Incandela v The Queen
[2023] ACTCA 41
•26 October 2023
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Incandela v The Queen |
Citation: | [2023] ACTCA 41 |
Hearing Date: | 28 February 2023 |
Decision Date: | 26 October 2023 |
Before: | Loukas-Karlsson, Baker and Charlesworth JJ |
Decision: | See [114] – [116]. |
Catchwords: | CRIMINAL LAW – APPEAL – unreasonable verdict – credibility of witnesses – lack of corroborating evidence – miscarriage of justice – whether photographs of bruising caused unfair prejudice – evidence not obtained by police – whether directions regarding definition of consent were misleading – whether alternative case should have been left to jury – whether there was a failure to capture key points in summing up – appeal dismissed. |
Legislation Cited: | Court Procedures Rules 2006 (ACT), r 5531 Crimes Act 1900 (ACT) ss 54(1), 67 Criminal Code Act1899 (Qld), s 632 Evidence Act 2011 (ACT), s 164, 165 Evidence Act 1995 (Cth), s 164 Evidence Act 1995 (NSW), s 164 Evidence Act 2008 (SA), s 34L(5) Evidence Act 2001 (Tas), s 164 Evidence Act 2008 (Vic), s 164 Evidence Act 1906 (WA), s 50 Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 80 Evidence (Uniform National Legislation) Act 2011 (NT), s 164 Supreme Court Act 1933 (ACT), s 37O |
Cases Cited: | BM v R [2017] NSWCCA 133 Chidiac v R (No 2) [2016] NSWCCA 120 Doney v The Queen [1990] HCA 51; 171 CLR 207 Edwards v The Queen [1993] HCA 63; 178 CLR 193 Ewen v R [2015] NSWCCA 117; 250 A Crim R 544 Garay v The Queen (No 3) [2023] ACTCA 2 Gillard v The Queen [2014] HCA 16; 308 ALR 190 Harper v R [2022] NSWCCA 211 JJB v R [2006] NSWCCA 126; 161 A Crim R 187 Kamali v R [2019] NSWCCA 186 Khamis v R [2018] NSWCCA 131 KLM v Western Australia [2009] WASCA 73 KN v The Queen [2019] ACTCA 37; 14 ACTLR 289 M v The Queen [1994] HCA 63; 181 CLR 487 Marshall v The King [2023] ACTCA 11 Pell v The Queen [2020] HCA 12; 268 CLR 123 R v AX [2005] QCA 422 R v Incandela (No 3) [2022] ACTSC 93 R v Incandela (No 4) [2022] ACTSC 139 R v Meyn (No 3) [2012] NSWSC 1467 R v Zammit [1999] NSWCCA 65; 107 A Crim R 489 Sever v R [2010] NSWCCA 135 TKWJ v The Queen [2002] HCA 46; 212 CLR 124 UQ v The Queen [2019] ACTCA 23; 14 ACTLR 172 Warne v The King [2023] ACTCA 1; 374 FLR 311 Wells v The Queen (No 2) [2010] VSCA 294 |
Texts Cited | Law Council of Australia, Law Council Policy Statement on Jury Directions, 14 May 2010 |
Parties: | Salvatore Incandela ( Appellant) Director of Public Prosecutions ( Respondent) |
Representation: | Counsel Self-represented ( Appellant) B Morrisroe ( Respondent) |
| Solicitors Self-represented ( Appellant) ACT Director of Public Prosecutions ( Respondent) | |
File Number: | ACTCA 25 of 2022 |
Decision under appeal: | Court/Tribunal: ACT Supreme Court Before: McCallum CJ Date of Decision: 29 March 2022 Case Title: R v Incandela Court File Number: SCC 64 of 2021 |
THE COURT:
Introduction
1․On 29 March 2022, Mr Salvatore Incandela (“the appellant”) was convicted by a jury of twelve, presided over by McCallum CJ (“the trial judge”), of one count of sexual intercourse without consent contrary to s 54(1) of the Crimes Act 1900 (ACT). The appellant’s bail was revoked on that day, and he has remained in custody since that time: R v Incandela (No 3) [2022] ACTSC 93. On 10 June 2022, the trial judge sentenced the appellant to a term of imprisonment for three years, with a non-parole period of two years: R v Incandela (No 4) [2022] ACTSC 139. The appellant will be eligible for parole on 22 March 2024.
2․By Notice of Appeal filed 22 June 2022, the appellant appealed against his conviction on a single ground of appeal, namely, that the jury’s guilty verdict is unsafe and unsatisfactory. During the hearing of the appeal, the appellant was granted leave to amend his Notice of Appeal to include an additional ground of appeal, namely, that a miscarriage of justice arose as a result of various specified matters, including alleged errors in the directions provided in relation to intoxication and consent.
3․The appellant’s Notice of Appeal was filed out of time. The Director of Public Prosecutions (“the Director”) did not oppose an extension of time, and, at the outset of the appeal hearing, the appellant was granted leave to appeal out of time.
4․The appellant explained that he is illiterate (he said that he reads at primary school level) and has dyslexia and Attention Deficit Hyperactivity Disorder. For this reason, the Court granted the appellant leave to be supported at the oral hearing by his sister, Ms Incandela, as a ‘McKenzie Friend’.
Legal principles
5․The appeal is brought pursuant to s 37O(2) of the Supreme Court Act 1933 (ACT), which provides as follows:
(1)The Court of Appeal on an appeal against conviction must—
(a)allow the appeal if it considers that—
(i) the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence; or
(ii) the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision of any question of law; or
(iii) on any other ground there was a miscarriage of justice; or
(b)dismiss the appeal.
6․The first ground of appeal alleges that the jury’s verdict was unreasonable.
7․The principles relating to unreasonable verdict grounds are well established. As this Court held in Marshall v The King [2023] ACTCA 11 at [145] – [146]:
… The question is whether an independent examination of the evidence establishes that it was open to the jury to be satisfied of the guilt of the appellant beyond reasonable doubt: M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 492-493, 494-495 (M v The Queen); Baden-Clay at [65]-[66]. In conducting that examination, regard must be had to the advantage the jury had in seeing and hearing the witnesses. Finding that a verdict is unreasonable requires that the appellate court be satisfied that the jury must, as opposed to might, have entertained a reasonable doubt as to the accused’s guilt: Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 at [113]; Pell v The Queen [2020] HCA 12; (2020) 94 ALJR 394 at [37]-[39].
The principles were recently summarised in Dansie v The Queen [2022] HCA 25; (2022) 96 ALJR 728 at [7]-[15], accepting that M v The Queen represents the correct approach. In applying that test, it was said that the court is to determine for itself whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the accused is guilty of the offence. In answering that question, the court must take into account that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and that it has had the benefit of seeing and hearing the witnesses. However, it is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by the appeal court that the court may conclude that no relevant miscarriage of justice has occurred…
8․As outlined above, the appellant was also granted leave to rely on a second ground of appeal, which alleges that a miscarriage of justice was occasioned as a result of various specified matters concerning the admission of evidence and the directions provided to the jury.
9․As discussed further below, the appellant was represented at trial by counsel. None of the matters now complained of in support of the second ground of appeal were the subject of complaint by the appellant’s trial counsel. In these circumstances, the appellant requires leave to appeal in relation to this ground under r 5531 of the Court Procedures Rules 2006 (ACT); Warne v The King [2023] ACTCA 1; 374 FLR 311 at [39]; UQ v The Queen [2019] ACTCA 23; 14 ACTLR 172 at [7]. Leave should be granted if any alleged misdirection or error in the admission of evidence “may have resulted in a miscarriage of justice”:KN v The Queen [2019] ACTCA 37; 14 ACTLR 289 at [15].
10․In considering whether a miscarriage of justice has resulted, it is important to bear in mind the “underlying features of the system of [adversarial] justice under which courts operate”: Kamali v R [2019] NSWCCA 186 at [32]. As the Director submitted, counsel, as the ‘party’s agent’, has ‘wide discretion’ as to how the matter is conducted, including witnesses to be called, questions to be asked of witnesses, evidence adduced and the lines of argument to be pursued or abandoned: see TKWJ v The Queen [2002] HCA 46; 212 CLR 124 at 147 [74]. Where there is a reasonable explanation justifying the conduct of counsel, it will be unlikely that a miscarriage has occurred: TKWJ at 133 [26] and 147 [74].
The evidence in the Crown Case
11․In November 2020, the complainant was using an online dating website called ‘Zoosk’. The complainant was matched with Michael Neale, another user on Zoosk, and the two began communicating through the website. The complainant subsequently gave her mobile number to Mr Neale, and they continued to communicate via text messages. Sometime later, they agreed to meet in person at a barbeque at Mr Neale’s house.
12․Shortly after midday on 29 November 2020, Mr Neale collected the complainant from her address. They travelled to Calwell Shopping Centre, where Mr Neale purchased alcohol. Mr Neale gave evidence that when he picked the complainant up, he was disappointed because he did not think that she looked like her profile on Zoosk. Mr Neale said that he was not attracted to the complainant.
13․The pair travelled back to Mr Neale’s home, and once there, began consuming alcohol. Throughout the afternoon, the complainant consumed about three vodka ‘cruisers’ and some wine. She did not eat any food. The complainant was also taking medication for depression and anxiety at this time.
14․At some point during the afternoon, Mr Neale received a phone call from the appellant. Mr Neale invited the appellant over to his house to join him and the complainant for a beer. Mr Neale told the appellant that he was not attracted to the complainant and that he did not want her to stay the night.
15․The appellant arrived at Mr Neale’s home. Mr Neale, the appellant and the complainant continued talking and drinking together for some time. At some point Mr Neale told the complainant that he was tired and going to bed, and did not want to pursue a relationship with her. The complainant was upset. Mr Neale and the appellant agreed that the appellant would drive the complainant home. Mr Neale told the complainant the appellant would drop her home. The complainant, not having money for transport home, accepted the lift from the appellant.
16․The appellant and the complainant left Mr Neale’s home. On the way to the complainant’s house, the appellant stopped the vehicle on the side of the road at a nature reserve in Spence.
17․The prosecution alleged that the appellant then got out of the vehicle with his pants around his knees and walked to the passenger side door. He bent the complainant over the passenger seat and pulled her pants down. The prosecution alleged that the appellant then had anal sexual intercourse with the complainant without her consent. This incident was the subject of the sole count on the indictment.
18․The complainant gave evidence that she asked the appellant to stop. She said that the intercourse was rough and that it caused her to bleed heavily. The complainant initially believed the blood came from her vagina, but a forensic examination later revealed that it was likely that the bleeding had come from the complainant’s anal passage. That examination recorded that the complainant had suffered two perianal haematomas, a perianal laceration, as well as bruising on various areas of her body.
19․Evidence was given in the trial from a resident who lived near the location in Spence where the appellant stopped the vehicle. That resident reported seeing a man get out of a vehicle with his pants around his knees and walk to the passenger side of the car. Several nearby residents also gave evidence of seeing a man at the passenger door of a vehicle, with his waist moving back and forth consistent with a thrusting motion. One of these residents recorded a video of these scene. That video was admitted into evidence in the trial.
20․The complainant said that the appellant then got back into the car and continued driving to the complainant’s home. The complainant gave evidence that, at some point the appellant stopped the car again, bent her over in the same position and proceeded to have anal sexual intercourse with her again. This alleged incident was not the subject of a count on the indictment.
21․The appellant dropped the complainant home. When she arrived home, the complainant’s daughter observed that the complainant was upset and that she had messy hair. The complainant’s daughter and the complainant travelled by bus to the Kippax shops shortly after the complainant arrived home.
22․The complainant first complained about the sexual assault to a friend on the evening of the incident, 28 November 2020, and to her daughter the day after, on 29 November 2020. The complainant reported the matter to the police on 1 December 2020.
23․The complainant’s daughter gave evidence that she saw bruising on the complainant when she returned home. The complainant was examined by a medical practitioner on 30 November 2020. In that examination, the complainant was observed to have several bruises on her breast, arms, side, buttock, and on her inner thighs. Expert medical evidence was given that this bruising was consistent with an assault.
24․The appellant was arrested on 17 December 2020 and participated in an interview with police. In this interview, the appellant initially denied knowing the complainant at all, having been at Mr Neale’s home that day, driving in or near Spence on the afternoon in question, having seen the location in Spence where the incident occurred, or that any women had been in his car recently, with two specified exceptions (neither of whom were the complainant). He maintained that he had only had sexual intercourse with one woman recently, who was not the complainant. On further questioning, the appellant admitted to police that he had been at Mr Neale’s place and that he drove the complainant home. He denied ever getting out of his car, except perhaps to urinate. The appellant said that he had oral sex with the complainant in his car, but maintained that it was consensual and occurred at her instigation. At trial, the prosecution relied on these denials made by the appellant as evidence of consciousness of guilt.
25․At trial, the prosecution case was that the complainant did not consent to sexual intercourse and that the appellant knew or was reckless as to the absence of consent. In the alternative, the prosecution contended that any apparent consent was negated by the complainant’s intoxication and that the appellant knew this to be so. The extent of the complainant’s intoxication at the time of the alleged incident was a live issue in the trial. As discussed further below, there was contradictory evidence on this issue. In particular, whilst it is clear that the complainant had consumed three to four pre-mixed alcoholic drinks and part of a glass of wine, various witnesses gave differing accounts of the extent of the complainant’s intoxication resulting from the consumption of this alcohol. In this respect, there was also evidence before the jury of CCTV footage from Mr Neale’s house and from the Kippax shops. The appellant’s trial counsel submitted to the jury that this evidence did not demonstrate to the requisite standard that the complainant was intoxicated. In his closing address, the prosecution submitted to the contrary.
First Ground of Appeal: Unreasonable verdict
The appellant’s submissions
26․In support of his contention that the jury’s verdict was unreasonable, the appellant made the following submissions:
(a)the evidence of bruising, including the medical report, did not corroborate the complainant’s evidence;
(b)there was no DNA evidence or other visual evidence to corroborate the complainant’s evidence of bleeding;
(c)the evidence, including the medical report and footage from witnesses, did not corroborate the complainant’s account of anal penetration;
(d)the complainant was not a credible witness;
(e)the complainant’s daughter and Mr Neale were not credible witnesses; and
(f)there was no evidence to support the alternative case put by the Crown that the complainant’s consent was negated due to intoxication.
27․A number of the appellant’s complaints under this ground of appeal are predicated on the assumption that a verdict of guilty in sexual assault proceedings will be unreasonable if the complainant’s account is not corroborated. It is convenient to address this assumption before turning to a consideration of the appellant’s individual complaints.
28․The requirement for corroboration of a complainant’s evidence in sexual assault cases has now been abolished by legislation in every Australian State and Territory: s 164 of the Evidence Act 2011 (ACT); s 164 of the Evidence Act 1995 (Cth); s 164 of the Evidence Act 1995 (NSW); s 164 of the Evidence (Uniform National Legislation) Act 2011 (NT); s 632 of the Criminal Code 1899 (Qld); s 34L(5) of the Evidence Act 2008 (SA); s 164 of the Evidence Act 2001 (Tas); s 164 of the Evidence Act 2008 (Vic); s 50 of the Evidence Act 1906 (WA).
29․In the ACT, the need for corroboration was emphatically rejected by the enactment of s 164 of the Evidence Act and s 80 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT), which respectively abolished the requirement for corroboration of complainant’s evidence and prohibited judges from directing juries that complainants are an unreliable class of witness. As McCallum CJ (with whom Collier J agreed) held in Garay v The Queen (No 3) [2023] ACTCA 2 at [92],
[t]he effect of these amendments was to recognise (if a statute was needed for this purpose) that the sworn account of a person who claims personally to have experienced a sexual assault is capable, without more, of proving the assault beyond reasonable doubt. The perception that such an account is not adequately reliable (or worse, inherently unreliable) and requires independent corroboration appears nevertheless to remain deeply embedded in the public psyche. To give effect to that perception in criminal proceedings for sexual assault at any level of the court hierarchy is wrong for several reasons. It perpetuates stereotypes and preconceptions in a legal system that claims impartiality as its hallmark. It subverts the legislative amendments to which I have referred. It puts complainants in sexual cases in a different class from the alleged victims of other kinds of offences and, in that way, suffers incoherence in the rule of law.
See similarly BM v R [2017] NSWCCA 133 at [43] – [45] (per Adamson J, with whom Basten JA agreed); Ewen v R [2015] NSWCCA 117; 250 A Crim R 544 at [11] (per Basten JA, Davies J agreeing); JJB v R [2006] NSWCCA 126; 161 A Crim R 187 at [2] – [8] (per Spigelman CJ, with whom Kirby and Howie JJ agreed); R v AX [2005] QCA 422 at [39] – [44] (per Atkinson J, with whom Williams and Jerrard JJ agreed).
30․In any event, as outlined further below, in the present case there was evidence given in the prosecution case which corroborated aspects of the complainant’s account, including the injuries to her anal passage, the evidence of residents near the location of the offending and the video of the appellant thrusting into the vehicle (noting that the appellant’s account was that he engaged in oral intercourse with the complainant, and that anal intercourse did not occur). It was also well open to the jury to use the lies told by the appellant as further evidence of his guilt of the offence charged.
The evidence of bruising
31․Thirty-five photographs of the complainant’s bruising were admitted into evidence.
32․Dr Virginia French conducted an examination of the complainant on 30 November 2020 and prepared a Medical Examination Report. Dr French was unavailable to give evidence at the trial, and a colleague, Dr Amanda Van Diemen, a specialist in forensic medicine at the Canberra Hospital, gave evidence about the opinions expressed in the report. In her evidence, Dr Van Diemen observed that the colour of the bruises was not noted in Dr French’s report, and that, as a result, the age of the bruises could not be determined. Dr Van Diemen was of the opinion that the bruises were consistent with an assaultive event including blunt force trauma. However, Dr Van Diemen acknowledged in cross-examination that some of the particular bruises observed, in particular to the complainant’s arm and left hip, did not appear to be directly explained by the complainant’s account.
33․The complainant’s daughter gave evidence that she did not see any bruises on the complainant before the alleged offence. She said that after the alleged offences, she observed that the complainant had bruises between her legs, on the side of her legs and on her hip.
34․The appellant submitted that:
(i)the photographs of the complainant’s bruises did not support the Crown case, as there was no evidence the bruises were sustained as a result of the alleged incident. For example, the appellant suggested that other possible causes of the bruising may have included the “side effects of medication and/or a poor diet that would render one easily being bruised”;
(ii)some of the bruising that was described by Dr Van Diemen did not “fit” the complainant’s account, in particular her evidence that the appellant did not strike her with his fists or any object; and
(iii)the evidence of the complainant’s daughter that she did not observe any bruises on the complainant prior to the offending did not advance the Crown case, because the Crown had not adduced any evidence of what the complainant had been wearing in the hours and days prior to the alleged incident. The appellant submitted that if the complainant had previously been wearing “long skirts, pants or a long sleeved top”, her daughter would not have seen any bruises.
35․Complaints (i) and (iii) are predicated on the assumption that the complainant’s account could not be accepted unless it was supported by corroborating evidence. For the reasons stated at paragraphs [28] – [29] above, that assumption must be rejected.
36․Contrary to the appellant’s contention in (ii), there was no inconsistency between the complainant’s account and Dr Van Diemen’s opinion which would shed doubt on the complainant’s credibility. As the trial judge observed in her summing up to the jury, Dr Van Diemen’s evidence was that some of the bruising was “unexplained”, not that it was “inconsistent” with the complainant’s account. As the complainant did not purport to have a complete recall of all of the events, the lack of a complete explanation for each and every bruise that was later observed on her was unsurprising.
37․Importantly, it is also to be noted that, in respect of her evidence that some of the injuries appeared to have been caused by “blunt force trauma”, Dr Van Diemen clarified in re-examination that blunt force trauma included “grabbing” a person.
38․In our view, the evidence of bruising does not support the appellant’s claim that the jury’s verdict was unreasonable.
No DNA or visual evidence of bleeding
39․The appellant next submitted that there was no visual or DNA evidence to support the complainant’s version of events. In particular, he noted that the Medical Examination Report recorded that the complainant had reported large amounts of blood, including on her hand, vagina and anus, and that Dr Van Diemen was of the opinion that the complainant’s version of events would lead to significant bleeding.
40․The appellant pointed out that the complainant was excluded as a DNA contributor for blood stains that were found in his vehicle and that the complainant’s daughter did not observe any blood on the complainant’s hands or elsewhere on her body when she returned home. The appellant submitted that it would have been difficult for the complainant to get back into the vehicle and return home without leaving traces of blood in the vehicle.
41․Contrary to the appellant’s submissions, these matters are not such as to shed doubt on the complainant’s account. In particular, as counsel for the Director submitted,
(a)the complainant did not have clothing on or near the bleeding at the time that the injury was inflicted, and the flow of blood would have been different at the time that the complainant put her clothing back on;
(b)as the complainant had on underwear and a skirt when she sat down again in the car, it is not necessarily the case that blood would have been left in the car. Rather, the complainant’s underpants and/or her dress may have acted as a barrier between her body and the seat;
(c)as the skirt was reddish-brown in colour, any blood stains on the skirt would not necessarily have been obvious, either on the CCTV footage of the Kippax shops or to the complainant’s daughter when the complainant returned home; and
(d)the testing of the car was performed sometime after the incident.
42․The appellant has not established that the lack of DNA or visual evidence of bleeding was such as to undermine the complainant’s credibility.
Lack of corroborating evidence regarding anal penetration
43․The appellant submitted that the evidence presented by the Crown in the way of witnesses and footage does not support the Crown’s contention that the complainant was penetrated anally. In particular, the appellant submitted that the Medical Examination Report of Dr French “failed to include adequate documentation of bruising and medical history pertaining to injuries” which distorted the evidence before the jury; and that the footage and evidence from residents in Spence did not provide evidence of anal penetration.
44․In relation to the Medical Examination Report, the appellant submitted that the anal and perianal examination “did not clarify if the abnormality presented was a haemorrhoid, the red bruise age was not determined, and the laceration was not confirmed if it was a result of opened bowels”. More broadly, he observed that Dr Van Diemen was unable to say with “absolute certainty” that the anal and perianal injuries were a result of penile/anal penetration. The appellant submitted that, given that Dr French did not explore the complainant’s exhibited “anal fiscus” in examination, the anal fiscus may have been the result of “constipation due to the stool that was passed before the Medical Examination Report, [or] a side effect of the [complainant’s] medication and/or a result of poor diet”. (For clarity, we note that the evidence was that the complainant went to the bathroom before the examination. There is no evidence that she passed a stool at that time.)
45․The appellant further contended that the footage and eyewitness evidence of residents of the location of the incident in Spence presented by the Crown did not support the case that the complainant was anally penetrated. He submitted that “at no time did any witness see an act of this nature, nor does the footage show any part of the [complainant’s] body or her body position outside of the vehicle, therefore the defence case of oral sex is plausible”.
46․The majority of the appellant’s claims under this particular are predicated on the misapprehension that corroboration was required for the complainant’s account to be accepted by the jury beyond reasonable doubt. This assumption must be rejected for the reasons stated at [28] – [29] above.
47․Further, a number of the matters raised by the appellant under this particular concern the assessment of factual questions, such as the cause of the complainant’s bruising and/or the anal fiscus. This evidence must be considered together with all of the evidence in the case, and must not be assessed in isolation. Considered in light of all of the evidence, it was well open to the jury to conclude that the evidence of bruising and/or the anal fiscus supported the complainant’s account.
The complainant’s credibility
48․The appellant submitted that there were a number of inconsistencies within the complainant’s evidence, namely:
(a)despite the complainant’s evidence that upon arriving home she changed out of her clothes into tracksuit pants and washed the other clothes, she was seen on CCTV Footage from the Kippax shops with her daughter wearing the same clothes that she wore to Mr Neale’s house;
(b)the complainant gave evidence that she deleted the messages she alleged were exchanged between her and Mr Neale on the evening of the incident, including a message in which she told Mr Neale that “his friend took advantage of me”;
(c)the complainant gave evidence to the police that she thanked Mr Neale for meeting her when he made her aware that he was not interested in having a relationship. This evidence was said to contradict the Crown case that the complainant was upset that Mr Neale was not interested in her;
(d)the complainant claimed there was significant bleeding during and after the assault, including blood all over her hands, however she had no visible signs of blood on her person or clothing; and
(e)although the complainant initially said she told her daughter about what had happened with the appellant once she returned home and before they left to go to Kippax, she subsequently stated to police that she “eventually” told her daughter at a later time. Her daughter gave evidence that the complainant told her about the assault the next day, on 29 November 2020.
49․The appellant further submitted that the complainant was not a credible witness and was unable to corroborate her claim, having regard to the following factors:
(a)that she gave evidence she was not intoxicated; however, she also made statements that she was drugged by the appellant;
(b)that she reported saying “stop it” multiple times during the assault, but was unable to re-enact how loud she said this during cross-examination before the jury, nor was there any corroboration of this claim. In particular, the appellant pointed out that none of the residents heard any noise coming from the vehicle, and no screaming can be heard on the footage taken by a neighbour;
(c)that the complainant claimed she required her daughter to hold her up by her shirt when they travelled to Kippax, but was later observed on CCTV walking unassisted in Kippax;
(d)Mr Neale reported that the complainant did not look like her profile picture, which the appellant submitted is evidence of deceptive behaviour; and
(e)although the complainant claimed that she would not have consented to intercourse on the side of the road with a stranger, she may have “agoraphilia” or be a “fraysexual” (referring to people who desire to have sex in open areas and with strangers, respectively).
50․The appellant asserted that the complainant initiated foreplay with him while he was driving and that she subsequently engaged in consensual oral sex with him. In this respect, the appellant submitted:
Whether it was out of spite because the defendant rejected her offer to come into her home or to provide his phone number, or if it was because she felt ashamed when Mr Neale confronted her about the sexual acts with the defendant, it wasn’t until after she had been confronted by Mr Neale and called the horrid names did the [complainant] commence the discussions with her daughter and friend regarding non-consensual sexual activity with the defendant.
51․The appellant also submitted that corroboration should be required in all sexual offences due to the risk of deliberately false charges being brought.
52․For the reasons stated at [28] – [29] above, the appellant’s submission that corroboration is required in respect of all allegations concerning sexual offending must be rejected.
53․The appellant’s contentions in respect of the absence of evidence of blood in the appellant’s car have already been addressed at paragraphs [39] – [42] above. The appellant’s complaints about the evidence concerning intoxication and being “drugged” are addressed at [84] and [100] – [106] below. It is unnecessary to address the matters raised in [49(d) and (e)] other than to record that both contentions should be rejected as entirely lacking in substance.
54․In respect of the remaining complaints, we note that:
(a)The complainant was giving evidence about an event which, if her account was accepted, was extremely traumatic and which occurred some 18 months prior to her evidence. In these circumstances, any discrepancies concerning when she changed out of her clothes or precisely when she made a complaint to her daughter were not such as to shed significant doubt on the credibility or the reliability of her account. As McHugh J observed in J in M v The Queen [1994] HCA 63; 181 CLR 487 at 534, "[i]t is the everyday experience of the courts that honest witnesses are frequently in error about the details of events": see also Khamis v R; Hussain v R [2018] NSWCCA 131 at [535], per Button J (in dissent, but not on this point) and at [47]-[51] (per Gleeson JA, Fullerton J agreeing).
(b)The fact that the complainant said that she thanked Mr Neale for meeting her and was aware they were not going to have a relationship is not in any way inconsistent with the evidence of Mr Neale and the complainant’s daughter that she was upset that Mr Neale did not offer to drive her home (particularly noting that Mr Neale also gave evidence suggesting that the complainant was happier at the time she left, after he gave her some wine).
(c)Nor does the complainant’s evidence that she deleted the message she allegedly sent to Mr Neale telling him “his friend took advantage of me” shed any doubt on her credibility. Both the complainant and Mr Neale gave evidence that an exchange occurred on the evening of the incident in which Mr Neale called the complainant a “slut” in reference to her having sexual relations with the appellant. The complainant stated in her Evidence in Chief Interview (EICI) that this exchange occurred by text, and that she told Mr Neale in response that his friend took advantage of her. Mr Neale gave evidence that the exchange occurred by phone and, noting he blocked the complainant’s phone number immediately after the phone call, he did not receive a response from her alleging that the appellant took advantage of her. Neither the evidence of Mr Neale nor the evidence of the complainant aligns precisely with the police analysis of the complainant’s phone, which identified three text messages and three phone calls (some of which were unanswered) from Mr Neale to the complainant that evening. In light of the passage of time, this is hardly surprising; and, particularly noting that the core facts of the complainant’s recollection aligned with the police evidence and the evidence of Mr Neale, does not undermine her credibility.
(d)The complainant told the police officers in her EICI that she told the appellant to stop “loud enough for him to hear”. Given the traumatic character of the events which she was describing, it is readily understandable that the complainant would not have been prepared to re-enact this part of the alleged sexual assault. In cross-examination, the complainant agreed that it was possible that she was screaming. However, the jury was to assess this evidence in light of the complainant’s EICI, in which she did not report having screamed at the accused to stop. It was open to the jury to conclude that the complainant’s memory was better at the time of her EICI, and that her agreement in cross-examination to having screamed had been affected by her memory of the trauma of the event.
(e)It is well recognised that people respond to sexual assaults in different ways. It cannot be said that a failure of a complainant to scream loudly is indicative of consent, or a belief in consent, in circumstances where the complainant gave unequivocal evidence that she told the accused to stop. As N Adams J (Bell CJ and Button J agreeing) held in Harper v R [2022] NSWCCA 211 at [192]: “the criminal law has moved on from a time when sexual assault trials were overlaid with antiquated stereotypes about how a victim is supposed to behave. The court is not assisted by reliance upon such arguments in a ground contending that a sexual assault conviction is unreasonable”.
55․In our view, none of the matters relied on by the appellant are such as to give rise to a doubt as to the complainant’s credibility.
Credibility of the complainant’s daughter
56․The appellant contended that at trial, the complainant’s daughter gave inconsistent evidence and introduced new evidence that had not previously been mentioned to police, including:
(a)alleging that the complainant told her the appellant said “he does this to a lot of women”, which the complainant did not give evidence of;
(b)stating she had to hold the complainant’s shirt while walking in Kippax shops, which was contradicted by the CCTV footage from Kippax;
(c)introducing “new evidence” in support of the complainant’s claim that she told the appellant to stop; and
(d)stating she did not speak to the complainant on the phone before she arrived home, while Exhibit L shows that she had a 29 second phone call with the complainant prior to her arriving home.
57․At the outset, it should be clarified that the evidence referred to in [56(a)] above was not evidence that the appellant said that he engages in sexual intercourse with a lot of women without their consent, but rather, referred to the appellant having told the complainant that he engaged in conduct which he referred to as “suck and fuck” with a lot of women. In their evidence, both the complainant’s daughter and the complainant referred to the appellant having spoken to the complainant about engaging in “suck and fuck” with other women. The complainant said in her EICI that this conversation occurred when they were at Mr Neale’s house. In cross-examination the complainant maintained that she was “definitely sure” that those words were spoken by the appellant, rather than by Mr Neale. There was no inconsistency between the complainant’s evidence and the evidence of her daughter on this issue. The evidence of the conversation, which formed part of the context of the allegations and explained some aspects of the relationship between the complainant and the appellant was not objected to, nor was it referred to in the closing addresses of either party. It was of little significance in the hearing.
58․The evidence referred to in [56(b)] was evidence of the complainant’s daughter that the complainant told her that she told the appellant “please no”. This evidence is consistent with the evidence that was given by the complainant. The appellant’s complaint appears to be that the complainant’s daughter did not mention these specific words in her EICI. The appellant’s trial counsel cross-examined the complainant’s daughter on this issue, and drew the matter to the jury’s attention during his closing as support for his contention that the complainant’s daughter’s evidence was unreliable. It was open to the jury to reject this submission. The complainant’s daughter was a witness who required assistance in dealing with communication difficulties (in particular, via the taking of frequent breaks). In these circumstances, her failure to mention those particular words in her EICI was a matter of little significance.
59․In any event, as counsel for the Director submitted, it was open to the jury, having had the benefit of seeing and hearing the complainant’s daughter’s evidence, to conclude that her evidence should be accepted either in whole or in part. In particular, it was open to the jury to reject the complainant’s daughter’s evidence that she was holding her mother up the whole time they were at the Kippax shops, but accept her evidence as to the substance of her mother's complaint. It is not clear that the complainant’s daughter’s evidence was inconsistent with Exhibit L. However, even in the event that the complainant’s daughter was mistaken about the timing of the telephone call with her mother, this was not a matter that adversely affected the credibility or reliability of the complaint’s account of the substance of what the complainant told her.
60․It must be borne in mind that the complainant’s daughter was giving evidence about matters that had occurred some 18 months before the trial. The discrepancies to which the appellant refers concern matters that were not essential to the Crown case, and which may be explained by the effluxion of time between the occurrence of the events and the time at which the evidence was given.
Credibility of Mr Neale
61․The appellant submitted that Mr Neale was not a credible witness as a result of the amount of alcohol he consumed and his fatigue from a long drive earlier that day. The appellant submitted that these factors affected Mr Neale’s memory, and in particular, his account of the alcohol that was purchased and his account that the complainant was intoxicated. The appellant further submitted that Mr Neale’s account of the complainant’s intoxication was contradicted by the evidence given by Senior Constable Shaun Cunningham that the complainant did not appear obviously intoxicated on his viewing of the CCTV footage of Mr Neale’s house.
62․As the Director submitted, Mr Neale’s credibility was not essential to the Crown case. Nevertheless, it was open to the jury to conclude that Mr Neale’s evidence as to the extent of the complainant’s intoxication was credible. Neither the amount of alcohol which Mr Neale had consumed, nor his alleged fatigue from driving, was such that the jury should necessarily have had a doubt about Mr Neale’s reliability concerning this issue.
63․Contrary to the appellant’s submissions, the evidence of Senior Constable Cunningham did not undermine Mr Neale’s credibility. Senior Constable Cunningham gave evidence that, on his viewing of the CCTV footage from Mr Neale’s house, he did not observe any “obvious” visual signs of intoxication, such as the complainant staggering. As the Director’s counsel observed, Mr Neale’s opportunity to observe the complainant was greatly superior to that of Senior Constable Cunningham. Senior Constable Cunningham made his observations “on the basis of motion activated CCTV [which] did not capture the whole interaction”. In contrast, Mr Neale was interacting with the complainant for many hours. As a result, Mr Neale had the opportunity to make more nuanced observations of the complainant’s level of intoxication.
Lack of evidence to support negation of consent due to intoxication
64․The appellant also submitted that there was no evidence presented to support the alternative Crown case that the complainant’s consent was negated due to intoxication. This submission appeared to be directed to both the unreasonable verdict ground of appeal and the ground of appeal that alleged that a miscarriage of justice had occurred on the basis that the prosecution’s alternative case of negated consent based on intoxication should not have been left to the jury.
65․In our view, the evidence demonstrated that the complainant did not consent to sexual intercourse, and that the appellant knew that the complainant did not consent. Further, for the reasons outlined at paragraphs [80] – [86] below, there was sufficient evidence for an alternative case of negated consent by reason of intoxication to also be left to the jury.
Conclusion
66․We have considered all of the evidence in the trial. In our view, the complainant’s account was compelling. It was well open to the jury to accept this evidence, and to find the offence proved beyond reasonable doubt. We do not consider that there are any inconsistencies in the complainant’s evidence, or between the complainant’s evidence and other evidence, which shed doubt on the complainant’s credibility or reliability; cf Pell v The Queen [2020] HCA 12; 268 CLR 123. We have carefully considered the appellant’s record of interview. There is no aspect of that interview which gives rise to any reasonable doubt as to his guilt. Indeed, having given ourselves a direction in accordance with Edwards v The Queen [1993] HCA 63; 178 CLR 193, we are satisfied that the lies told by the accused at the commencement of the record of interview provide further support for the Crown case against the accused.
67․Accordingly, the appellant’s first ground of appeal must be dismissed.
Second ground of appeal: miscarriage of justice
The appellant’s submissions
68․As noted above, the appellant was granted leave to rely on a further ground of appeal during the oral hearing of the appeal. Pursuant to that grant of leave, the appellant contended that:
(a)photographic evidence of the complainant’s bruising should not have been admitted;
(b)the prosecution should have obtained CCTV evidence from Action Bus of the complainant and her daughter travelling to Kippax shops after the incident;
(c)the trial judge erred in instructing the jury that they could find that the complainant’s consent was negated by her intoxication;
(d)the trial judge erred in the directions given about the legal definition of ‘intoxication’;
(e)the trial judge erred in failing to warn the jury about the complainant’s evidence that she was “drugged”;
(f)defence counsel failed to object to evidence and directions by the trial judge; and
(g)the trial judge’s summing up was unbalanced.
69․These submissions are separately addressed below.
Whether the evidence of bruising should have been admitted
70․The appellant submitted that the 35 photographs of the complainant’s bruising that were admitted into evidence were distorted and did not accurately represent the bruises sustained by the complainant. The appellant submitted that these images unfairly prejudiced his case.
71․In particular, the appellant submitted these photographs elicited a powerful and “purely emotional” reaction from the jurors, resulting in unfair prejudice. The appellant contended that the photographs played on the jurors’ “emotions and their own experiences” and that “the emotion that this particular evidence provoked may have been so strong that jurors could not fairly evaluate all of the evidence”.
72․There was no objection to the admission of the photographs by the appellant’s counsel at trial. Accordingly, the appellant requires leave under r 5531 of the Court Procedures Rules to rely on this particular of the second ground of appeal.
73․We do not consider that the admission of the photographs occasioned a miscarriage of justice. The photographs were clearly relevant to the prosecution’s case, as evidence going both to the specific acts which occurred and to the force used. The medical expert reiterated in both her examination in chief and in her cross-examination that she did not attempt to date the bruises because of the risk of distortion in the colours of the photos. The risk of distortion in colour was thus made clear to the jury. The photographs do not otherwise appear to be distorted, nor was any complaint made about the risk of distortion at trial.
74․The “sensitivity of jurors to photographs can too easily be overstated”: R v Zammit [1999] NSWCCA 65; 107 A Crim R 489 at [156]. The photographs depicted bruises and were “certainly not of the more gruesome kind that one sometimes sees”: R v Meyn (No 3) [2012] NSWSC 1467 at [6]. In our view, there was no real risk of the photographs provoking an emotional response so as to lead the jury to make a decision on an improper basis.
75․The appellant has not established that the admission of the photographs resulted in a miscarriage of justice.
The absence of CCTV from Action Buses
76․The appellant submitted that there was no corroborating evidence obtained from Action Buses to prove or disprove the evidence of the complainant and her daughter that the complainant had to be held up by her daughter during their trip to the Kippax shops. We understand the appellant to contend that this CCTV footage should have been requested and tendered in the trial and/or that a direction should have been given to the jury in respect of the absence of this evidence.
77․The appellant’s trial counsel did not seek any direction concerning the absence of this evidence, nor is there any indication that the appellant sought this evidence from the prosecution during the trial or at any time prior to the trial.
78․Although the failure of an accused to request the Crown call a material witness has been held in New South Wales to not fall within the equivalent provision to r 5531 of the Court Procedures Rules, the failure of an accused to request the Crown to call evidence is nonetheless a “significant factor tending to negate any miscarriage of justice”: see Chidiac v R (No 2) [2016] NSWCCA 120 at [225] – [226].
79․The jury had the benefit of the CCTV footage from Kippax shops, which provided some, albeit not unequivocal, support for the appellant’s contention that the complainant was not intoxicated. The absence of any CCTV evidence from Action Buses was neutral, as the jury could neither rely on it for corroboration nor to doubt the complainant’s credibility. We do not consider that the absence of CCTV footage from Action Buses, or the failure of the trial judge to direct the jury in that respect, has caused a miscarriage of justice.
Whether a case of negated consent based on intoxication should have been left to the jury
80․The appellant submitted there was no evidence to support the Crown’s alternative case that any consent given by the complainant was negated by her intoxication.
81․The appellant submitted that the complainant maintained that “she was not drunk on the day in question” and emphasised that her medication did not affect her alcohol consumption. In this respect, the appellant noted that:
(a)the complainant stated multiple times in her EICI and cross-examination that she was not drunk;
(b)the complainant stated in cross-examination that alcohol does not affect her medication;
(c)Senior Constable Cunningham did not observe obvious signs of intoxication in the CCTV footage of the complainant at Mr Neale’s place;
(d)it is “corroborated evidence” that the complainant consumed three pineapple vodka ‘cruisers’ and less than half a glass of wine;
(e)the complainant was seen on CCTV footage walking unassisted after the events; and
(f)no evidence was presented to the jury of the complainant’s blood alcohol concentration levels or the alcoholic content of the drinks she consumed, which would have indicated whether she had the capacity to consent.
82․The appellant submitted that the prosecution used the evidence of the complainant’s daughter and Mr Neale (namely, that the complainant was intoxicated) to support the alternative case of consent being negated through intoxication. The appellant submitted that this evidence was favoured over the evidence presented by the complainant herself. The appellant also reiterated that Mr Neale’s recollection of the complainant’s intoxication would have been affected by his own alcohol consumption and fatigue that day, and that his evidence should not be preferred over the evidence of the complainant and Senior Constable Cunningham.
83․It is well established that “if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision”: Doney v The Queen [1990] HCA 51; 171 CLR 207 at 214. This principle also applies where a matter is raised as an alternative basis for guilt: see, for example, Sever v R [2010] NSWCCA 135 at [43] – [46] and Wells v The Queen (No 2) [2010] VSCA 294 at [22].
84․In the present case, there was evidence adduced in the prosecution case which was capable of establishing that any consent by the complainant was negated due to intoxication. In particular,
(a)Mr Neale and the complainant’s daughter each described the complainant as intoxicated. For example, Mr Neale stated “I felt she was a little bit intoxicated from what she'd drank” and “I think once she drank that glass of wine … it sort of hit her … as in made her a bit more intoxicated than what she already was”. The complainant’s daughter stated “…I had to hold onto her by her shirt because she wasn't very stable … something not right was happening with her … she was very like shaky and like her eyes, like, were – like, rolling and she was like swaying”;
(b)the complainant texted her friend the evening of the incident saying "He took advantage of me as I was drunk";
(c)the complainant described feeling woozy when leaving Mr Neale’s house;
(d)in her EICI, the complainant recalled throwing up during the second instance of penetration;
(e)CCTV evidence reviewed by the police showed the complainant consuming three vodka ‘cruisers’ along with half a glass of wine; and
(f)the appellant’s trial counsel adduced expert medical evidence that the effects of the prescription medication the complainant was taking may be “exaggerated” and “increase … drowsiness” when combined with alcohol.
85․As the appellant’s counsel acknowledged to the jury in closing submissions, “the evidence of the complainant and [the complainant’s daughter] and Mr Neale would suggest a conclusion of intoxication”.
86․In view of the above evidence, it was open to the trial judge to leave an alternative case to the jury that any consent was negated by the complainant’s intoxication. It matters not that there was evidence which may have founded a submission that the complainant was not intoxicated or not sufficiently intoxicated to negate any apparent consent. This factual assessment was a question for the jury, and not for the trial judge, to determine. In any event, as noted at [63] above, the fact that Senior Constable Cunningham did not observe overt signs of intoxication on the CCTV footage of Mr Neale’s house was not necessarily inconsistent with the evidence of Mr Neale that the complainant appeared to be intoxicated.
87․It follows that the appellant has not demonstrated that a miscarriage of justice has occurred due to the trial judge leaving negated consent by reason of intoxication as an alternative for the jury’s consideration.
The correctness of the trial judge’s directions concerning intoxication
88․The appellant submitted that the alternative Crown case that consent was negated by intoxication was taken into “heavy” consideration by the jury, as evidenced by the jury note received on this issue. The appellant submitted the trial judge’s response to this note was misleading and that it led to a miscarriage of justice.
89․The jury question was:
Is there a legal definition of “intoxicated” as it relates to consent? For example, a specific level like drink driving (0.05 blood alcohol concentration)?
90․In response to this question, the trial judge instructed the jury as follows:
The short answer is no, there is not a legal definition but the question is a good one, if I may say so, and I thought it might help you in understanding the answer if I reiterate what I said about the situation if you get to the path of considering the Crown 's alternative case ...
…In other words, was the effect of the drunkenness and the effect of the drugs what caused her to give consent, if you think it is reasonably possible that she gave consent to the act of anal penetration ... are you satisfied to the extent that she consented that was caused by the effect of her drunkenness.
You also have to consider the position of the accused and you will recall that I directed you that if you are considering this alternative Crown case based on intoxication negating any consent you would have to be satisfied that the accused knew that she was so drunk that that is what caused her to consent. So you need to consider the issue of consent being negated by drunkenness both from the point of view of the complainant and from the point of view of the knowledge of the accused, did he know that she was so drunk that that was what caused her to give any consent you think she might have given to anal penetration?
91․The appellant submitted that the trial judge’s response that “the short answer is no, there is not a legal definition” is “untrue”, because there is a “clear” definition in s 67 of the Crimes Act 1900 (ACT) that “intoxication means intoxication because of the consumption of alcohol, a drug or any other substance”.
92․The appellant submitted that the trial judge’s further explanation of the legal concept of intoxication as it relates to consent “misled the jury… by reiterating consent was negated because it was caused by the effect on her of alcohol and the prescription drugs that the [complainant] had taken”.
93․The appellant submitted that there was no expert evidence regarding the effects of alcohol and the medication consumed by the complainant. (As noted at [84(f)] above, there was evidence that the complainant’s medication could exaggerate the effects of intoxication. However, there was no evidence of the complainant’s blood alcohol concentration at the time of the alleged events.)
94․The appellant submitted that it was problematic that the trial judge in her explanation referred to “a gradient of drunk and so drunk to describe the [complainant]” and that the trial judge did not direct the jury that it was possible the complainant was not “drunk” at all, as the complainant herself said. In this respect, the appellant noted that in the sentencing judgment, the trial judge noted at [19]:
However, at the proceedings on sentence, Counsel for the appellant, Mr Jackson, reminded me of evidence given during the trial by Senior Constable Cunningham that the [complainant] did not show signs of intoxication, as well as CCTV footage which contradicted the [complainant’s] daughter’s account that she required physical support while the two were at a shopping centre not long after the assault.
95․Finally, the appellant also submitted that the trial judge should have directed the jury that the appellant bore no onus of proof in respect of the prosecution’s alternative case.
96․We do not accept that there was any error in the trial judge’s directions. The trial judge correctly directed the jury that consent is negated if it is caused by the effect of intoxicating liquor or a drug. Her Honour summarised the conflicting evidence of intoxication, and directed the jury to carefully consider that evidence. Her Honour correctly instructed the jury that if they were satisfied that any consent was negated due to intoxication, they could only find the accused guilty on that alternative case if they were satisfied beyond reasonable doubt that the accused knew (as opposed to merely being reckless) that the complainant’s consent was so negated: see Gillard v The Queen [2014] HCA 16; 308 ALR 190.
97․Viewed as a whole, it is clear that the question asked by the jury concerned whether, at law, there was a specific ‘level’ of intoxication, such as a blood alcohol concentration, that was required before a lack of consent could be inferred. In answer to this question, the trial judge correctly directed the jury that there was not. Having so directed the jury, the trial judge then appropriately reminded the jury of the elements of the offence and the relevance of intoxication to each of those elements. In doing so, her Honour correctly emphasised the standard and onus of proof. It was not necessary for her Honour to again remind the jury of the competing evidence, or the competing submissions of counsel in respect of this issue at this time.
98․Prior to answering the jury’s question, the trial judge raised her proposed answer with both parties. After brief discussion, the appellant’s counsel responded “I am happy with that” in relation to her Honour’s proposed answer. In these circumstances, the appellant requires leave to raise this particular of the second ground of appeal.
99․We do not consider that any miscarriage of justice has resulted from the directions given. The directions given were correct.
Failure to issue warning as to complainant being “drugged”
100․The appellant noted that the complainant gave evidence on three separate occasions that she was “drugged” by the appellant. The appellant submitted there was no evidence substantiating this complaint, and noted that the prosecution did not contend at trial that there was any evidence that the complainant was “drugged”.
101․The appellant cited the Law Council of Australia’s Law Council Policy Statement on Jury Directions (14 May 2010), which states that if Crown evidence is of a type that may be unreliable and the jury may not appreciate the potential unreliability, an appropriate warning should be given. Of course, s 165 of the Evidence Act provides to similar effect.
102․The appellant submitted that such a warning would have been appropriate and there was no reason why an unfounded allegation that was not pursued by the prosecution “should not heed warning to the Jury”.
103․Counsel for the Director agreed that it was no part of the Crown case that the complainant had been “drugged”. She accepted that the evidence did not support that the appellant, or anyone, had drugged the complainant. The Director also agreed that the complainant, in her pre-recorded evidence, said that she had been “drugged” on three occasions.
104․In oral submissions, counsel for the Director also fairly acknowledged that trial counsel for the appellant had suggested that it may be appropriate for the trial judge to remind the jury that it was no part of the Crown case that the appellant had drugged the complainant. In the ensuing discussion, the trial judge indicated that she was prepared to direct the jury that no toxicology evidence had been adduced. The appellant’s trial counsel did not seek this direction at that time, nor was any such direction sought during the course of, or at the conclusion of, the summing up.
105․In his evidence in chief, Senior Constable Cunningham confirmed that he had watched the CCTV footage from Mr Neale’s house, and he had not seen any person put anything into the complainant’s drink whilst she was at Mr Neale’s house. The Crown case on negated consent was concerned solely with the alcohol consumed by the complainant and its interaction with the medication that she was prescribed. Any direction given by the trial judge would simply have noted what was obvious in all of the circumstances, namely, that it was no part of the Crown case that the appellant had drugged the complainant.
106․The appellant has not demonstrated that a miscarriage of justice arose from the absence of a warning in respect of the complainant’s evidence that she thought that she had been drugged.
Failure of defence counsel to object
107․In addition to the above allegations, the appellant also contended that a miscarriage of justice arose from the failure of his trial counsel to object to evidence and to the directions given by the trial judge.
108․This complaint appeared to relate primarily to the evidence about the complainant’s bruising and the directions given by the trial judge concerning intoxication. For the reasons outlined above, the evidence of the complainant’s bruising was clearly admissible, and there was no error in the instructions which the trial judge gave the jury concerning intoxication.
Summing Up: failure to capture key points of defence case
109․Finally, the appellant submitted that there was a miscarriage of justice due to the trial judge’s failure to fairly and accurately sum up, submitting that she did not include evidence which was critical to the defence case. The appellant says this critical evidence is that:
(a)the complainant did not show signs of intoxication according to Senior Constable Cunningham; and
(b)the Kippax CCTV footage contradicted the complainant’s daughter’s account.
110․Both assertions must be rejected. The trial judge referred the jury to the “conflicting evidence” of intoxication, and expressly reminded the jury of the accused’s counsel’s submissions concerning “the Kippax shops and the fact that whereas the complainant and her daughter both said she had to be held up, the footage shows that she wasn't being held up. That's quite clear.”
111․The appellant’s counsel’s closing had concluded immediately before the summing up, on the same day. Counsel for the accused had relevantly put to the jury:
This is probably a good point to determine the – to discuss the issue of intoxication. The evidence points in both directions, I have to accept that and it is a very difficult matter for you to assess and it may simply that you cannot find the complainant was intoxicated or can't come to any form of conclusion on that issue. I accept that the evidence of the complainant and [the complainant’s daughter] and Mr Neale would suggest a conclusion of intoxication, words such as groggy, woozy and intoxicated are used.
However, contrast that with the Kippax footage, it is open to conclude there is no signs of intoxication and the evidence of the officer in charge, in terms of his review of that video from Mr Neale's house and his evidence was there were no obvious signs of intoxication. I suggest it will be incredibly difficult for my client to have known that the complainant was intoxicated when even an experienced police officer, a leading senior constable, could not identify any obvious signs of intoxication.
Those were his words. He said 'obvious' and that is how you should assess his evidence. It may simply be that the issue of intoxication, based upon the evidence, can't be found given the evidence. Consider that with the CCTV footage and all the other witnesses' evidence.
112․The appellant’s counsel at trial did not request that the trial judge remind the jury of any further matters at the conclusion of the summing up.
113․The appellant’s complaints about the fairness of the summing up must be rejected. Accordingly, the appellant has not demonstrated that a miscarriage of justice has arisen from the trial judge’s summing up.
Orders
114․For the reasons outlined at [26] – [67] above, the appellant has not established that the jury’s verdict was unreasonable. Accordingly, ground 1 is dismissed.
115․For the reasons outlined at [68] – [113] above, the appellant has not established that a miscarriage of justice has arisen as a result of any of the matters raised in ground 2. As noted above, a number of the complaints raised in support of this ground concern matters that fall within rule 5531 of the Court Procedures Rules. Insofar as rule 5531 applies, we do not grant leave to the appellant to rely on those particulars. This ground of appeal is otherwise dismissed.
116․Accordingly, the appeal is dismissed.
| I certify that the preceding one hundred and sixteen [116] numbered paragraphs are a true copy of the Reasons for Judgment of the Court Associate: A McCook Date: 26 October 2023 |
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