
- the appellant had been ringing the complainant's home and had been there. The complainant said she was petrified because her children were at home alone and she was not there. She then received a call from the appellant. He, too, was described as hysterical.
43 The complainant had been heading towards Forrestfield where she was to meet her next client. She said that the appellant demanded that he meet her immediately and she agreed to do so because she was concerned about her children who were at home. She began to panic and cry and she was told by the appellant to give the telephone to her driver. This she did and the driver (whose name was "M") spoke to the appellant. The complainant then told M to take her to the location where the appellant wanted her to go.
44 The complainant was taken to a service station near Harborne Street, which was close to the office from which she worked. The driver actually missed the location and there were further calls from the appellant. The complainant jumped out of the vehicle and ran to the service station, where she saw the appellant's Toyota four-wheel drive vehicle. She jumped into the passenger seat. The appellant was angry and she described him as "sweating profusely and he stank". The complainant said that the appellant told her that she had ruined his life and she was going to pay. He said he was there to "destroy" her.
45 The complainant said that the appellant then drove to the area around the Harvey Norman store on Scarborough Beach Road. He drove around the back to a large, dark carpark. The complainant said that he told her again that he was going to destroy her "if [she] didn't do exactly what he told [her] to do". He allegedly said that he wanted the complainant to have sex with him and enjoy it "like [she] did with [her] clients". The complainant testified that she did not want to have sex with the appellant and said that the sight of him made her sick.
46 At the carpark, the appellant stopped the vehicle. The complainant said that the appellant then told her he wanted her to masturbate him. He put her hand on his penis which was exposed. The complainant said that she did this, but did not want to do so. She claimed that the appellant then said to her, "Suck it, bitch". She said that she resisted and that the appellant then calmed down. The complainant said that the appellant then saw a dress which the complainant had brought for her "escort" duties and this caused him to "hit the roof".
(Page 14)
47 The complainant said that the appellant made telephone calls to security people to try and get out of the Harvey Norman carpark because the gates were locked. They had been locked whilst the vehicle was in the carpark.
48 The complainant said that the appellant then got angry. He dragged her over the centre console of the vehicle to his side of the car, opened the door and then had intercourse with her. Her description of what happened was as follows:
"What happened?---He spat on his hand, wiped it on my vagina and he put his penis inside me and he fucked me very hard and it hurt, and then he turned me over and put my leg on the door and did it that way.
...
What did you do while he was doing that?---I was crying.
Did you want him to have sex with you?---Absolutely not.
Did you say anything to him?---Yeah.
What did you - - -?---I begged him to stop.
What did he say if anything?---'Shut up you slut. Fuck me like you do your clients. Would you rather have sex with a client than me?' and I said yes.
You have told us that he then turned you around and had sex with you again?---Yes.
Then what happened?---I think then what happened, he was masturbating his penis on the outer lips of my vagina.
...
Do you remember anything else that he did during this?---There was more sex, forced sex, but he pulled out and didn't ejaculate inside of me. I assumed that he ejaculated on the ground."
49 The complainant's evidence continued:
"Do you recall any other sexual acts that he performed at that time?---I think it was at that time.
Yes?---Because there were so many sexual acts that I was forced to do but I'm pretty sure that at that time also he masturbated his penis on my vagina, on the outside. He wanted me to play with myself while he was doing this.
(Page 15)
- Did he do anything to make you do that?---He put my hand on myself and kept his hand there and when he took it away, I took my hand away. He put it back.
What part of yourself did he put your hand on?---My vagina.
Did you want him to do that?---No.
Was there anything said while he was doing that?---Yes. He says things like, 'You love it. Fuck me, you bitch. Talk dirty to me.' Things like that.
Did you want to do any of those things?---No, of course not.
Now, after he had penetrated you with his penis, you had told us yesterday that he ejaculated?---I thought he ejaculated.
All right. He didn't ejaculate inside you or on any part of your body?---No. Not that I noticed, no. I assumed that he ejaculated on the ground outside the vehicle because in my past sexual things with him, he always ejaculated.
All right. After that act, were there any more sexual acts?---No.
What happened then?---Then he did this at other times throughout that night and in this instance as well but at that time also he tried again to ring people concerned with the security of Harvey Norman and how long - and who would come and open the gates and at what time and how he could get out of there, his car. While he was on the phone doing that - actually I don't think it was when he was doing that, it was when he was calling a taxi for me.
How did that come up?---I don't recall. I was too traumatised by that state (sic) and time and I don't remember lots of things and I don't remember how that came up but he called a taxi for me and while he was on the phone doing that, I jumped out of the car and I climbed over this gate that was so high, I did it like a pole vaulter. I don't know how I got over that fence so quick but I got over it pretty quick.
What were you wearing at that stage?---I don't recall the clothes I had on.
Where did you go once you vaulted that gate?---I ran and ran and ran. I remember - - -
In which direction?---Straight ahead at first, getting out of the darkness and then left on Scarborough Beach Road, just running."
50 The complainant's driver was M. He testified that on 27 March 2002, he took the complainant to a booking, which lasted a bit over an hour. He picked her up some time after 9 pm and was heading towards another job when the complainant's telephone started ringing frequently.
(Page 16)
- After a number of calls, the telephone was handed to M, with a request from the complainant that he tell the person on the telephone that he was her driver. M's evidence was:
"What did you do?---I grabbed the phone and I said, 'Hello' and this male voice in an aggressive tone said, 'You don't know who you're dealing with here, but if you take her to another job you will be in more shit than you know about and I want you to take her to a place that I'll tell her to be at.'
You say this was a male voice?---Male, yes.
Did you recognise the voice?---No.
And you say that the voice was an aggressive tone?---Extremely aggressive tone, I'd say.
How long were you listening to that voice?---The length of what I just told you, so only several seconds.
Did you speak to that person as in reply or say anything back?---After he said, 'I want you to take her to a place,' then I say okay, and I handed the phone back to [R]."
52 The appellant denied the truth of M's testimony, claiming that he did not wish to speak to the driver, but that the complainant had handed the telephone to him. He said that he simply asked the driver where they were and he was told that they were coming through the city and travelling towards Glendalough.
53 The appellant said that he had telephoned the complainant to tell her that he knew she was working and that she had told him she was returning to the office. The appellant said that he said he would meet the complainant there, but the complainant said she did not wish to meet him at the office and an agreement was reached to meet at the service station at the corner of Powis and Harborne Streets in Glendalough. This evidence was contrary to that which was given by M. Significantly, M was not cross-examined on the appellant's version.
54 The appellant testified that the complainant was dropped off near the service station and walked back towards him. She got into his vehicle. She told him that she was compelled to go to work as a prostitute and that she had been receiving a lot of "hassles from Tony from Devina's". The
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- appellant said that he started the car up to drive onto Harborne Street because he wanted to go and meet Tony and to tell him what the situation was. He wanted to find out why Tony was putting pressure on the complainant to do something she did not want to do.
55 The appellant said that he intended to take a route to the complainant's place of work which led him along the side of the Harvey Norman store in Scarborough Beach Road. It is unnecessary to go into the detail, but the appellant said that when he got into the Harvey Norman carpark, he could not see any gates that allowed him to pass through onto Hasler Drive. His version of what then occurred was very different from that of the complainant. He said that he did a U-turn and at that time the complainant asked him to stop. His evidence was:
"I did a U turn and at that time she reached over and grabbed hold of my arm and said, 'Just stop here, baby. Pull up here. I want to talk to you. Just stop right here,' and that's what I did. She didn't want me going back to confront Tony or talk to him about - or go there.
How do you know that?---Because she told me.
...
What took place there?---More discussion for about an hour and a half.
...
Was there any sexual activity between you and [R] at that location approximately 120 metres from the gate that we've seen pictures of?---No, there wasn't.
Eventually you left that location?---Yes.
I'll withdraw that. You heard the crown prosecutor open his case on the basis that there was sexual activity at that location and you heard [R] give evidence that there was sexual activity at that location?---Yes, I did.
What do you say to [R's] evidence in relation to sexual activity at that location?---Well, it's absolutely false. [R's] allegation of my having sex with her at the back of Harvey Norman is wrong, it's false and it's absolute fabrication. It did not happen."
56 It appears that the appellant's testimony was that the vehicle was actually behind "Impressions" and that the vehicle moved from that location. In any event, the testimony of the appellant was that after he had made some investigation about getting gates opened and had called for a taxi, he had returned to his vehicle, where the complainant made advances towards him. His testimony was:
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- " ... then I remembered my back going back. She'd put the seat back, then she was on top of me and she was rubbing herself on me, saying, you know, 'Come on, baby. Let's do this.'
Now, tell me in some detail about the way in which she was rubbing herself upon you?---Well, she pulled her dress right up and I didn't know it at the time until shortly after, but she'd removed her underwear, and she was rubbing herself on me.
What part of herself?---She was rubbing her vagina - - -
On what part of you?---On the front of my footy shorts. Onto my genitals.
Now, I would just ask you to pause here. What happened to those football shorts ultimately?---I don't know. Sorry, that - - -
Well, when was the last you saw them?---Well, I gave them to the search officer that was responsible for taking evidence into custody at the unit the following day at about 11 am.
Thank you. Anyway, could we now go back to what's occurring between you and [R]?---Yes. I wanted to call her a taxi. At that stage she was doing what she was doing and wanted to get it on with me. She was very persistent about that. The door was open. The door had been opened quite a lot. I had been in and out at times - - -
What door is that?---The car door. My driver's door.
Yes?---I remember telling her to get out of the car. She got out of the car and I got out of the car as well, then she had her skirt up and bent over towards me and she was telling me to, you know, 'Come on, baby, do it like this,' and I told her, '[R], I'm not ready. I can't do this.'
Was a taxi telephoned?---No, not at that stage. We were expecting the person around to unlock the gate, but he said he'd be a while and he was at the outer edge of his area. We didn't know how long that would be and that's why I said to her, 'Well, if we don't know how long it's going to be, if he could be half an hour or whatever, I'll ring you a taxi.'
Go on then?---And then I said, '[R], I can't do this. I'm not ready,' and with that she turned around and she got back up onto the seat and she had her left leg on the running board of the vehicle and her right leg out and she was masturbating herself with her right hand, and she asked me to rub my penis on the outside of her vagina which I did, and then she was telling me to stick it in, 'Stick it in,' which I did, and the whole thing was over in a matter of five minutes from the time she got out of the car until the time that I ejaculated."
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57 The appellant said that after he had had sex with the complainant, he called a taxi for her and the time at which he made the call was 12.27. He said that what then happened was as follows:
What happened then?---Well, then we stood there holding one another for a moment at the gate. I remember her touching my face and saying, 'That's going to be the last time,' and I said - she said, 'That's the last time. Okay, I don't want to have sex with you any more,' and I said, 'Yeah, that's great. I don't want to have sex with you any more either. It messes up- - - '
...
How did [R] get to the - we're at the point where you and she are embracing and looking into each other's eyes and it's emotional and then [R] ingrained you of - obviously at some time disengaged and she's left. Tell me how she left?---Well, she was holding onto her shoes and she had her bag over her shoulder and I just gave her a lift. She put her foot in my hands and gave her a lift to get up and she was over that gate in the same manner. It's a wall that's only about a metre or so high and she got up and around there and then she walked off in the direction of the service station. She walked up past the service station, across the forecourt of the service station, between the bowsers and the office.
You heard her evidence to the effect that she got over that gate quickly and ran?---No."
58 Although the jury found the appellant guilty of count 6, namely, making a threat with intent to compel the complainant to do an act she was lawfully entitled to abstain from doing, it found him not guilty of making a further threat (count 7) and not guilty of unlawful and indecent assault by placing the complainant's hand on his penis (count 8). The jury was unable to agree on a verdict in relation to the allegation of sexual penetration which constituted count 9, but convicted the appellant on each of counts 10, 11 and 12, which were respectively unlawful and indecent assault (by rubbing his penis against the complainant's vagina), unlawful and indecent assault (by placing the complainant's hand on her vagina) and sexual penetration without consent (by penetrating the complainant's vagina with his penis).
59 Counts 7 and 8 were alleged to have occurred in the Harvey Norman carpark. Count 7 was an allegation that the appellant had threatened the complainant with the intention of forcing her to submit to sexual activity. Count 8 alleged the indecent assault that I have mentioned. The appellant denied that he made any threats in the Harvey Norman carpark, or that there had been any sexual activity at that point. He actually referred to the carpark as the Impressions carpark.
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60 In relation to counts 7 and 8 there was therefore only the evidence of the complainant against that of the appellant. There was no corroborating evidence of any sort. The trial Judge told the jury that the appellant could only be convicted on the evidence of the complainant if they were satisfied beyond reasonable doubt of that testimony. The following extract from the learned trial Judge's summing up to the jury adequately proves the point:
"I am not suggesting that you will but if you found yourselves in a situation where you were unable to say who was telling the truth as to the crucial question of consent it would probably follow that you would be left with a reasonable doubt and an appropriate verdict would be not guilty because the state would not have discharged the burden that it carries. In order to convict on any count you must be satisfied that the state has proven all the elements of the charge to the requisite standard beyond reasonable doubt.
If you are satisfied that the state has proven all the elements of the charge under consideration then an appropriate verdict would be one of guilty. If you are not so satisfied then an appropriate verdict would be one of not guilty in respect of the charge under consideration. Even if you were to reject [G's] evidence and say, 'Well, I'm not prepared to accept what he has to say,' that would not be the end of the matter. You would still need to be satisfied on the whole of the evidence that the state has satisfied you with respect to all of the elements to that standard beyond reasonable doubt."
61 Counsel for the respondent contends that the verdicts of not guilty on counts 7 and 8 reflect the fact that the jury was unable to accept the complainant's uncorroborated testimony beyond reasonable doubt.
Counts 9, 10, 11 and 12
62 Count 9 alleged that the appellant had penetrated the complainant's vagina with his penis from behind whilst the complainant was bent over the driver's side of the vehicle. Count 10 alleged that he had rubbed his erect penis against the outer lips of the complainant's vagina whilst she was leaning against the driver's seat of the car. Count 11 alleged that the appellant had grabbed the complainant's hand and made her touch her vagina. Count 12 alleged that the appellant had penetrated the complainant's vagina with his penis whilst she was leaning against the car seat.
63 The respondent contends that the jury's inability to reach a verdict on count 9 can be understood by reason of the fact that the appellant denied that any act corresponding to count 9 ever took place.
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64 The verdicts of guilty on counts 10, 11 and 12 differ in that the appellant admitted that these acts took place, but said that they were consensual. The respondent submits that this difference underlies the reason for the verdicts. The respondent contends that the "live question" in relation to counts 10, 11 and 12 was consent, although there was an issue in relation to count 11, as to whether the appellant had actually forced the complainant to touch her vagina, or whether she had done it herself. In this respect, the appellant said:
"You didn't penetrate her from behind?---No, definitely not.
But you did rub your penis on her vagina?---Yes.
And her hand was on her vagina?---Yes, it was.
Not because you put it there but because she put it there herself. That's your evidence?---That's my evidence, yes.
And you penetrated her vagina with your penis?---Yes, that's correct.
Not by force but because she wanted you to. Correct?---She told me, 'Stick it in. Stick it in,' yes.
And you did?---I did."
65 The verdict in relation to count 11 was a majority verdict. Counsel for the respondent says that this verdict is explained by reason of the fact that there may have been an issue within the jury as to whether it was proven beyond reasonable doubt that the appellant had taken the complainant's hand and put it on her vagina, or whether she had done it herself. Clearly, one or more members of the jury thought it not proven beyond reasonable doubt that the appellant had done it.
The case for the appellant
66 The appellant contends that the verdicts of the jury in relation to counts 10, 11 and 12 are unsafe and unsatisfactory because of their inconsistency with earlier verdicts. The primary contention is that the different verdicts of the jury make it clear that there were cases in which the jury was not satisfied beyond reasonable doubt of the truth of the complainant's testimony. This being so, there was no additional factor which would have permitted the jury to reach different verdicts on counts 10, 11 and 12. It is for this reason that they are said to be unsafe.
67 I have already referred to the fact that the respondent's contention is that the verdicts are explicable. The respondent submits that it was not
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- necessary for the jury to be satisfied beyond reasonable doubt of the accuracy of the complainant's testimony on every count to be satisfied that counts 10, 11 and 12 were made out. It stresses that in relation to counts 10, 11 and 12, the appellant admitted that sexual acts occurred, but claimed that they were consensual. In the other instances, the acts were denied.
Authority on the issue of inconsistent verdicts
68 There is no general rule that in cases in which several sexual offences depend upon the testimony of the complainant, acquittal on one or more counts compels a conclusion that the jury must necessarily have regarded the complainant generally as an untruthful witness, or that her credibility was undermined in respect of the counts upon which the jury convicted. This is made clear in a statement of the general principles applicable to cases of this sort which was made in VIM v Western Australia [2005] WASCA 233; (2005) 31 WAR 1. The Court (Wheeler, Roberts-Smith JJA and Miller AJA) said at [188] et seq:
"188 The test for determining whether a verdict is unsafe or unsatisfactory is that formulated by the majority in M v The Queen (1994) 181 CLR 487 at 493-494. It is whether the court 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. It is not the function of the court to answer that question merely by an examination of the transcript of evidence and the exhibits; the appeal court must not disregard or discount the fact that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, nor the consideration that the jury has had the benefit of having seen and heard the witnesses, but on the contrary, must pay full regard to those considerations (Jones v The Queen (1997) 191 CLR 439 at 451).
189 The application of the test was explained by the majority in M v The Queen as follows (at 494):
'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. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. 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 jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.' (References omitted).
- 190 In Jones, convictions were set aside on the basis they were unsafe and unsatisfactory because, given the jury's finding of not guilty on one count, it was not open for them to be satisfied beyond reasonable doubt of the appellant's guilt on the other two counts. There were three counts of unlawful sexual intercourse with a female child. The complainant was a pupil at a gymnastic academy at which the accused was an instructor. The trial took place five years after the first alleged offence. The complainant was between 11 and 12 years of age at the relevant times. She made no allegation against the appellant until more than four years after the first alleged act. On her evidence, the acts of intercourse occurred when there was no-one present but she and the accused. The court held that the quality of her evidence on the second count was no higher than that upon the first and the third, so that once the jury found her evidence with respect to the second count lacked sufficient cogency to convict, the Crown's case on the first and third counts wore a different complexion. It meant that when her evidence could be set against other reliable evidence, it failed to carry sufficient conviction to reach the criminal standard of proof.
191 In MFA v The Queen (2002) 213 CLR 606, the High Court made it clear (at [89]) that the decision in Jones was fact specific and did not stand for any principle that in cases of complaints of a number of sexual offences, a jury must either accept or reject the entirety of the complainant's evidence.
192 There is no general rule that in cases in which several sexual offences depend upon the testimony of the complainant, acquittal on one or more counts compels a conclusion that the jury must necessarily have regarded the complainant generally as an untruthful witness or that her credibility was undermined in respect of the counts upon which they have convicted (R v PMT (2003) 8 VR 50 at [25]). Circumstances of the particular case may justify different verdicts, as was explained by Gaudron, Gummow and Kirby JJ, in MacKenzie v The Queen (1996) 190 CLR 348 at 367:
' … the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant
- sense. Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury.' (References omitted)."
Are the verdicts inconsistent or are they reconcilable in this case?
69 In my view, there is force in the submission that counts 10, 11 and 12 fell into a different category than the earlier counts involving sexual offences. This was because on counts 10, 11 and 12 the appellant admitted that sexual acts took place, but contended that they were consensual. There was a separate and distinct issue in relation to those counts and those alone. It was whether the complainant consented to what had occurred.
70 There was evidence upon which, in my view, the jury could have been satisfied beyond reasonable doubt that the complainant did not consent.
71 In the first place, the complainant had met with the appellant only shortly beforehand at the service station at the corner of Harborne and Powis Streets in circumstances which were described by M. His evidence confirmed what the complainant said about the attitude of the appellant on that evening. The appellant was convicted by the jury on count 6 on the indictment, namely, that at the service station, he made a threat with intent to compel the complainant to do an act she was lawfully entitled to abstain from doing.
72 The complainant's version of the events which occurred at the Harvey Norman carpark area included her testimony that after the sexual acts had occurred, the appellant had called a taxi for her. Whilst he was doing this, she climbed the gate and ran away.
73 The appellant contended that he called telephone number 12455 to get the telephone number of a taxi company, and it was whilst he was doing this that the complainant made sexual advances to him. He elaborated upon this in a record of interview which he made on video with investigating detectives on 28 March 2002. In it he said:
"Yeah, I rang - - I rang this control room number and they gave me - - oh, she asked for my mobile number and said, 'I'll get hold of the bloke that will ring you,' and [R] was lying here and grabbing hold of me; just - - just
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- touching me, and all that sort of stuff, and then she said, 'Baby, baby, stop that. Stop that.' I stopped the phone and she said, 'Stop that,' because I was going to ring her a taxi and she goes, 'No, no, don't do that. Don't do that,' and then she went down and started rubbing me, and the next minute she's got her dress up and then she's sitting up on the console and then she's around on the - - just sitting there, and I rang the 12455 number for her, the number of the taxi, and while I was talking to the 12455 people to get the 13 number of the taxi, [R] was rubbing herself on me. She'd taken her knickers off and then when I hung up that, I was going like this to her, 'Get out of the car.' Not saying anything, just going like that. Then I hung up and she just said, you know, 'Stop it now. Calm down. Come on,' and then she said, 'We can be nice - - we can do this. Let's do this. You like this,' and she - - she got out of the car and she lifted her skirt up and she was wiggling her bottom towards me and I left my shorts on and pulled my penis out the side, and I said, 'No, it's not going to work, [R],' and she turned around and sat back up on the seat and masturbated in front of me and then she said to me, 'Stick it in. Stick it in,' and I did and it was all over in about less than 5 minutes. "
74 The appellant said that it was only after the sexual acts had occurred that he rang the number he had been given for the taxi company. He said that as far as he knew the complainant had gone home by taxi. He claimed that he had seen her go over the fence and then walk off through the Mobil service station to the light at the front of the service station where she was picked up by the taxi about five minutes later.
75 The telephone records revealed, however, that the call to the information number 12455 and the call to the taxi company were made within one minute of each other; namely, at 12.27 am.
76 The taxi company records reveal that the call for a taxi was logged at 12.30 am and at 12.37 am the driver rang back to advise that the person to be collected was not present.
77 There was evidence from a console operator at the Mobil Quick service station at 479 Scarborough Beach Road, Osborne Park. This evidence was in the form of a statement that was read to the Court. He said:
"On the morning of Thursday, 28 March 2002, I was on duty at my workplace. It had been very quiet on this night. At about 12 am to 12.30 am I was doing my chores within the shop when a customer activated pump number 3 or 4.
I went to the console and authorised the pump. At the same time I saw a lady walk from the direction of the rear gate of Harvey Norman. She walked through the forecourt just past me next to the shop windows She
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- walked towards Scarborough Beach Road and appeared to walk in the direction of Scarborough Beach on Scarborough Beach Road. I noticed that the lady was quite upset. Her head was down and she was trying to wipe tears from her eyes.
The lady was about 30 to 35 years, skinny, Caucasian and about five foot five inches. I can't remember what she was wearing. After about three to four minutes I saw a Swan taxi come into the forecourt. He looked at me whilst he was sitting in his car. He turned his head towards the gates to the rear carpark of Harvey Norman looking for the customer but couldn't find anyone and left soon after. I continued my work."
78 The learned trial Judge told the jury that the console operator was unavailable to give evidence because he was overseas. His Honour pointed out that he was not present to be cross-examined by defence counsel and it might be the case that the jury would treat the statement with less weight than oral evidence from the witness.
79 It is relevant to note that the console operator said he saw the woman walk past the service station, whereas the complainant said that she ran.
80 There was evidence from the complainant's eldest daughter. She was almost 21 years of age and she resided with her mother in Wembley Downs. She said that she had collected her mother on Scarborough Beach Road "on the corner near where the cinemas are, Liege Street and Scarborough Beach Road". She said that it was between 1.30 am and 2 am. She asked how she seemed and she said:
"When you collected her, how did she seem?---She was very upset.
How could you tell that?---She was crying.
Can you remember what she was wearing?---Yes. She had a brown skirt on to her knees, a sleeved gold sparkly polo shirt with a turtle neck and she was carrying some black strappy shoes in her hand.
When you collected her did you speak to her?---Yes. I was upset though.
What were you upset about?---That she had gone to see [G].
What, if anything, did you say about that?---We had a conversation, basically back and forth, about how she - I was telling her that she should have never have gone. I didn't know at this point what had happened. I just assumed that she was very upset through verbal conversations that they had had.
When you say that you told her she shouldn't have gone, with what degree of force did you tell her?---Was this - you mean in the car?
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- Yes?---We were yelling at each other at this point. I was yelling at her.
So you were angry?---Yes.
And she was yelling back?---No, she was very quiet.
Do you remember what she said about why she had done what she had done?---No, I don't. I don't remember.
Once you picked her up, where did you go?---Went home.
What happened once you got home?---We got out of the car as, as I remember, we stood out the front for a little while, talking. I was pushing her for why she had gone, why would you do that, why would you go.
Did she tell you?---She told me that - she just kept saying that she had to, that she had to, she had to.
How long did that conversation last?---A couple of minutes.
What happened then?---Then she told me that she had been raped."
81 The complainant said that she had told her daughter in the car on the way home "He raped me again". In my opinion, nothing turns upon the fact that she said "again".
82 The evidence of her daughter was evidence of consistency of the account given by the complainant. Contrary to what is stated in the appellant's ground of appeal, it was not corroboration of the testimony of the complainant. This is made clear by Barwick CJ in Kilby v The Queen (1973) 129 CLR 460 at 466:
" ... evidence of a complaint at the earliest reasonable opportunity is exceptionally admitted only as evidence of consistency in the account given by the woman claiming to have been raped : that is to say, it is admitted as matter going to her credit (see Reg v Lillyman [1896] 2 QB 167, per Hawkins J at 170; Sparks v The Queen [1964] AC 964, at 979). Because the account with which the complaint is said to show consistency is an account of intercourse without consent, it has often been said that the evidence of the complaint is evidence negating consent. In my opinion, this manner of expressing the function of the evidence of proximate complaint is not correct : though, as it shows consistency in her account of rape, the fact of the complaint buttresses her evidence of no consent or, as it was said in Reg v Lillyman [1896] 2 QB 167, is inconsistent with consent. At times also it is said with technical inaccuracy that the evidence of such a complaint is corroborative of the woman's evidence of the rape. It is quite clearly not so corroborative (see R v Christie [1914] AC 545; Eade v The King (1924) 34 CLR 154), though it is so spoken of
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- in American literature (see Wigmore on Evidence, 3rd ed (1940), vol IV, p 219, para 1134 and p 227, para 1137; vol VI, p 173, para 1761)."
83 The evidence, both independent and from a number of the complainant's family, was capable of establishing that the complainant was in a distressed state when seen shortly after the events in the Harvey Norman carpark area. Evidence of the complainant's distress supported the consistency and credibility of her evidence that she had been sexually assaulted.
Conclusion
84 I am of the opinion that on all the evidence in the case, it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the accused on counts 10, 11 and 12. I do not consider that the verdicts of guilty on those counts were inconsistent with verdicts of not guilty in relation to other counts of sexual assault on the indictment.
85 There is no principle that a jury must accept or reject the entirety of a complainant's evidence when a number of sexual assault counts are alleged on indictment: MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 at [89]. Whether or not there is inconsistency in a particular case depends entirely upon the evidence in that case: R v Whitehead [2000] NSWCCA 400 at [18] – [20].
86 On the evidence in this case, there was a clear explanation for the jury concluding that the appellant was guilty on counts 10, 11 and 12. They were the counts upon which he admitted that sexual activity had taken place, but in relation to which he said it was consensual, not non-consensual.
87 The jury had to be satisfied beyond reasonable doubt of the evidence of the complainant that the acts were non-consensual. To assist them in that respect, they had evidence of the console operator (limited though it was) and evidence of the complainant's eldest daughter relating to the distressed condition of the complainant. That was evidence which went to the consistency of the complainant's account of what had occurred.
88 In all the circumstances, it was open to the jury, having seen and heard the witnesses and being the body entrusted with the primary responsibility of determining guilt or innocence, to be satisfied beyond reasonable doubt of the guilt of the accused on counts 10, 11 and 12.
89 I would refuse leave to appeal and dismiss the appeal.
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