Kavanagh v The Queen
[2021] VSCA 193
•2 July 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0116
| SHANE JAMES KAVANAGH | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL P, McLEISH and T FORREST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 8 June 2021 |
| DATE OF JUDGMENT: | 2 July 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 193 |
| JUDGMENT APPEALED FROM: | [2020] VCC 651 (Judge Gaynor) |
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CRIMINAL LAW – Appeal – Conviction – Applicant convicted on one of four charges of rape – Single complainant – Alleged offending occurred at same place over short period – Immediate complaint – Each charge dependent on evidence of complainant – Whether guilty verdict unreasonable – Whether inconsistent verdicts – MacKenzie v The Queen (1996) 190 CLR 348, applied – R v Markuleski (2001) 52 NSWLR 82, considered – Whether acquittals indicated jury doubted complainant’s credibility – Open to jury to accept complainant as witness of credit but entertain doubts on charges for which acquittals entered – Corroborating evidence and complaint evidence stronger for charge for which conviction entered – No inconsistency – Appeal dismissed – Criminal Procedure Act 2009 s 276(1)(a).
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr L Richter | Matthew White & Associates |
| For the Respondent | Ms E Ruddle SC | Ms A Hogan, Solicitor for Public Prosecutions |
MAXWELL P
McLEISH JA
T FORREST JA:
On 6 December 2019, the applicant was found guilty by a jury in the County Court of one charge of rape and one charge of intentionally causing injury.[1] He was acquitted of three other charges of rape. The applicant had pleaded guilty to an alternative charge of recklessly causing injury.
[1]DPP v Kavanagh [2020] VCC 651 (‘Sentencing Remarks’).
The applicant seeks leave to appeal against conviction on the rape charge on the single ground that, by reason of his acquittal on the three other charges of rape, the verdict on the rape charge of which he was convicted was unreasonable and cannot be supported.
For the reasons that follow, leave to appeal should be granted but the appeal should be dismissed.
Overview of charges
It is convenient to set out an overview of the events that the prosecution alleged happened before turning to the evidence in greater detail.
On 25 April 2018, the applicant and the complainant, whom it is convenient to call LD, began communicating on the dating application, Tinder. That day, the applicant went to LD’s house, where they kissed and cuddled and watched Netflix. The applicant met LD’s father, with whom she lived as his carer. The following day, the applicant again went to the house, where they engaged in consensual sex. After this, the applicant and LD began to speak to and see each other regularly, with the applicant staying overnight at her house on a number of occasions.
The alleged offences occurred on the night of 17 May 2018 and in the early hours of 18 May 2018. The prosecution case was that the applicant raped LD in her bedroom on four occasions.
It was first alleged that, at around 11:30 pm, the applicant penetrated LD’s vagina with his penis without her consent (charge 1 — rape). It was alleged that the applicant shortly afterwards penetrated her anus without her consent (charge 2 — rape) and ejaculated inside her.
The third charge arose from events said to have occurred after the applicant had returned after a period in an adjacent bathroom. It was alleged that the applicant told LD that he was ‘horny again’ and forcibly took off her clothes, seriously damaging a singlet and causing a cut under her arm. It was alleged that the applicant then penetrated LD’s vagina with his penis without her consent (charge 3 — rape) and again ejaculated inside her.
Finally, it was alleged that about 10 or 15 minutes later, the applicant again said that ‘he was horny again’ and penetrated LD’s vagina with his penis without her consent (charge 4 — rape) but lost his erection and desisted.
To varying degrees, these acts were alleged to have been accompanied by physical and verbal protestations on the part of LD and acts of violence on the part of the applicant. Those acts including slapping LD’s face and buttocks, and placing pressure on her throat, to the point that she blacked out. As will appear, there was evidence that, to some degree, the applicant and LD had engaged in ‘rough sex’ on previous occasions.
The causing injury charge was the subject of debate at the plea hearing.[2] While the applicant pleaded guilty to recklessly causing injury, on his evidence the injury consisted of a slap to the face in the course of an argument after two consensual acts of sexual intercourse. On the applicant’s case, this argument had precipitated the allegations of rape. On the prosecution case, there was no such argument and the injury in question was inflicted during the sexual offending. The judge sentenced the applicant on the basis that the injury was inflicted (intentionally, as the jury found, rather than recklessly) in the course of the offending the subject of charge 3.[3]
[2]Ibid [10].
[3]Ibid [25].
Prosecution evidence
The prosecution case consisted of the evidence of LD, together with evidence of a friend (whom it is convenient to call ‘DH’) and two police officers regarding complaints she made later on the night in question, and forensic evidence as to injuries sustained by her and damage done to the singlet she had been wearing.
LD gave evidence that, from 25 April 2018 until the early part of May, her relationship with the applicant was a ‘good relationship that was sexual’. The applicant stayed at her house ‘quite a few times’. On 17 May 2018, LD and the applicant had a ‘pretty relaxed day’. They ‘watched a few movies’ and smoked ‘a bong of marijuana’. That night, she decided to cook dinner. The applicant drank spiced rum, and LD had two or three sips of the rum with orange juice. Throughout the night, the applicant ‘got a bit more boisterous and a bit more energetic than what he normally is’. After dinner, they went upstairs and watched movies on LD’s laptop and cuddled.
At about 11:30 pm, LD was lying on her bed with her back facing the applicant. He pulled her closer to him and tried to take off her blue tracksuit pants, to which she said ‘No’. The applicant then flipped her onto her back, and pulled off her pants and underwear. He then put himself between her legs, opened her legs with his hands, and inserted his penis in her vagina. LD said, ‘No’ and that she ‘didn’t want to’, to which the applicant replied, ‘Why? You always ask for sex’. She then said, ‘No. I don’t want to’. Before he inserted his penis into her vagina, the applicant bit LD on the breast, after he had pulled off her singlet. LD tried to fight him off but the applicant was too strong for her. After he had inserted his penis into her vagina, the applicant’s hands were, at times, around LD’s throat, applying pressure and choking her. At other times he hit her on the right side of the face with either a fist or open hand. (LD later accepted that she had got the side wrong and that it was her left side.) LD blacked out while the applicant’s hands were around her neck. When she woke up, the applicant was still on top of her, and ‘still inside’ her.
The applicant then told LD to turn over because he wanted to have anal sex. She said ‘no’. He then flipped her onto her knees. She managed to reach for some lubricant and quickly put some on her anus before the applicant inserted his penis into it. LD had given up fighting because she was scared that if she continued to hit the applicant, he would hit her harder. She kept saying, ‘No, stop, I don’t want to, this isn’t okay’, and ‘that he was raping me’. The applicant shrugged his shoulders and said he didn’t care. He grabbed her hair, and LD thought that he hit her a few times to the side of her face with a clenched fist. He ejaculated inside her.
LD then went to the bathroom. Before she left the bedroom, she told the applicant that ‘it was rape and that he raped’ her. The applicant then came into the bathroom, and LD returned to the bedroom. She then messaged one of her friends, DH, on Snapchat, and told him that the applicant had ‘kinda pretty much just raped’ her. She said ‘he thinks I always want sex but I don’t’. She also sent DH photographs of marks and bruises on her face and neck. She had in the meantime put her clothes back on.
The applicant returned to the bedroom. After some time had passed, the applicant said that he was ‘horny again’ and forcibly took off LD’s clothes. She said, ‘No. I don’t want to. Stop.’ The applicant responded that ‘he didn’t care’ and hit her in the face. The applicant ripped her singlet and tore it off her which caused a burning pain and cut on LD’s armpit. The applicant, positioned on top of LD and between her legs, put his penis inside her vagina. He continued to hit her to the side of the face and to choke her so that she couldn’t breathe.[4] The applicant said to LD ‘This is why you should keep a knife beside your bed’. The applicant ejaculated inside her. She said that the applicant was ‘just laying his fist or his hand into me over about — about 100, over 100, 150’ times.
[4]LD later accepted she had got the side of her face wrong.
After about 10 or 15 minutes, the applicant again said that ‘he was horny again’. LD was scared that she was going to die, so she ‘just laid there’. The applicant got back on top of her and put his penis inside her vagina. He could not stay erect after a short period of time and withdrew.
LD pretended to go to sleep. After about 10 minutes she sat up and the applicant asked for her phone. She grabbed her phone, got dressed and ran downstairs, and spoke to her father. When she saw that she had received Snapchat messages from DH, who was parked outside, LD told her father that she had been raped. She held up three fingers to indicate she had been raped three times. They both ran to DH’s car. LD saw the applicant get in his car and drive away. DH drove her to the Broadmeadows police station.
In cross-examination, LD accepted that she had an interest in ‘rough sex’, involving having a hand placed ‘lightly’ on her throat and being ‘slightly spanked on the bottom’. The pressure of a hand on her throat did not involve squeezing or constricting of any sort. In their sexual relations, she had suggested that the applicant put his hand on her throat, and he had suggested the spanking on the bottom. She asked him to do these things and he did them.
LD also accepted that she had said in her statement to police that she had begged the applicant to use lubricant before performing anal sex, and that he had refused. She said in cross-examination that this was when she applied lubricant herself:
So what did he say, when he refused?---He just ignored it, and that’s when I reached and grabbed it, because I wasn’t gonna not [sic] do it without it.
And he was grabbing you by the hair at this stage?---Yes.
And proceeded to, in your version, violently rape you, correct?---Yes.
But — and you’d asked — and in fact, you’ve said that he was saying things to the effect of, ‘Do you like it baby?’ or ‘Does it feel good baby?’ Something along those lines?---Yes.
But he certainly didn’t prevent you from accessing the lube, did he?---Well, he was holding me and grabbing me, and he had me in — with my hair. So I don’t know if you count that as preventing or not.
What I mean is, you were able to grab the lubricant?---I was able, yes, with a lot of pain and stretching.
He did not stop you?---I guess no, he did not stop me.
LD denied the applicant’s account of the evening when its details were put to her. She also denied that the content and timing of her Snapchat messages to DH indicated that she wanted to hurt the applicant for having slapped her by falsely telling DH she had been raped, and that she initially did not want the police to be involved because what she had said to DH was untrue.
DH gave evidence that he received messages on Snapchat from LD in the evening of 17 May 2018. After finishing work, DH drove to her house. He messaged her saying that he was outside. LD ran out to his car and was ‘in hysterics’. Her father followed after. DH saw the applicant leaving. DH drove LD to the Broadmeadows police station. On the way to the police station, she told DH that ‘Shane’ had punched and choked her, that he had penetrated her anally and vaginally, and that he had ejaculated inside her multiple times.
A statement of Senior Constable Michael Athans was read into evidence. Senior Constable Athans was working nightshift at the Broadmeadows police station on 17 May 2018. DH attended the counter with LD. She was visibly upset and the left side of her face was red and inflamed. She said that the applicant had ‘forced vaginal and anal intercourse with her three times’. He had ejaculated inside her on the first occurrence but not the third. She said the applicant had hit her to the face with an open hand, punched her to the face and pulled her hair. Throughout the time, the applicant had ‘kept asking [her] whether she enjoyed it’, and kept hitting her and pulling her hair. She had lost consciousness after being punched and woken up to find him choking her. Senior Constable Athans rang for an ambulance and contacted the Sex Offence and Child Abuse Investigation Team (‘SOCIT’). He had photographs taken of any visible injuries.
A statement of Rachael Hutt, a paramedic, was also read into evidence. Ms Hutt examined LD at the police station. LD had red handprint marks to her left face, neck and her right rib. She was complaining of upper back pain and a throbbing headache. Ms Hutt conveyed her to the Royal Melbourne Hospital.
Next, a statement of Detective Senior Constable Douglas Fincher was read into evidence. Detective Senior Constable Fincher was attached to the SOCIT at the Fawkner police station. He attended at the Royal Melbourne Hospital and spoke to LD. She said that the applicant had become enraged after a conversation regarding his ex-partner, and assaulted LD and raped her four times, ejaculating twice. Detective Senior Constable Fincher took LD and DH to the Royal Women’s Hospital.
Dr Grace Vittor, who in May 2018 was working as a clinical forensic medicine registrar at the Victorian Institute of Forensic Medicine, gave evidence that she examined LD at the Royal Women’s Hospital on 18 May at approximately 9:30 am. Dr Vittor noted 24 distinct physical injuries, which she photographed. The injuries included an area of redness on the left side of the face, some bruising in and behind the left ear, petechial bruising (being localised spots rather than general discolouration) to the face and neck, a large bruise high on the chest, a mark under the right breast and an abrasion or cut in the armpit.
A statement of Alexandra Salerno, a forensic officer employed at the Victorian Forensic Services Centre, was read into evidence. Ms Salerno examined LD’s singlet, which was ‘extensively damaged over and above normal wear and tear’. In Ms Salerno’s opinion, the singlet had features which indicated that the damage was recent, and that significant force was required to cause the damage. Swabs taken from LD’s breasts tested positive to the presence of human saliva. DNA analysis found that it was 100 billion times more likely that the applicant was a contributor than not.
Defence evidence
The applicant gave evidence in his own defence. He said that on 17 May 2018, he and LD smoked ‘a decent amount’ of marijuana and ‘ice’. They had sex in the afternoon, during which the applicant bit her breast ‘too hard’. They later went together to the local supermarket. After returning to LD’s house, they prepared dinner and were both drinking. After dinner, they went upstairs and smoked marijuana and ice in the bathroom.
They then went to the bedroom, and LD said to the applicant ‘oh, take me’, which meant that she wanted the applicant to have sex with her. She asked the applicant to ‘pull my top off, just rip my top’. LD was wearing a singlet. The applicant pulled her top and heard ‘a bit of a rip in there’. They began having vaginal sex. The applicant then asked LD if they could have anal sex. She said okay, grabbed the lubricant, and told him to make sure that he put the lubricant on. The applicant put the lubricant on and they proceeded to have anal sex.
Immediately after they had sex, LD went to the bathroom. When she returned to the bedroom, she grabbed her laptop and they started to watch Netflix together while sitting on the bed. The applicant saw a message pop up on the laptop screen which said, ‘Hey sexy. Is he still there?’ or ‘Can I come over now?’ or ‘Can I come over now or is he still there?’. The applicant said that he smacked the laptop and LD’s arm, and the laptop went flying off to the other side of the room. The applicant was annoyed at the message. He started walking towards the bathroom, and LD grabbed him. The applicant ‘went smack … into her chest’ and pushed her ‘pretty hard’. LD ‘went flying backwards’. She then tried to hit the applicant across the face. The applicant ‘took one step back and [he] just went whack across the side of her face’. LD dropped to the ground. The applicant ‘didn’t mean to hit her’, he ‘just didn’t think’.
LD told the applicant to leave. Because he had been drinking, and was on a ‘double zero’ driver’s licence, he told her that he could not drive, and did not leave. LD was pushing at the applicant, trying to move him off the bed. The applicant pushed her and she fell off the side of the bed. LD went downstairs and said that she was going to tell her father. The applicant agreed to leave because he did not want to have an altercation with her father. As the applicant left the house, he saw LD walk out and across to a car that was there.
The applicant said that when having sex LD would ask him to choke her, not just apply light pressure on her throat, and to slap her on the bottom. He said ‘She’d say basically something along the lines of “[choke me] baby” or something like that’. He had been apprehensive about the choking but it seemed to make her happy, so he would do it. If anything, she complained about him not doing it hard enough. The choking and slapping went ‘hand in hand’, and he never did either when he thought she was not consenting.
In cross-examination, the applicant denied that he had made up an account to explain the injuries to LD.
Applicant’s submissions
The case advanced by the applicant relied on s 276(1)(a) of the Criminal Procedure Act 2009, alleging that the guilty verdict on charge 3 was ‘unreasonable’.
The applicant submitted that the jury must have found that the complainant had not been a truthful witness. All the events were said to have occurred on one evening, in the same room over a relatively short period of time. A complaint was made to a friend immediately and to the police later on the same morning. It was submitted that the reliability of LD’s evidence was not in issue. There was no possibility that she had been mistaken, and no ambiguity as to her evidence regarding penetration, consent or the applicant’s belief in her consent.
The applicant submitted that, because there was no doubt about the clarity, accuracy or reliability of LD’s memory, and because her evidence provided detail as to the technical elements of the offence, the only explanation for the acquittal of the applicant on charges 1, 2 and 4 was that the jury did not accept LD as a credible witness.
It was submitted that there was no real distinction in the evidence of LD between any of the offences, and none had been sought to be made by defence counsel. The case had been run as an ‘all or nothing’ trial. In particular, there was no distinction in the evidence, as between any of the charges, with respect to: the level of detail in LD’s evidence; the quality of her memory; the possibility of consent or of the applicant having a belief in her consent; the level of violence alleged to have been inflicted; or the prospect of any doubt as to the occurrence of penetration.
The applicant submitted that the fact that there was independent evidence that the singlet had been torn did not serve to distinguish the evidence on charge 3. It had never been in issue that the singlet was ripped. The applicant had given evidence that he had heard a rip when he pulled off LD’s top in the course of consensual ‘rough sex’ earlier in the evening.[5] It was submitted that the evidence relating to the singlet did not stand as a basis for a conviction on charge 3 in circumstances where the jury acquitted the applicant on charges 1, 2 and 4.
[5]See [30] above.
In the circumstances, it was submitted that it was an affront to logic and common sense for the jury, having found LD not to be a credible witness in respect of charges 1, 2 and 4, none the less to have accepted her evidence in respect of charge 3.
Finally, the applicant submitted that it was not possible to explain the conviction on charge 3 on the basis that the jury might have taken a ‘merciful’ view of the conduct of the applicant in respect of the other three rape charges. It was submitted that this was not a case of a stray acquittal explicable by the jury having taken a merciful view. Rather, it was a stray conviction among verdicts of acquittal that suggested an overall rejection of the prosecution case and the credibility of LD.
Respondent’s submissions
The respondent submitted that it was open to the jury to accept or reject any part of LD’s evidence. It was submitted that the verdicts of acquittal did not demonstrate that LD entirely lacked credibility, only that the jury was not satisfied beyond reasonable doubt of each element of the offences in question. It was open to the jury to accept some parts and reject other parts of the evidence of both the applicant and LD.
The respondent submitted that it was open to the jury to doubt that charges 1 and 2 had been committed, in light of the evidence of the applicant as to there having been consensual intercourse of the kind described in the evening. The evidence was that intercourse had taken place in the context of ‘rough sex’. The evidence that LD had applied lubricant to herself could raise a doubt in respect of charge 2 concerning either her consent or, more probably, the applicant’s belief as to her consent. In addition, there was evidence that, during the act said to constitute charge 2, the applicant had asked the complainant whether she was enjoying what was happening. Further, the evidence of the initial Snapchat communications with DH could have led the jury to doubt LD’s evidence as to the strength of her objections.[6]
[6]See [16] above.
In contrast, the respondent submitted that charge 3 was different in nature from what was alleged in charges 1 and 2. The acts of violence described by LD were much clearer departures from the ‘rough sex’ to which she had previously consented. Further, it was during this incident, in particular, that there was evidence that the applicant had told LD that this was why she should ‘keep a knife’.
In the circumstances, the jury was entitled to have a higher level of satisfaction as to the absence of consent, or the applicant’s reasonable belief in consent, in respect of charge 3.
Senior counsel for the respondent submitted that the evidence regarding lack of consent was not as strong in relation to charge 4 as it was in respect of the other charges. It was submitted that it was possible that the jury had acquitted on charge 4, either on that basis, or because LD had also told her father and, at least initially, the police, that she had been raped three times, rather than four.
General principles
The principles that apply in a case of inconsistent verdicts were outlined in MacKenzie v The Queen.[7] Gaudron, Gummow and Kirby JJ said:
Where, as is ordinarily the case, the inconsistency arises in the jury verdicts upon different counts of the originating process in a criminal trial, the test is one of logic and reasonableness. A judgment of Devlin J in R v Stone is often cited as expressing the test:
He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand.[8]
[7](1996) 190 CLR 348 (‘MacKenzie’).
[8]Ibid 366 (Dawson and Toohey JJ agreeing at 351) (citations omitted).
The test is not easily satisfied. The joint judgment in MacKenzie goes on to state:
Nevertheless, 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.[9]
[9]Ibid 367 (citations omitted).
The joint judgment gave examples of possible explanations for different verdicts:
In a criminal appeal, the view may be taken that the jury simply followed the judge’s instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt. Alternatively, the appellate court may conclude that the jury took a ‘merciful’ view of the facts upon one count: a function which has always been open to, and often exercised by, juries. The early history of New South Wales was affected by English juries which, in the face of clear evidence, declined to find the value of goods stolen sufficient to attract the punishment of death, thereby affording to the offender the alternative punishment of transportation. Australian decisions have acknowledged that the role of the jury continues to be ameliorative in this respect. In R v Kirkman, in the Supreme Court of South Australia, King CJ (with the concurrence of Olsson and O’Loughlin JJ) observed:
[J]uries cannot always be expected to act in accordance with strictly logical considerations and in accordance with the strict principles of the law which are explained to them, and courts, I think, must be very cautious about setting aside verdicts which are adequately supported by the evidence simply because a judge might find it difficult to reconcile them with the verdicts which had been reached by the jury with respect to other charges. Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law. Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number. This may not be logically justifiable in the eyes of a judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries. Appellate courts therefore should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty.
We agree with these practical and sensible remarks.[10]
[10]Ibid 367–8 (citations omitted).
The judgment concluded:
Nevertheless, a residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury’s duty. More commonly, it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law. It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside. It is impossible to state hard and fast rules. ‘It all depends upon the facts of the case.’[11]
[11]Ibid 368 (citations omitted).
The need to decide each case by reference to its facts means that, even in a case which depends overwhelmingly or entirely on the evidence of the complainant, an acquittal on one or more charges does not require the appellate court to conclude that a conviction on another charge or charges is unreasonable.[12] As Spigelman CJ put it in Markuleski v The Queen:
The circumstances of a particular case may lead to the conclusion that a jury which has found that it had a reasonable doubt with respect to a complainant’s evidence on one count, ought to have had such a doubt with respect to other counts. However, it does not follow that that must necessarily be the case.[13]
[12]Markuleski v The Queen (2001) 52 NSWLR 82, 98–100 [64]–[74] (Spigelman CJ, Carruthers A-J agreeing at 149 [344]) 123–32 [202]–[238] (Wood CJ at CL), 135 [271] (Grove J), 145 [324] (Simpson J) (‘Markuleski’).
[13]Ibid 100 [73]. See also R v KET [1998] VSCA 73, [29] (Winneke P, Brooking JA and Batt JA agreeing at [35] and [36]), cited with approval in Markuleski (2001) 52 NSWLR 82, 99 [67] (Spigelman CJ), 129 [226] (Wood CJ at CL); NCH v Western Australia [2013] WASCA 29, [130] (Buss JA, Martin CJ agreeing at [1], Mazza JA agreeing at [158]).
To the contrary, it is a ‘very significant step’ to conclude that the reason for the jury’s decision to acquit on one count is that they were so unable to accept the complainant’s evidence on that count that the complainant’s evidence was incapable of founding a conviction on another count.[14]
[14]TK v The Queen (2009) 74 NSWLR 299, 301 [6] (McClellan CJ at CL).
Consideration
As explained in the authorities, the question to be decided is whether a reasonable jury applying their minds properly to the evidence could have convicted the applicant on charge 3 while acquitting him of charges 1, 2 and 4.
The applicant’s submissions were directed, in particular, at establishing that the jury must have found LD not to be a credible witness in respect of charges 1 and 2. Counsel put it as highly as to submit that the jury must have found that LD had lied in her evidence. It was said that her evidence was simply too clear and detailed, accompanied by immediate complaints, to permit any other explanation for the acquittals. Counsel submitted in the alternative that, at the very least, the jury must have found that LD was not a credible witness with respect to charges 1 and 2. It was said that this was an ‘all or nothing’ case in which the jury either believed LD or it did not.
It may be accepted that, if the jury had found LD not to be a credible witness in respect of charges 1 and 2, then it would have been remarkable for them to have accepted her evidence in respect of charge 3. Such an approach could not have been explained by the evidence of the torn singlet alone. That evidence was equivocal because the applicant acknowledged tearing it during sexual activity on the night in question. The difference in accounts as to the circumstances in which that happened itself turned on questions of credibility.
However, in our opinion the applicant has failed to establish that the jury must have decided upon verdicts of acquittal on charges 1 and 2 because they did not accept LD as a credible witness.
There is an alternative explanation which logically and reasonably accounts for the different verdicts. It was open to the jury substantially to accept LD as a witness of credit but not to be satisfied beyond reasonable doubt in relation to charges 1 and 2. In doing so, it may be that the jury considered that some doubt attached to aspects of LD’s evidence, without taking the further step of concluding that her evidence as a whole was suspect.
Charges 1 and 2 were alleged as elements of one larger event of sexual activity between two people who were in an intimate relationship, albeit one of relatively short duration. In such a case, questions of consent, and reasonable belief in consent, may play a significant part in a jury’s deliberations.[15] In this case, in particular, there was evidence that the applicant and LD had engaged in ‘rough sex’ in which the applicant slapped LD on the bottom and placed some pressure on her throat.
[15]Cf ibid 326–7 [158]–[159] (Simpson J, McLellan CJ at CL relevantly agreeing at 300 [1], Latham J agreeing at 332 [204]).
LD gave evidence that the applicant had gone beyond what they had previously agreed in the course of each of the charged events. But the jury had to decide whether it was satisfied beyond reasonable doubt that the applicant lacked a reasonable belief that LD was consenting.
In relation to charge 1, LD said that she objected to the applicant undressing her but that matters progressed until she was penetrated, at which time she said she ‘didn’t want to’ and the applicant replied ‘Why? You always ask for sex’. She said she told him ‘No. I don’t want to’. This exchange was said to have taken place at the time of penetration. However, the judge directed the jury that the applicant continued to penetrate LD after she said she did not want him to. It is appropriate to assume that the jury acted on that basis. LD also gave evidence that these events were accompanied by choking and hitting of her face with ‘either a fist or a slap’; she tried to hit the applicant and fight him off ‘but it didn’t work’.
It was necessary, in order to convict the applicant on charge 1, for the jury to accept that the applicant either knew, or was reckless as to whether, LD was not consenting, or that if he thought she was consenting that belief was not reasonable. Those questions fell to be considered, not just in light of the evidence just outlined, but other evidence relevant to charges 1 and 2. It is therefore convenient to describe LD’s evidence in respect of charge 2 before returning to consider both charges together.
The evidence LD gave as to her objection to the events alleged in charge 2 was similar to that already set out. LD said that she kept saying, ‘No, stop, I don’t want to, this isn’t okay’ and that she ‘wanted to stop’. She was perhaps less clear about being physically assaulted on this occasion. When asked the leading question ‘What about to your head?’ she said, ‘Um I did think he reached down and hit me a few times um during that attack’. When then asked ‘When you say you did think, what’s your memory of that today?’ she said, ‘I know he definitely hit me a few times but I’m not sure exactly sure how many times that was’, indicating with a clenched fist. Pausing there, the jury was entitled to view this part of LD’s evidence with some circumspection, improving as it did with the prompting of the prosecutor.
In addition, the jury had to decide what to make of LD’s evidence that she had managed, with difficulty, to apply lubricant to her anal region before penetration occurred. As she put it in cross-examination, ‘I wasn’t gonna … do it without it’. During the events of charge 2, LD agreed that the applicant was saying things to the effect of ‘Do you like it baby?’ or ‘Does it feel good baby?’. There was no evidence as to how, if at all, she responded.
It was open to the jury to have a reasonable doubt, on the basis of this evidence, as to whether the applicant lacked a reasonable belief that LD was not consenting to the act of anal penetration. Although, on the Crown case, LD’s resort to the lubricant was an act of self-preservation once she was resigned to being anally penetrated against her will, the jury might reasonably have considered that the applicant might have believed that she was indicating a willingness to proceed, on condition that lubricant was used. Such a belief would be consistent with the applicant asking LD whether she was enjoying the experience. It would also be consistent with LD’s evidence that, without lubricant, she ‘wasn’t gonna … do it’.
It is also necessary to consider the Snapchat evidence, which bore principally on charges 1 and 2 because it described those events rather than those alleged to have occurred later in the evening.[16] In particular, LD’s statement that the applicant had ‘kinda pretty much just raped’ her was much less emphatic than the protestations she described in her evidence. She also initially told DH that she didn’t want to leave, and did not respond to DH’s suggestion that he contact the police. She also told him that the applicant could stay the night and would leave the next morning.
[16]The bulk of the Snapchat messages between LD and DH were sent and received in the period after the events the subject of charges 1 and 2 but before the events the subject of charges 3 and 4.
LD also confirmed in those messages that the applicant ‘thinks I always want sex’. The jury might reasonably have evaluated that evidence, especially against the ‘rough sex’ understanding between the applicant and LD, as raising doubt whether the applicant lacked a reasonable belief in LD’s consent to the events alleged in charges 1 and 2.
Charges 1 and 2 were alleged to have occurred within a very short time of each other. If the matters outlined above had given the jury reason to doubt that the mental element of charge 2 had been established, they might well have doubted that it had been established in relation to the entire incident.
On this basis, there was a rational explanation for the acquittals on charges 1 and 2 which did not involve the jury doubting the credibility of LD as a witness.
Charge 3 was different in a number of respects. In particular, LD’s evidence pointed to much greater violence. She said that, when she objected as the applicant tried to undress her, he said he ‘didn’t care’ and hit her in the face. LD said this was when the singlet was forcibly ripped from her, causing the cut in her armpit. That cut and the damage to the singlet corroborated her account of considerable force being involved. She went on to recount the applicant saying, as he penetrated her and was at the same time hitting her to the face and choking her, ‘This is why you should keep a knife beside your bed’. LD’s evidence was that she was unable to breathe and had a panic attack. She asked the applicant to stop but he refused. Overall she said she had been hit ‘about 100, over 100, 150’ times with the applicant’s fist or hand.
The fourth incident was said to have followed soon after. LD said she ‘just laid there’. She could not recall saying anything during the incident.
There was evidence of bruising to LD’s face, both in the Snapchat communications saved by DH and in the photographs taken later in the night. On both the applicant’s account and the evidence of LD, he had hit her in the face. The expert evidence did not descend into speculation as to whether the photographs were more consistent with one account than the other. But the clearest evidence given by LD as to what caused the bruising was in relation to charge 3. Even allowing for the possibility of exaggeration in LD’s account of the number of times she was hit, it was open to the jury to conclude that the photographic and expert evidence supported her evidence on charge 3.
If the jury otherwise accepted the evidence of LD as to charge 3, there was no room for them to have any reasonable doubt as to the applicant’s reasonable belief in LD’s consent. She described a violent and menacing attack which induced verbal protests and a panic response, yet the applicant continued to penetrate her until he ejaculated. There was no suggestion that the applicant asked her whether she was enjoying what was happening, nor could it have been thought that she might have relented and given her consent. In addition, there was evidence of LD’s highly distressed flight from the house after, on her account, the events of charges 3 and 4. This not only corroborates her account of her panicked state, but stands in marked contrast to the evidence that, after the events of charges 1 and 2, LD did not want the police involved and was prepared to let the applicant stay the night.
In these circumstances, acceptance of LD’s evidence on all charges, while making allowances for some possible exaggeration, was consistent with conviction on charge 3 and acquittal on charges 1 and 2. The evidence as a whole was capable of raising a reasonable doubt as to the applicant’s reasonable belief in LD’s consent in respect of charges 1 and 2, but did not demand that the jury have such a doubt in respect of charge 3.
The evidence as to charge 4 differed from that concerning the other charges. On this occasion, there seems to have been no violence and no verbal or other indication that LD refused consent. In these circumstances, while it might be thought surprising if LD had in fact consented to intercourse after the events of charge 3, it would be less surprising if the jury had a doubt whether the applicant lacked a reasonable belief that she did so consent. It must also be recalled that LD initially alleged three, rather than four, rapes. The jury might for these reasons have had a reasonable doubt as to the applicant’s guilt with respect to charge 4.
In all the circumstances, therefore, there was a logical and reasonable basis for the jury to have convicted the applicant on charge 3, while acquitting him of the other charges.
It is not necessary to consider, in these circumstances, the respondent’s argument that the jury might have reached a ‘merciful’ verdict. Put differently, it is not necessary to decide whether the jury might have ‘taken a practical view’ and decided that a conviction on charge 3 was sufficient to reflect the applicant’s criminality.[17] It suffices to note that this possibility is stronger as an explanation for the different treatment of charge 4, as against charge 3, than as an explanation of the acquittals on charges 1 and 2.
[17]Markuleski (2001) 52 NSWLR 82, 100–1 [77] (Spigelman CJ), citing R v Kiskarpati (New South Wales Court of Criminal Appeal, 4 November 1998) 6 (Hidden J, McInerney and Ireland JJ agreeing).
While leave to appeal should be granted, the appeal must be dismissed.
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