Kometer v The State of Western Australia - [2005] WASCA 131

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: KOMETER -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 131

CORAM: MALCOLM CJ
ROBERTS-SMITH JA
MCLURE JA

HEARD: 1 APRIL 2005

DELIVERED : 13 JULY 2005

FILE NO/S: CCA 143 of 2004
CCA 144 of 2004

BETWEEN: RALPH RODGER KOMETER
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :WILLIAMS DCJ
File No  :IND 137 of 2002

Catchwords:

Criminal law - Appeal - Inconsistency of verdicts - Charges of deprivation of liberty and aggravated sexual penetration without consent - Acquittal on second and conviction on first - Whether verdicts inconsistent

Criminal law - Appeal - Verdict unreasonable or cannot be supported on the evidence - Inconsistency of verdicts

Criminal law - Sentence - Deprivation of liberty - 2 years 8 months' imprisonment - Whether manifestly excessive - Delay in charge and prosecution - Effect on sentence

Legislation:

Nil

Result:

Application for leave to appeal against conviction granted
Appeal dismissed
Application for leave to appeal against sentence dismissed

Category: A

Representation:

Counsel:

Applicant: Mr D Grace QC
Respondent: Ms T D Sweeney & Mr L M Fox

Solicitors:

Applicant: Williams Ellison
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Bell v The Queen [2001] WASCA 40
Duncan v The Queen (1983) 47 ALR 746
Jones v The Queen (1997) 191 CLR 439
M v The Queen (1994) 181 CLR 487
MacKenzie v The Queen (1996) 190 CLR 348
MFA v The Queen (2002) 213 CLR 606
Mill v The Queen (1988) 166 CLR 59
R v King [2000] WASCA 130
R v PMT (2003) 8 VR 50
R v Whitehead [2000] NSWCCA 400
Sell v The Queen (1995) 15 WAR 240
Wagenaar v The Queen [2000] WASCA 325

Case(s) also cited:

R v Kirkman (1987) 44 SASR 591

MALCOLM CJ: In my opinion, this application for leave to appeal against conviction should be granted, but the appeal dismissed for the reasons to be published by Roberts‑Smith JA. I am also of the opinion that the applicant's application for leave to appeal against sentence should be refused for the reasons to be published by his Honour. I am also in agreement with the additional reasons to be published by McLure JA in relation to the appellant's contention that the verdicts were inconsistent.
ROBERTS-SMITH JA: The applicant applies for leave to appeal against conviction and sentence.
Following a two day trial before Williams DCJ and a jury in the District Court at Kalgoorlie, the applicant was convicted on 19 August 2004 of one count of unlawful detention contrary to s 333 of the Criminal Code (WA) and was acquitted of the other count on the indictment, being one of aggravated sexual penetration of the complainant without her consent on the same date and at the same place contrary to s 326 of the Code.
In respect of count 1 the applicant was sentenced to imprisonment for 2 years 8 months with an order that he be eligible for parole.
There is one ground of appeal against conviction. It is:
"The verdict of the jury of 'guilty' in relation to Count 1 on the indictment should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence.
PARTICULARS
(a)The verdict of 'guilty' in relation to Count 1 is factually inconsistent with the verdicts of 'not guilty' in relation to Count 2 and its statutory alternative.
(b)The verdict of 'guilty' in relation to Count 1 is otherwise unsafe or unsatisfactory as the evidence did not permit a finding beyond reasonable doubt that the Applicant unlawfully detained [the complainant]; the evidence was only capable of demonstrating the presence of the Applicant in the caravan at certain unspecified times."
The prosecution case was that on the night of 21 July 2000 the complainant was gang raped in a caravan at the Gypsy Joker's clubhouse

in Boulder and the applicant was one of the men who kept her in the caravan and raped her.

In substance, the State prosecutor opened as follows.
The complainant and her friend, Ms P, had arrived in Kalgoorlie from the eastern states about 10 days prior to the incident. They were unfamiliar with Kalgoorlie. On the night of 21 July they had a meal at a pizza place in Hannan Street and a drink at the Tart 'n' Miner Bar. That was across the street from Paddy's Bar and the Exchange Hotel.
The complainant and her friend were talking to a patron of the bar when a large group of about 14 men walked in, one of whom was the applicant. About five or six of the men sat down at the bar near the complainant and her friend and appeared to be taking an interest in what was going on at their table. The man to whom they were talking appeared to become nervous and eventually he got up and left. At that stage some of the group started talking to the two women. The first one was shorter than the rest and of smaller build. The other men were calling him "Spud". The other man was taller, of solid build, his hair was either short or tied back and he had a beard and a moustache. He also had a tattoo on his arm just showing under his shirt. This man was the applicant.
During her discussion that evening with the applicant at the Tart 'n' Miner the complainant mentioned that she was in town looking for work at the mines. The applicant told her that he worked on a mine site.
After about half an hour, someone suggested the group move across the road to another hotel. The complainant thought they meant the Irish hotel, Paddy's, and agreed, as did Ms P, but they found themselves taken to the saloon bar at the Exchange Hotel. Most of the men in the group they were with went to another part of the bar, but a couple sat with the complainant and Ms P. Shortly afterwards, the two women moved into Paddy's Bar and began talking to other people not associated with the group. However, the applicant approached them in Paddy's Bar and told them there were drinks bought for them back in the Exchange Hotel, so they returned to the saloon bar there. Two glasses of red wine were waiting for them and the complainant recalls that they each drank them.
As it was put by the State prosecutor, "things then became a little bit foggy" for the complainant. She did recall that Spud made some kind of approach to her, but she pulled away.
The complainant recalled being at a nightclub which she believed was called "Club 151", but could not recall how she got there. She recalled that she was dancing on the dance floor, but could not recall how she left the club. Her next memory was being in the back of a high sided utility, which was driving along the road. Ms P and a number of others were in the back with her. The car stopped and they all got out. The complainant and Ms P and were led inside a building which contained a pool table and a motor cycle. This was the Gypsy Jokers' clubhouse at Boulder.
The complainant and Ms P sat at the bar briefly, where they were each given a shooter in a test tube. Shortly afterwards the accused took the complainant's arm and led her away saying that he wanted to talk to her. She went with him thinking they were just going to the end of the bar, but he led her outside and took her to a caravan. One end of the caravan was sparsely furnished with a table and chairs; behind a partition at the other end was a double bed.
Very shortly after the complainant and the applicant walked into the caravan, and whilst she was standing and fully dressed, some other men followed them in. The complainant asked what was going on and the applicant told her that he was sorry, that he had thought he had locked the door and that "I didn't think this would happen tonight". She tried to get out of the caravan but the men were blocking the door. When she tried to push her way out, the men, including the applicant, pushed her back, some of them laughing as they did so. She was then thrown onto the bed, pushed back on to it and someone removed her top and then they all started to remove the rest of her clothing.
The complainant could recount parts of what happened after that, but not all. She did see a number of men in the partitioned area undoing the zips of their jeans as they stood around the base of the bed. One man then began to rape her. The applicant was still in the room when that happened.
The complainant was having a period at the time and still had a tampon inside her. When the first man began to rape her it was pushed further inside and remained there during the following events. She began flitting in and out of consciousness, but each time she came to, a man was having sex with her.
As far as she could tell the applicant remained there during that time and she recalled him being on a corner of the mattress in a semi‑dressed state at one stage. On another occasion she recalled him being on top of her. She was forced intermittently to perform oral sex on some of the men. That happened a number of times with different men but she could not recall their faces.
Later, she awoke to find she was alone in the room. The applicant then stuck his head in the door and told her to hurry up and get dressed before the others returned. She had been crying and used a bed covering lying nearby to blow her nose and wipe herself. She dressed and went outside to where the applicant was waiting. She needed to relieve herself so she walked around the side of the caravan and did so on the ground. The applicant then let her back into the main building where Ms P was. Ms P had a swollen eye. The applicant took the two girls outside, but was then called away by someone else. At that stage they moved towards the main entrance and when they got close enough they ran out of the gates. They ran to a business by the name of "Analabs" in a nearby street where they found a Mr David Camilleri operating a forklift. It was by then early in the morning. They asked him to call a taxi and after a couple of attempts, one did arrive. The taxi driver was a Maori woman. She drove them to Monty's Restaurant. During the trip the complainant told Ms P what had happened and spoke about getting people to come over from the eastern states to punish the men for what they had done.
The complainant and Ms P had been at Monty's restaurant for about 20 minutes when a man came in and told them he knew what they had said in the taxi and, if they knew what was good for them, they would keep their mouths shut. A waitress saw this happening and asked if they wanted to call the police, but they declined because they were frightened by what the man had just said to them.
Eventually the two women went back to the York Hotel where they were staying and went to sleep. Before doing so, the complainant managed to remove the tampon from inside herself and flushed it down the toilet. She put the clothing that she had been wearing in a plastic bag.
The two women checked out of the hotel the following morning. After a chance meeting with a police officer's wife they were placed in a refuge. The matter was subsequently reported to the police and the complainant was seen by a doctor on 23 July 2000. Dr Ng found bruising and reduced movement in her back and bruised inner thighs. Upon examination he did not find any semen. The complainant's vaginal wall was red and consistent with recent sexual intercourse. Swabs and blood samples were taken and forwarded for analysis. Forensic examination of the complainant's g‑string underpants confirmed the presence of semen.
DNA analysis of samples produced a mixed DNA profile, that is one indicating DNA from two or more people. The major component matched the DNA of the applicant.
The prosecutor summarised the State case as being that the complainant was raped by a large number of men, one of whom was the applicant and that when she tried to get out of the caravan, he was one of the men who stopped her leaving.
Counsel for the applicant conceded at the outset of the trial that the applicant had sexual intercourse with the complainant but said that it was consensual. The applicant did not give evidence.
The complainant was 37 years of age at the time of trial.
In her evidence, the complainant said that she and Ms P, who had been friends for some four years, went to Kalgoorlie to look for work as laboratory assistants in the mines. She said that she bought a bottle of wine and the two of them had a couple of glasses at the Tart 'n' Miner before the group of men came into the hotel. Ms P subsequently purchased another bottle of wine. The complainant said she drank a total of four glasses of red wine.
She testified that she could not recall whether at the clubhouse she drank the shooter which was handed to her, but Ms P did drink the one given to her.
The complainant's evidence was that when the group of around 10 men walked into the caravan she was standing and fully dressed. It all happened very quickly. She said she looked at the big man with whom she had originally entered (she did not identify him as the applicant until her cross‑examination) and asked him what was going on. When she asked him again he replied that he thought he had locked the door and "this wasn't supposed to happen tonight". She testified that she got angry and "started going off at them basically, telling them to let me out". She told them to let her out, she was not one of their bikie whores. She said she remembered pushing her way through and trying to get out of the single door and being told to shut up, laughed at and being pushed. She said she remembered the man that led her into the caravan as being one of the group pushing her back, laughing and telling her to shut up.
She said that when the first man started to force intercourse, there were men everywhere and she could see them undoing their jeans at the same time. She could not recall their faces but noticed their dark t‑shirts. She said she blacked out at that point. She blacked out several times; she would start coming to and then would see another man and would pass out again. She was forced to have vaginal and oral sex with a number of different people at different stages through the night. She recalled hands on the back of her neck forcing her head onto different people to give them oral sex and she remembered a man trying to have anal sex with her. With some of them she could remember other men in the caravan; for a few of them she could not recall seeing or sensing anyone else there.
The man who tried to have anal sex with her was the second to last. She said that the last man to have intercourse with her was a "big guy with a tattoo on his arm" (it was common ground she was describing the applicant). She said she did not remember anyone else being in the caravan at that time. At the start however, she had told all of them that she did not want to be there. The large man with the tattoo was there when she said that. She looked at him and said "Let me out. Why am I here? What are you doing?" She said she was angry and screaming at them. She could not recall saying anything specific to the last man to have intercourse with her, although she recalled he was saying something to her but could not remember what it was.
When the last man left she passed out again. When she woke, the larger man with the tattoo on his arm turned and told her to hurry up and get dressed before more of them came back.
She said that when she returned to the bar she saw Ms P sitting on the same bar stool and noticed that Ms P had a swollen eye. She briefly told her what happened in the caravan before they were led outside by the large guy who had led her into the bar.
The complainant said they went to the cafe because they were too frightened to return to their room at the York Hotel until daylight and they needed to be around people. She recounted being threatened at the cafe and explained that later, when they returned to their hotel room, they showered, she removed the tampon and disposed of it and before trying to get some sleep she put her clothes into a plastic bag which she uses to put her laundry in when travelling.
In cross‑examination the complainant said that she and Ms P had two bottles of wine at the Tart 'n' Miner. She recalled her police statement read she was speaking with a person who worked at the mines at the super pit and described him as "the second man" who "was a larger man and quite handsome". When it was put to her she agreed that in her police statement she did not specifically state that the larger man had intercourse with her but had only described him as one of the pack. However, she agreed that she had told the jury in her evidence‑in‑chief that the large man was the last person to have sex with her. She identified the applicant as the large man to whom she had been referring and confirmed that he was the last person who had intercourse with her in the caravan.
Later in her cross‑examination she said that the applicant was on top of her on two occasions - at the end of the incident and also another time earlier. She denied that was the first time she had mentioned that and repeated that he had sex with her during the incident and then again at the end. Asked why she did not say that during her evidence‑in‑chief, she responded that it was because she was not provided with the opportunity. Counsel put to her that she had told Ms P that she was having sex with the applicant when the door opened and other men came in, pushed the applicant off and began taking it in turns to have sex with her. She replied that she could not recall that happening and disputed telling Ms P that it had occurred. She denied that she had willing sex with the applicant and denied that she was having sex with him when the others entered.
There were other matters put to her in cross‑examination which she either denied or said she could not recall happening. For example, it was put to her that she told Ms P that the applicant was going to give them a lift home but she said she could not recall that. She denied describing the applicant as the "handsome one" and said she had referred to him to the police as the nicer looking one, although the word "handsome" was in her statement.
It was put to the complainant that when she and the applicant left the caravan, she did not go back inside the clubhouse, but met Ms P as she was coming out. The complainant denied that; she repeated that the applicant led her back into the clubhouse where Ms P was still sitting on the same stool.
The complainant agreed that she took a drink from a can of UDL (rum and coke) one of the men offered her at the Exchange Hotel, but denied that she drank the whole can. She could not recall sitting on the applicant's knee and denied kissing or cuddling him. She said she remembered him sitting across from her at a round table and did not remember being physically close to him.
Senior counsel put to her that she seemed to be suggesting in her evidence‑in‑chief that the glass of wine the applicant had given her had "some effect" on her, to which she responded (AB 78):
"That’s right. I felt like I was drunk. I've never felt like that in my life from anything I've drunk."
It was put to her that the account of the events and places given in her police statement was far more descriptive than her evidence. She replied that she and Ms P did not know Kalgoorlie well enough at the time to know the names of places or where things were. She had described them to the police officer taking the statement, who then told her the name (for example, of the Exchange Hotel) and the officer then put that in the statement.
When first asked about her examination by Dr Ng on 23 July, she said she had told him she had a tampon inside her during the incident. Senior counsel returned to the point later in the cross‑examination (AB 99):
"I suggest to you you didn't mention it at all to Dr Ng?---I told him that I had my period.
You swore on oath earlier that you told him specifically about having a tampon in you, didn't you?---Yes, that's like I said. I can't remember every word I used when I spoke with him but he knew that I - - -
Do you tell - - -?---He knew.
Do you remember - I asked you a question earlier this morning - whether you told Dr Ng that you had a tampon inside you and you said, 'Yes, I did.' Did you give that evidence?---Yes, I did.
Yes, and I'm suggesting to you that you did not tell him?---He knew I had my period. I told him.
It's a different thing about having a period. I specifically asked you about having a tampon inside you and I suggest to you you did not tell him about that. Correct?---I told him about it because I always use them. That's all I use.
I suggest to you you didn't tell him that you had a tampon in. Do you dispute that?---Yes, I do."

Finally, it was again put to the complainant that she had not mentioned the applicant specifically in her police statement as one of the men who had raped her and had not so identified him until she gave evidence at the committal hearing, because she knew she had consensual sex with him. She denied that.
In her evidence, Ms P (then 46 years of age) said that after they had been at the Exchange Hotel for some time on the second occasion, the men wanted to leave and go to another bar. They did so, although she could not recall the name of it. She danced with the complainant. She said the men then started to leave and the complainant was going with them, so she followed. They got in the back of a utility. The complainant seemed "high and happy … how you would after you'd had a few drinks. She was sitting down and she seemed like euphoric, like you would if you'd had a few drinks and you were partying …". They drove through an industrial area and pulled up at a big tin shed with a fence around it. She said she did not know they were going to the Gypsy Jokers' clubhouse and would not have wanted to had she known, although she did know that the men were Gypsy Jokers because they had mentioned that earlier in the night. She said that shortly after they went to the clubhouse, the complainant left and went outside with the applicant. Ms P stayed at the bar and talked to the man behind it. She saw men coming and going. The only man she did not see come in and out was the applicant. When they arrived at the clubhouse there were 10 to 15 men there, but at one stage, towards the end of the night, there were no men in the bar except the barman. Eventually the complainant came back inside with the applicant and a few of the others came trailing in afterwards. Ms P had no idea of the time, but it could have been at least two to three hours. Later she insisted it was at least two hours.
Ms P said that she did not have any physical contact with any of the men during the evening other than the barman, when he punched her twice in the face, knocking her down, at which point she moved away from the bar so he could not reach her. She was standing in the middle of the room when the complainant returned.
Her testimony was that when the complainant returned to the clubhouse she apologised to Ms P, came right up to her ear and said "Look I've just been pack raped". According to Ms P, the two of them left the shed and went into the car park area. The gates were open. The applicant went to a car. She thought that may have been the car in which he was going to drive them home, but there were "lots of guys" in it and she did not want to get in a car with lots of men. At the same time a couple of 4‑wheel drive vehicles, trucks or utilities, with men in them were arriving. The women were standing near the gate, it was dark and the men were distracted, so she said to the complainant she did not really trust getting into the car with the applicant and the other men and they should just get away themselves, which they did. They ran up the street. They ended up at a laboratory where a man was operating a forklift truck. They subsequently got a taxi from the laboratory to a café in Hannan Street called Monty's.
While they were in the taxi, the complainant told her what had happened at the clubhouse. She said that "the big guy" had asked the complainant to go outside with him.
As Ms P described it:
"… She said that he'd asked her to come outside with him and she wasn't aware of why and that she thought he was probably just going to show her around and show her some bikes or something, but he took her into a caravan and she told me that she was with him in the caravan and they were together and I don't know how much time went past but she said in a while the guys came in through the door and one of them came in and pushed the big guy off her and she wanted to get up but they held her down and they started to take her clothes off and one of them threw her top right away and she told me that they were all standing around her with their pants down and she was held down against her will and they started taking turns having sex with her and she was against her will forced to have vaginal sex, oral sex, and she said one of the guys - Slug said, 'Look, we're not trying to hurt you. We're just …
Do you recall her telling you anything else that actually physically happened to her?---Well, at one stage the guys must've left the caravan but the big guy was still there and he told her to hurry up and put her clothes on, to get out before the rest of the guys come back and he was going to take her home."
In her cross‑examination, asked about what happened when they returned to the Exchange Hotel, she said she could not recall if the complainant was sitting on the big guy's knee but it may have occurred. She could not recall seeing any affection between them. Asked about saying in her police statement that after leaving the Wild West Bar in the Exchange Hotel they went to Club 151, she explained she had no idea what it was called at the time but thought she was told when she made her statement. In the utility, the complainant was seated next to the big guy who had his arm around her, but that might have been just to steady her because it was 'quite rocky' in the back. She repeated that at the clubhouse, when the complainant returned, she told Ms P that the big guy was going to drive them home and said that again when they went outside. She repeated in cross‑examination that the complainant told her in the taxi that she was with the big guy in the caravan and they were together when the door opened and some other men came in, one of them pushed the big guy off and they all took it in turns. She says the complainant said the big guy apologised and said that was not supposed to happen. Asked again, she repeated she was standing more or less in the centre of the clubhouse and was not sitting on a stool when the complainant returned.
Melanie Roberts was the waitress at Monty's Cafe in July 2000. She gave evidence that in the early morning of 22 July 2000, two women came in to the cafe. They were a bit shaky. They wanted cocktails but the liquor licence had finished at 5 am. One of the women had a black eye and they had been crying and were upset. A man came in and talked with them (or one of them) and then left. After he left the woman he had spoken to was crying and shaking. The other one was sitting at the table.
The next prosecution witness was Sidney Reid, who at the time was a nominee of the Kalgoorlie chapter of the Gypsy Jokers. A nominee is someone nominated for membership who, whilst a nominee, is a "lackey" required to do duties around the clubhouse and the like. The main spokesman for the Kalgoorlie chapter was Graeme Slater. James Manson ("Spud") was the treasurer. The applicant was a full member as were Billy Grierson and "Pommy" Mick. Two other nominees were Kurt and Colin.
As Reid arrived at the club that night the others were already there and the applicant was just walking out with the complainant. He just greeted the applicant and continued inside. He had been out to get some alcohol and other items to stock the bar fridges. The woman who walked out with the applicant was staggering a little, although he would not say she was "blind rotten drunk or anything" but she was "happy". There was another woman sitting in the bar drinking with the other people in the clubhouse. Reid went behind the bar and started stacking the fridges. After a while Spud, Slater and Col went out. They made a comment that they were going to see what "the love machine" was up to. That was possibly 20 minutes or a little bit after Reid had arrived. Colin and Slater returned not long afterwards. A little while later Slater told Reid to take some drinks out to the caravan. He did so. When he walked into the caravan the applicant was dressed standing beside the bed. Spud and the woman were on the bed. Spud was on top having sex with her. She was on her back. She did not appear to be putting up a fight but was moaning. Reid said to the applicant that he thought they might be getting thirsty so he had brought some drinks for them. According to Reid the applicant "just had a bit of a chuckle" and Reid said he would leave them to it and left. He returned to the clubhouse and went behind the bar serving drinks. Not long afterwards Spud came back into the clubhouse. Reid was still behind the bar and turned round and looked at a security monitor positioned to give a view into the yard towards the front gate and on that saw the applicant and the complainant leaning against a car talking. He then heard a bit of a thump and when he turned around Ms P was on the floor. Slater told someone to "grab the f… thing and piss it off", so either Kurt or Colin took her to the door and "chucked her out". On the monitor Reid could see her walk over to where the complainant was talking to the applicant. Then the two of them walked off towards the front gate. The applicant followed a bit but then returned inside.
Sometime later, Reid said, Slater received a telephone call. He then told the group standing around the bar (which included the applicant) that he had just received a telephone call from a taxi driver who had picked up the two girls who had mentioned something about going to the police. Slater told Reid to take Colin and go to Monty's Cafe where the two girls had been dropped off and tell them that the men knew about the conversation in the taxi and to not go to the police and to just forget about it because it would not be worth their trouble. Reid said he did so.
Asked whether he had had any discussions with the applicant in the days following the incident he said that:
"…He was just pissed off that Spud sort of takes over things at some stages when women come to the clubhouse, like, you know. If a girl comes down there and puts out for one and she doesn't put out for all of them, well, she gets a backhander and gets told to fuck off and shit like that.
That was Spud?---Yeah."
Cross‑examined, Reid said that he is no longer a member of the Gypsy Jokers. He agreed with the suggestion put to him that the applicant had told him that he and the girl had been having sex together in the caravan and was complaining about what had happened after that; he was complaining about Spud. Reid said that he had been at the clubhouse only for about an hour and a half before he left to go to Monty's Cafe. He repeated that when Spud had earlier mentioned in the clubhouse that he was going outside to check on the applicant and the woman, Kurt, Colin, Slim (that is Slater) and the woman at the bar were in the clubhouse. Then three of the men went out and two remained. Colin and Slater returned after a brief period of time and it was after that that Slater told Reid to take some drinks out. It was not long after he left the drinks in the caravan that Spud returned to the clubhouse.
In re‑examination Reid agreed that he was a good friend of the applicant when he was a nominee.
It is not necessary to refer to all of the evidence of the other witnesses. It should be noted, however, that a forensic scientist, Mr Alexander Bagdonavicius, explained that the mixed DNA result that he obtained from analysis of the sperm may have been as a result of the mixture of spermatozoa. The major component found was spermatozoa of the applicant; the minor component was potentially that of a third person. In re‑examination he qualified that by observing that it is difficult to say how many people have in fact contributed to a minor component.
In his evidence, under cross‑examination, Dr Ng confirmed that there was no mention in his notes made upon his examination of the complainant that she had told him she had a tampon in at the time of the assault. He said that if she had mentioned that, he would have thought it to be significant and would have made a note of it. He did say, in re‑examination, that he could not recall mention of a tampon and therefore there was no comment in relation to it in his notes although he would have discussed the complainant's menstrual cycle and believed that she did tell him she was menstruating.
Before dealing with the substantive submissions as to the claimed inconsistencies and lack of credibility of the complainant, going to the ground of appeal, it is convenient to consider the relevant legal principles.
It is now established that the test formulated by the majority in M v The Queen (1994) 181 CLR 487 at 493 ‑ 494 is the appropriate test for determining whether a verdict is unsafe or unsatisfactory (Jones v The Queen (1997) 191 CLR 439 per Gaudron, McHugh and Gummow JJ at 450 ‑ 452). That test is whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. As pointed out by their Honours in Jones (at 451) the majority in M emphasised that it was not the function of the court to answer that question merely by an examination of the transcript of evidence and the exhibits and that the appeal court must not disregard or discount the fact that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses but on the contrary, must pay full regard to those considerations. The application of the test was explained by the majority Judges in M as follows:
"In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence." (References omitted)
Jones itself was a case in which, on the application of this test, convictions were set aside on the basis that they were unsafe and unsatisfactory, because, given the jury's finding of not guilty on one count, it was not open for them to be satisfied beyond reasonable doubt of the appellant's guilt on the other two counts. Each of the three counts were of unlawful sexual intercourse with a female child. The child was a pupil at a gymnastic academy at which the accused was an instructor. The trial took place five years after the first alleged offence. The complainant was aged between 11 and 12 at the relevant times. She made no allegation against the appellant until more than four years after the first alleged act. On her evidence, the acts of intercourse occurred when there was nobody present but she and the accused. It was held that the quality of her evidence on the second count was no higher than that upon the first and the third, so that once the jury found her evidence with respect to the second count lacked sufficient cogency to convict, the Crown's case on the first and third counts wore a different complexion. It meant that when her evidence could be set against other reliable evidence, it failed to carry sufficient conviction to reach the criminal standard of proof.
In MFA v The Queen (2002) 213 CLR 606 the High Court made it clear (at [89]) that the decision in Jones was fact‑specific and did not stand for any principle that in cases of complaints of a number of sexual offences, a jury must either accept or reject the entirety.
As Buchanan JA (with whom Charles and Chernov JJA agreed) pointed out in R v PMT (2003) 8 VR 50 at [25], there is no general rule that in cases in which several sexual offences depend upon the testimony of the complainant, acquittal on one or more counts compels the conclusion that the jury must necessarily have regarded the complainant generally as an untruthful witness or that her credibility was undermined in respect of the counts upon which they have convicted. His Honour said that the circumstances of the particular case may justify different verdicts and set out the following passage from the judgment of Gaudron, Gummow and Kirby JJ in MacKenzie v The Queen (1996) 190 CLR 348 at 367:
"… the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of civil and criminal trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense. Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury." (References omitted)
Senior counsel for the applicant referred to R v Whitehead [2000] NSWCCA 400 at [18] ‑ [20] for the proposition that where a jury has convicted an accused upon the uncorroborated evidence of a complainant in relation to some, but not all, counts in an indictment relating to a series of alleged sexual offences, this casts doubt upon the jury's verdict of guilty, which may constitute inconsistent verdicts. It was accordingly submitted that the rejection of the complainant's evidence in relation to the count upon which a verdict of not guilty was returned, casts doubt upon the acceptance of her evidence beyond reasonable doubt of the remaining count. Whitehead was certainly decided on that basis, but as the Court there made clear, whether there is inconsistency of that kind will depend entirely upon the evidence in the particular case. The proposition that inconsistency may appear in this way may be accepted; but the question is whether or not in the individual case an analysis of the evidence reveals that to be so.
It is submitted on behalf of the applicant that the different verdicts are "an affront to logic and commonsense". That phrase comes from MacKenzie v The Queen (supra), repeated in MFA v The Queen.
In MacKenzie, Gaudron, Gummow and Kirby JJ distilled a number of general propositions from a review of the cases (at 366 ‑ 368):
"1. A distinction must be drawn between cases of legal or technical inconsistency and cases of suggested factual inconsistency. The former will generally be easier to resolve. On the face of the court's record there will be two verdicts which, in law, cannot stand together. Examples include the case where the accused was convicted both of an attempt to commit an offence and the completed offence (R v Roach [1948] NZLR 677) or of being, in respect of the same property and occasion, both the thief and the receiver (R v Irvine [1976] 1 NZLR 677). There are other like cases (See, eg, R v Mitchell [1971] VR 46 at 51; Connecticut v Hinton (1993) 630 A 2d 593). Where technical or legal inconsistency is established, it must be inferred that the jury misunderstood the judge's directions on the law; compromised disputes amongst themselves; or otherwise fell into an unidentifiable error. The impugned verdict or verdicts must be set aside and appropriate consequential orders made.
2. Suggestions of factual inconsistency have arisen both as between different verdicts affecting the same accused and different verdicts affecting co-accused or persons tried separately in relation to connected events. …
3. 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 (Unreported, 13 December 1954) is often cited as expressing the test (See, eg, R v Hunt [1968] 2 QB 433; R v Durante [1972] 1 WLR 1612 at 1617; [1972] 3 All ER 962 at 966; cf Archbold, Criminal Pleading, Evidence & Practice, 43rd ed (1995), vol 1, par 4‑457):
'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.'
4. 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 (See Mercer v Commissioner for Road Transport and Tramways (NSW) (1936) 56 CLR 580 at 595; Ward v Roy W Sandford Ltd (1919) 19 SR (NSW) 172). 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 (R v Wilkinson [1970] Crim LR 176). 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 (Hayes v The Queen (1973) 47 ALJR 603 at 604‑605). 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 (R v Andrews Weatherfoil Ltd (1971) 56 Cr App R 31 at 40). 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 (R v Hunt [1968] 2 QB 433 at 436). 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 (Castles, An Australian Legal History (1982), p 56). Australian decisions have acknowledged that the role of the jury continues to be ameliorative in this respect. In R v Kirkman (1987) 44 SASR 591 at 593, 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.
5. 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 (R v Zundel (1987) 35 DLR (4d) 338 at 401‑402, applying R v McShannock (1980) 55 CCC (2d) 53 at 55-56; cf Mack v Elvy (1916) 16 SR (NSW) 313). 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 (R v Drury (1971) 56 Cr App R 104 at 105). It is impossible to state hard and fast rules. 'It all depends upon the facts of the case.'
6. The obligation to establish inconsistency of verdicts rests upon the person making the submission (See R v Hunt [1968] 2 QB 433 at 438; R v Kirby (1972) 56 Cr App R 758). But if, because of inconsistency between verdicts, the appellate court is persuaded that a verdict cannot stand, it must make consequential orders. In the case of a criminal trial, where the verdict has been followed by conviction and sentence, these must be set aside. Where the inconsistency is found between verdicts of acquittal and a verdict of guilty, the appellate court (statute apart) may not disturb the acquittal. It may be appropriate to enter a verdict of acquittal on the subject count(s) on the footing that this merely carries forward the logic of the other acquittal verdict(s). But once again, the relief which is appropriate depends upon the facts of the particular case." (My emphasis).

In respect of the present point, McHugh, Gummow and Kirby JJ said in MFA v The Queen (at [85] ‑ [86]):
"[85] The principles in MacKenzie apply to the present case. This is not an instance of 'legal or technical inconsistency', whereby the jury have returned two or more verdicts which, in law, cannot stand together. Nor is it a case where 'logic and reasonableness' necessarily dictated a common approach to the several verdicts concerned. In judging suggested inconsistency, this court said in MacKenzie that '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'. The court cited with approval the remarks of King CJ in R v Kirkman to the effect that juries may not always act 'in accordance with strictly logical considerations' or even 'in accordance with the strict principles of the law which are explained to them'. Juries sometimes give effect to 'their innate sense of fairness and justice' as well as to their sense of proportion and compassion.
[86] Nevertheless, cases do arise where different verdicts returned by a jury represent 'an affront to logic and commonsense' and suggest a compromise in the performance of the jury's duty. Such a conclusion 'depends upon the facts of the case'. There can be no 'hard and fast rules' except that the obligation to demonstrate inconsistency in jury verdicts rests upon the person making the submission." (References omitted)
Gleeson CJ, Hayne and Callinan JJ, having referred to the general propositions concerning the significance that may properly be attached to factual inconsistency between verdicts, identified by Gaudron, Gummow and Kirby JJ in MacKenzie, said it is to be noted that where an accused is charged with multiple offences, differences between the verdicts may not, in truth, involve inconsistencies even of a factual kind (ibid [33]). Their Honours went on to say (at [34]):
"Since the ultimate question concerns the reasonableness of the jury's decision, the significance of verdicts of not guilty on some counts in an indictment must necessarily be considered in the light of the facts and circumstances of the particular case. Furthermore, it must be considered in the context of the system within which juries function, and of their role in that system. A number of features of that context were emphasised in MacKenzie. They include the following. First, as in the present case, where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count. This will often be accompanied by a specific instruction that the evidence of a witness may be accepted in whole or in part. Secondly, emphasis will invariably be placed upon the onus of proof borne by the prosecution. In jurisdictions where unanimity is required, such as New South Wales, every jury must be satisfied beyond reasonable doubt of every element in the offence. In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. This may not be unreasonable. It does not necessarily involve a rejection of the complainant's evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant's evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others. Thirdly, there is the consideration stated by King CJ in R v Kirkman (1987) 44 SASR 591 at 593 and referred to in later cases, eg MacKenzie v R (1996) 190 CLR 348 at 367‑8; 141 ALR 70 at 84: it may appear to a jury, that, although a number of offences have been alleged, justice is met by convicting an accused of some only. And there may be an interaction between this consideration and the two matters earlier discussed. "
Their Honours went on to describe as "erroneous" the view that Jones is authority for the proposition that where multiple offences are alleged involving the one complainant, verdicts of not guilty on some counts necessarily reflect a view that the complainant was untruthful or unreliable, and that an appellate court should consider the reasonableness of guilty verdicts on the basis that the complainant is a person of damaged credibility. Their Honours said the proposition overlooked the attention to factual detail in the reasoning of Jones, the principles stated in MacKenzie and the considerations referred to in the last passage set out above.
It was not suggested there was here any legal or technical inconsistency between the verdicts. The submission is in substance that the verdicts are logically or factually irreconcilable and, or alternatively, taken as a whole the complainant's evidence displays such inadequacies as to lack probative value to such an extent that there is a significant possibility that an innocent person has been convicted (M v The Queen (supra), 494).
It was not disputed at trial that the complainant had been sexually assaulted in the caravan by a number of men. On her own testimony, the complainant kept passing in and out of consciousness as various men were having intercourse with her; she could not recall their faces. The events took place over a period of time. Quite apart from the effects of alcohol or anything else she may have been given, the experience would have been traumatic in the extreme. She kept describing the applicant as one of the men having intercourse with her as the "big guy with a tattoo on his arm". In her initial statement she had not identified him as one of those who had sexually assaulted her. She did not so identify him until the preliminary hearing. At trial, in cross‑examination, she described him as having had non‑consensual intercourse with her twice. Although she advanced an explanation for those apparent discrepancies, the jury might well have felt that in the context of what was happening to her, her identification of the applicant in that specific way was not sufficiently reliable to satisfy them of it beyond reasonable doubt.
The evidence in respect of the deprivation of liberty count was different. That was something which was alleged to have occurred at the commencement of these events. She was with the applicant in the caravan at the very beginning. It was he who had taken her there. She described him as one of the men who pushed her back, laughing, when she tried to get out of the caravan. Her evidence was that she was angry and screaming at them to let her out. Significantly, although there were several aspects of Reid's evidence which the jury might not have been prepared to accept, his testimony did confirm that the applicant was present in the caravan, standing beside the bed on which Spud was having sex with the complainant, who was moaning, and that the applicant "had a bit of a chuckle".
If this was the view of the evidence taken by the jury - which it was open to them to take - there would be no inconsistency between the verdicts on the two counts. I would not uphold the first limb of the ground of appeal.
Senior counsel for the applicant addressed what he described as the major inconsistencies and lack of credibility in relation to the evidence of the complainant. The first was that the complainant described the applicant in her statement as "the handsome one" but in her evidence said she did not actually use those words when she was giving her statement, although she accepted that she had not corrected that reference before she signed the document.
The complainant had made three statements to police, dated 23, 25 and 28 July 2000 respectively. In each of the statements she described the applicant as about 6 foot tall, maybe more, with a solid build. She said he had dark brown hair which appeared short but could have been tied back, and "he had a beard and a moustache and his face was round and quite handsome". When it was put to her in cross‑examination that she had described him as "the handsome one" she said she had not used the word handsome but had described him as "the nicer looking one". She was then pressed on the fact that the same description appeared in each of the three statements and she had signed each as being true and correct. She maintained that although they were the words in her statement they were not the words she had used. Earlier she had explained the process involved was that she was asked questions by a police officer, who then wrote up the first statement, which she signed. She was later asked more questions and what she told the officer was incorporated in the first statement, to make the second, and so with the third. The "handsome" description remained from the first statement and she "didn't understand how things worked with statements at that time so [she] just left it". Whether or not this was a real inconsistency, and if so, whether it detracted from the complainant's credibility, was a matter for the jury. It is not something which on appeal would have to be taken as necessarily detracting from her credibility.
The next point relied upon is the conflict between the complainant's evidence and that of Ms P and Reid as to whether Ms P was sitting on a stool at the bar when the complainant re‑entered the clubhouse after she had been in the caravan. It is clear there is such a conflict between the evidence of the complainant and Ms P. The complainant said she came back into the clubhouse and Ms P was sitting on the same bar stool on which she had been sitting when the complainant left. Ms P's evidence was that she had been punched in the face by the man behind the bar and had then retreated to the middle of the floor in the bar area, which was where she was when the complainant returned. However, Reid's evidence was in conflict with them both. He testified that he heard a thump and when he turned around Ms P was lying on the floor. Slater said to throw her out the door and someone did. At this time the complainant and the applicant were outside by the side of a car, talking. Once again, these evidentiary conflicts were patently matters for the jury to evaluate, having regard to all the circumstances, including the state of intoxication of the participants and whether the complainant and Ms P were traumatised and distressed by what had happened to them.
Next, reference is made to the complainant's evidence that she removed a tampon from her vagina when she returned to their hotel room after the incident and that she mentioned to Dr Ng who examined her, that she had a tampon inside her at the time of the assaults. However, it is contended that Dr Ng disagreed that was said to him during the examination and that he would have made a note of it had it been said.
I have set out above (at [42]) what the complainant said about this in cross‑examination. When asked, she said she had told Dr Ng she had her period (at the time). Pressed about whether she had specifically told him she had a tampon inside her at the time of the assaults, she said she could not remember every word she used when she spoke to him; she said "he knew". Further pressed, she repeated that he knew she had her period because she told him. When asked again about the tampon specifically, she said she told him about it because she always uses them; that is all she uses. She disputed that she had not told the doctor about the tampon. For his part, Dr Ng said he would have discussed the complainant's menstrual cycle and believed she did tell him she was menstruating. Although if she had told him she was wearing a tampon at the time of the assaults, he would have thought it significant and would have recorded it in his notes, there was no mention of that in the notes.
There was an apparent conflict between the complainant and Dr Ng on whether she told him she had a tampon inside her at the time. Even if the jury accepted that if she had done so the doctor would have noted it, and therefore concluded she could not have, whether or not she was honestly mistaken about that or was being deliberately untruthful, had to be evaluated by them having regard to the actual content of her evidence, the circumstances of the examination, the lapse of time since then and their impressions of her as a witness. Once again, the apparent conflict is neither so stark nor so categorical as to necessarily signify a lack of credibility.
For the applicant it is then put that the complainant had testified her memory was affected after she drank a glass of wine purchased for her by the applicant and that she was unable to recall, for example, the names of the places she went to after the Exchange Hotel, but that her statement was specific in relation to those matters.
There is no point of substance in this. In cross‑examination senior counsel for the applicant referred the complainant to parts of her statements in which she had described leaving the Exchange Hotel and going to Club 151. He pointed out that in her evidence at trial she had said she had no memory of where she went or what the places were called. It was put to her that her recollection of the events at the time she had made her statements was far more descriptive of those matters than what she had told the jury. The complainant's response was that she and Ms P did not know Kalgoorlie at the time and did not know the names of the places they went. She was told later by someone in the police station and while she was making her statement. Her evidence was that when she described where she had been, the interviewing police officer said what it was and put that in the statement. Her evidence on this aspect was not challenged nor contradicted.
It is then said there was an inconsistency between the complainant's evidence at trial and her testimony on the preliminary hearing and that she omitted from her evidence‑in‑chief at trial that when the applicant led her away from the bar at the clubhouse, she thought he was going to "put the hard word on her". It was said this was inconsistent with the evidence she gave at the committal and that when questioned about this discrepancy during cross‑examination at trial, her response was that she was not given an opportunity to say that. However, it is submitted that she was directly asked during examination‑in‑chief what she was thinking at that point.
The actual cross‑examination was as follows (AB 83 ‑ 85):
"I suggest to you also that you went to look at the photographs that were on the wall in that clubhouse room at the end of the bar. That occurred, didn't it?---I don't recall getting off the stool until I was led off the stool.
You don't recall. Do you dispute that you got off the stool and went across and looked at the photographs?---Yes, I do because I don't remember doing that at all.
Because you don't remember doing it. I see?---I remember ‑ ‑ ‑
But as of - - -?---I remember clearly being led off the stool and that was the only time I got off the stool.
I suggest you walked over to the photographs to look at them and speak to Ralph Kometer about them. That's the case, is it not?---No, that's not the case.
At which stage you asked him whether there was somewhere private that the two of you could go. Correct?---That's not true. No, that's not true.
You told this jury that you don't know where you were going when he led you by the arm. Is that the case?---That's right, yes.
You don't know why he was leading you by the arm?---I just assumed he wanted to speak with me.
You just assumed - that's all you assumed, is it? That's all you assumed?---Well, yeah, it looked like he was just going to lead me near the pool table.
I see?---Why would I assume anything else?
It wasn't the case that you assumed that he wanted to talk to you about having sex?---I didn't know. I wasn't thinking clearly. I didn't really - I just - I was cold, I was tired, you know.
It wasn't the case, was it, that you were thinking he was going to put the hard word on you?---That always crosses a person's mind, like - - -
Did it cross your mind then?---It may have. I can't remember exactly everything I was thinking then.
It may have?---I can't be certain. I can't remember what I was thinking.
It may have crossed your mind. Let me suggest to you it crossed your mind because it was something that you were contemplating also. Correct?---The only thing I was contemplating was going home and sleeping. I was cold, I was tired. I just don't even know why I was there.
Did you say at the committal hearing that you thought he was going to put the hard word on you but that you'd be able to take care of it?---Yes, that's right.
Had you forgotten about that when you gave evidence yesterday?---No, I hadn't forgotten about it.
Well, why didn't you tell the jury that?---I don't know why. Just something that just doesn't matter. It's just - - -
It didn't matter. You told the jury you thought he was taking you to show you the pool table, didn't you?---Yes, I did. That's right.
The fact that at the committal hearing in 2002 you said, 'I thought he might be putting the hard word on me,' in relation to having sex didn't matter for this case. …
Did you say at the committal hearing:
The defendant came back inside and he came up to me and put his hand on my wrist, on my left arm, and pulled me off the stool. It wasn't in a rough way. He just sort of wanted to lead me away from the bar so he could speak with me.
Do you recall saying that?---That's right.
He took me outside, outside of the area and to the right to a caravan that was parked out the side.
Did you say that?---Yes.
I remember asking him where we were going. I don't remember his answer.
Did you say that?---Yes.
And you were then asked:
What were you thinking at this point?---I was thinking that he was going to put the hard word on me and I remember thinking that it wouldn't be a problem knocking him back because I've experienced it before and never had a problems [sic] with guys like that.
Did you say that?---Something along those lines. I can't remember my exact words.
You just didn't think you'd mention that in evidence yesterday to the jury. Is that the case?---I wasn't given the opportunity to say that.
Oh, yes, you were. You were given ample opportunity I suggest to you. You were asked precisely what you were thinking at this time, were you not?---I guess, yeah, but that didn't - - -
Yes. You didn't want to mention it, I suggest to you, because you know the truth is that's the very reason you were going to the caravan with Ralph Kometer. That's the reason you wanted to be there. Isn't that the case?---I thought we were in a bar area and that's where we were staying. I didn't know there was a caravan outside. I didn't know where we were going or what he was doing."
The evidence she had actually given in chief was (AB 31):
"After you said that you were handed the shooter and you don't recall whether you drank it or not, what happened then?---He came or the large guy came up to me and led me off the stool. He grabbed my wrist, my left wrist, and led me off the stool that I was sitting on and said, "Come over here. I want to speak with you," and I thought he was leading me over near the pool table.
Did you go with him?---Yeah, I did.
What happened when you got - did you go to that place, to the pool table?---No, he just kept me leading out the door. I asked him what he was doing and he said, 'Come with me,' like that, 'Come with me,' and I just followed, I guess.
Where did you ultimately go?---Into a caravan just outside, just outside the building.
Why did you go there with him?---I don't know why I was there at all. I don't know why I was doing anything I was doing. I can't explain that."

The complainant was recounting, in August 2004, events which occurred some four years earlier, and was being referred to evidence she had given at a preliminary hearing in August 2002. This was evidence of a kind which fell squarely within the province of the jury's subjective evaluation. There was nothing about it which was inevitably unacceptable, or which from a mere reading of the transcript necessarily detracted from the complainant's credibility.
The same is to be said about the next point advanced on behalf of the applicant, which is that in her evidence‑in‑chief she had said that when a few of the men had sex with her there was no‑one else in the caravan, but when it was put to her in cross‑examination that was the first time she had given that evidence, all she could say was that she could not say everything at once.
The complainant repeated in her cross‑examination that she had been forced physically onto the bed and multiply raped by numerous men and during that time she was going in and out of consciousness. She was then asked whether she was able to say by how many people she had been raped to which she said she could not say exactly because she did not know how many. It was clearly more than two or three but she did not know how many. She did not count them as they came in but when she was asked if it was "about 10" she said it would have been around that number - she did not know how many - it seemed like a lot.
It was put to her that she had never previously said that for a few of the men she had sex with she could not recall anyone else being present in the caravan and she confirmed there were times she came to when there was no‑one else in there other than the person who was having sex with her. When it was then put to her that she had never said that before in the previous four years, her response was "I can't say everything all at once".
So too, in respect of that aspect of the complainant's evidence in which she denied during cross‑examination that the applicant had arranged to drive her and Ms P home from the clubhouse. It was submitted that was inconsistent with Ms P's evidence to the effect that the complainant told her of this arrangement and she replied that she did not want to get in the car with the applicant and so they left the clubhouse on foot.
It is not at all clear from the transcript when the suggestion that the applicant would drive the two women home was said to have been made. On one view it might have been a reference to something he said earlier; on another it might have been a reference to something claimed to have been said after the sexual assaults. Either way, whether the complainant had in fact said something like that to Ms P, and if so whether in denying it at trial the complainant was being deliberately untruthful or merely confused or unable to recall, is not something which can be evaluated without the benefit of having seen and heard her and Ms P give evidence.
None of these matters, either individually or in combination, are deficiencies which lead to a conclusion that even allowing for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted. To the contrary, they are matters of a kind which the jury was well‑placed to evaluate.
The final particular point raised on behalf of the applicant in this regard is one of more importance. It was that during cross‑examination she said the applicant was on top of her on two occasions. When it was put to her that was the first time she had mentioned that fact, she responded that she had also said so at the committal hearing. She said that she mentioned that she had sex with him on one occasion and then there was a subsequent occasion that she had sex with him during the time that she was in the caravan. When it was put to her in cross‑examination that she failed to mention this second occasion during evidence‑in‑chief, she said she had not been given the opportunity. Furthermore, when it was put to her that she mentioned to Ms P in the taxi that she was together with the applicant when the other men entered the caravan and pushed him off, she denied saying that to Ms P. That was in conflict with Ms P's evidence.
It was common ground that the applicant did have sexual intercourse with the complainant. The forensic evidence confirmed that and it was admitted by the applicant. It was put to the complainant that the intercourse with him was consensual and that it occurred before the other men entered the caravan. The complainant denied consenting to intercourse with anyone, including the applicant, and denied that she had told Ms P that the other men pushed him off her. This aspect of her evidence, in the context of her description of the multiple sexual assaults and the circumstances generally, may well have figured significantly in the verdict of the jury on count 2. I have already dealt with the contention that it necessarily infected the verdict on count 1.
I would not uphold the second limb of the ground of appeal against conviction. I would grant leave to appeal against conviction but dismiss the appeal.

Application for leave to appeal against sentence

There are two proposed grounds of appeal against sentence. They are that:
1.the sentence imposed was manifestly excessive; and
2.the Judge failed to give sufficient weight to the delay between the making of the complaint and the charging of the applicant with the offence upon which he was convicted.
An order was made by McKechnie J on 13 October 2004 that particulars of ground 1 be provided. The particulars given were that:
"The applicant was sentenced on the basis that his presence aided and abetted others who physically detained the complainant against her will. This significantly diminished the Applicant's culpability which when considered in combination with matters of mitigation did not justify the imposition of an immediate custodial sentence."
As to the factual basis for sentencing, the Judge said (at AB 264):
"According to the evidence of the complainant, she was seated on a stool in the bar in the club. You grabbed her by her wrists and led her away. According to her she said that, as she was being led out the door she asked the question, 'What are you doing?' and you said, 'Come with me.' She was led into a caravan on the property. According to the complainant you went in first. She asked you what you were doing. She couldn't recall your answer but at that time she was standing up.
Other people came through the door, and it's not in dispute during the course of the evening the complainant was the subject of an horrendous sexual assault by a number of persons. She is not able to say how many persons. You were charged with a sexual penetration without consent in circumstances of aggravation, and you were acquitted of that and of course I take none of that into account in the sentencing process.
Additionally, you have not been charged with being a party to any of the offences allegedly perpetrated by others, and I don't take that into account - well, I don't take those offences into account when sentencing you. It's clear that you are not part of any of those offences. Nevertheless, on the jury's verdict, they have found that you were - you deprived the complainant of her liberty during the course of the evening and participated in that."
His Honour then turned to the applicant's antecedents, noting that he was then 27 years of age and had resided in Kalgoorlie for something like 10 years. He had worked as a plant operator and had a good work history, although he had ceased work whilst awaiting the outcome of the criminal prosecution. He had three children for whom he paid maintenance but no longer lived with any of the mothers of those children. His Honour referred to Mr Shirrefs' submissions on the applicant's behalf that others were engaged in sexual practices and because he remained in the caravan his presence constituted deprivation of liberty. His Honour accepted that to be the basis on which he ought to sentence the applicant. His Honour added that it was further said that by remaining there the applicant aided and abetted the deprivation of liberty by others and he accepted that the applicant should be sentenced on that basis. His Honour said he accepted what had been put to him by the applicant's counsel that the fact that others were engaged in sexual acts did not increase his culpability.
No doubt his Honour accepted that on the basis of submissions in mitigation by Mr Shirrefs to the effect that as the applicant had not been charged with aiding and assisting others to sexually assault the complainant it was not open to his Honour to sentence the applicant in respect of count 1 on the basis that the purpose of depriving the complainant of her liberty was to enable the others to commit sexual assaults upon the complainant.
However, his Honour went on to say that nevertheless the applicant had been present during the course of an horrendous assault and sexual attack upon her.
The Judge accepted there had been some delay and said he was taking that into account. He noted there had been a committal hearing which was at the applicant's request and that did not increase the penalty but did give some explanation as to the reason for the delay. He mentioned references which had been put before him and acknowledged they indicated that the applicant had a good work record. He accepted the submission by counsel for the applicant that he had been in a state of anguish and stress in relation to the matter and referred to the applicant's criminal history, commenting that it was not a long one and was in respect of convictions not really relevant to the matter before his Honour.
His Honour said that as the State prosecutor had pointed out (AB 265 ‑ 266):
"… my charge to the jury did not leave open the question of you being a party to other persons' deprivation of your liberty [sic], and they found that you directly participated in the deprivation of liberty.
The State doesn't suggest you were the only one and it doesn't suggest that it was preplanned and I accept that to be the case. I also accept the State's submission that, on the evidence of - the evidence of Mr Reid would indicate that you participated in the deprivation of liberty. It's the State's submission that in relation to this matter, only an immediate term of imprisonment is the appropriate penalty. Your counsel in submissions conceded that it was an offence for which a term of imprisonment was appropriate but made the submission that, by reason of other matters to which I have referred, it would be appropriate for that sentence to be suspended.
In my view, the offence is far too serious for there to be a suspension of the sentence in relation to this matter. As I have said, it was a serious offence and in the context in which I have put it, it was too serious an offence for a term of imprisonment, which I propose to impose, to be suspended. In relation to this matter I'm of the view that, prior to the Sentencing Legislation and Repeal Act 2003, the appropriate sentence would be a term of imprisonment of four years.
Under schedule 1 of the Sentencing Legislation and Repeal Act 2003 the court must impose a term that is two‑thirds of [the] term that would have been imposed had the old provisions been in operation at the time of sentencing. That reduces the sentence to a term of imprisonment of two years and eight months."
On ground 1 it was submitted on behalf of the applicant that the sentence was manifestly excessive because the Judge failed to give "sufficient weight" to a number of factors. These were specified as being the applicant's role and culpability in the offending and the seriousness of the offence; his lack of relevant previous convictions; his age, personal circumstances and family history and his education and employment history.
However, senior counsel concedes the Judge referred to "most" of those matters, but contends that the sentence imposed reflects that his Honour could not have given proper weight to them. In the absence of identification of any specific error, this submission really amounts to one that the sentence was manifestly excessive in all the circumstances. That indeed, was the submission ultimately made. It was further submitted that his Honour "struggled to rationalise" the verdict of the jury - it was submitted that it was never the State's case that the applicant was an aider or abettor, yet this was the (false) basis upon which he was sentenced.
Given the Judge's specific reference to the matters adumbrated, there can be no question but that he did take them into account. How much weight to give them was entirely a matter for his Honour.
While it is right to say that the State's case with respect to the deprivation of liberty was that the applicant was one of the men who stopped the complainant from leaving the caravan and that his purpose was to enable the other men to do what they wanted with her, the more favourable basis upon which he was sentenced was that urged upon his Honour by the applicant's own counsel. The applicant cannot now complain about that. However, even on the basis that the applicant's offence was aiding and abetting the other men to deprive the complainant of her liberty, by remaining in the caravan, it was a serious offence of its kind.
I accept the respondent's submission that, having regard to the seriousness of the offence, the need for condign punishment, and for general and personal deterrence, the imposition of an immediate custodial term of 2 years 8 months' imprisonment (equating to one of 4 years' imprisonment under the previous sentencing regime) cannot be seen as manifestly excessive. Although towards the high end, the sentence was within the range of a proper exercise of the sentencing discretion. This ground must fail.
The submission in respect of ground 2 is that there was a significant delay of almost two years between the date of the complaint and the laying of charges against the applicant. The situation is said to have been aggravated by the fact that both charges were serious and the delay caused the applicant considerable stress and anxiety. He was charged after a DNA sample was taken from him in relation to another subsequent matter, which sample was matched with DNA in semen found on the complainant's underpants. There was no evidence the applicant refused to provide a sample on any earlier occasion and so it was submitted the delay was not as a result of any action on his part. It was submitted that the Judge failed to give sufficient weight to this fact, and furthermore his Honour's reference to the committal hearing (which he attributed as one of the causes for the delay) was inappropriate, because having a preliminary hearing was the applicant's right, the exercise of which could properly diminish the effect of delay.
The last point may be dealt with first. It is of course correct to say that at the time the applicant had an entitlement to a preliminary hearing and that delay caused as a result of the exercise of that entitlement cannot be held against him. That is not what the Judge did. An offender is not entitled to a sentencing discount due to delay as the result of electing to have a preliminary hearing. It is clear from what he said that all his Honour did in that regard was to point out that, to the extent the delay was the result of that decision by the applicant, it was not something that could in any way count in his favour in mitigation. That was correct.
Delay or lapse of time between commission of the offence and the imposition of sentence without more is not a mitigatory factor (Bell v The Queen [2001] WASCA 40; Sell v The Queen (1995) 15 WAR 240). Lapse of time in combination with some other factor may be relevant to sentencing, but that will depend upon the circumstances of the particular case.
This is not a case of significant delay in which the applicant has been shown to have rehabilitated himself since the commission of the offence (cf R v King [2000] WASCA 130; Duncan v The Queen (1983) 47 ALR 746).
Here the complaint was made promptly.
The overall period from offence to trial was some 4 years.
The delay of almost two years in charging the applicant was primarily a result of lack of identification evidence, which did not become available until the procedures authorised by the Criminal Identification (Identifying People) Act 2002 (WA) came into force in June 2002.
The ensuing period of approximately two years included the time involved as a result of the applicant's election to have a preliminary hearing and the time for listing a jury trial. There is nothing in the lapse of time here which reveals unfairness to the applicant calling for the extension of leniency (Wagenaar v The Queen [2000] WASCA 325, at [66] ‑ [67]).
This is not a case of significant delay, such as is not uncommonly seen in cases of sexual offences against young children reported many years later, when they are adults. The effect upon sentencing of such lengthy delays in cases of that kind was discussed by Anderson J in Bell v The Queen (supra).
At [8] and [9] his Honour summarised the position broadly:
"8 It is not altogether easy to reconcile the cases. However, I think it reasonably clearly appears from the authorities referred to that in the general run of cases, delay will attract a significant discount only where the sentencing court concludes that there has been real progress towards rehabilitation as such or where other favourable factors have positively emerged in the time between the offences and the passing of sentence.

9Where nothing more than mere lapse of time without any conviction is relied on for the exercise of clemency, the sentencing court could properly take the view that it was always open to the offender to give himself or herself up and accept his or her just deserts. Failure to do so and success in keeping guilt hidden ought not to be rewarded by sentencing discounts. "

In Bell there was a lapse of 25 years between the offences and the sentencing. The appeal against sentence was dismissed, the Court holding that the case was one of mere lapse of time, without any factors positively emerging in the intervening years (per Anderson J at [13], ibid).
In this case the lapse of time in combination with the applicant's conduct since the offence was not such as to show there was no need to address the requirement for personal deterrence (Bell (supra), at [5]). Certainly the time involved is not so long as to call for leniency to be extended because the offence is "stale" (Mill v The Queen (1988) 166 CLR 59, 64).
In short, the respondent's submission that there was no basis upon which the applicant's sentence could have been mitigated because of delay, must be accepted. Even so, the Judge did take the lapse of time into account in the applicant's favour and in so doing extended a degree of leniency to which the applicant had no genuine claim.
I would refuse leave to appeal against sentence.
MCLURE JA: I have had the advantage of reading the draft reasons of Roberts‑Smith JA. I agree with his proposed orders generally for the reasons he gives. However, I wish to make some additional observations on the applicant's contention that the verdicts are inconsistent and on the challenge to the sentence.
The applicant was charged with deprivation of liberty of the complainant (count 1) and sexual penetration of the complainant without her consent (count 2). The charges arose out of a continuing criminal episode in which the complainant was pack raped by a number of men in a caravan at the Gypsy Jokers' premises in Boulder on 21 July 2000. The applicant was convicted of deprivation of liberty and acquitted of rape.
It was contended for the applicant that the allegation of deprivation of liberty was "inextricably linked" with the allegation of rape, by which was meant the credibility of the complainant on both counts could not be

separated. I am satisfied that the two verdicts can stand together, there being a proper way by which the verdicts may be reconciled. To explain why, it is necessary to refer to the evidence.

It was not in dispute that the applicant and the complainant were alone together in the caravan at the outset. The complainant's evidence was that she heard the door of the caravan open and a group of approximately 10 men entered. The complainant said in evidence‑in‑chief:
"What did you do when you saw them walk in?---I looked at the [applicant] and I said, 'What's going on?' I kind of knew at that point, but ‑ ‑ ‑
All right. You asked him what was going on. Did he reply?

---I don't remember his response immediately, and then I asked him again. I remember asking him what he was doing and he said he thought he'd locked the door and I said, 'What do you mean?' He said, 'This wasn't supposed to happen tonight,' and that's when I sort of felt that something was up, like really seriously.
All right. By that stage were all of the group in the caravan?

---It just seemed like they all just kept coming in. Yeah, they were kind of blocking the doorway, so I couldn't tell if any more were coming in.
What did you do after the [applicant] said this thing to you?---I started to get pretty angry, I guess. It was fear and anger all at once. I just started going off at them basically, telling them to let me out.
Did you do anything?---I remember pushing my way through trying to get out, but it's all - - -
Incidentally, how many - sorry - exits were there to the caravan that you're aware of?---Just one door.
So you tried to push your way out. Did you succeed?---No, I just got told to shut up basically, and I was getting laughed at and I just remember being pushed.
Do you recall at all if you recognised any of the men that were pushing you back or laughing or telling you to shut up?---Yes, I remember the one that led me in there, the [applicant].
Do you recall specifically what he did?---At that time he was just part of the group. I just saw him as being part of the group. They were all in on it together, so - - -
At that stage did he touch you at all?---At that stage, no, I don't recall.
At that point were you still in the main area of the caravan with the table and chairs?---At that point I was on the bed. I'd been pushed on to the bed.
All right. Perhaps we need to clarify that then. You said that you tried to get out?---Yeah.
How did you end up on the bed?---I was pushed.
Do you know by whom?---No, I don't know which one."
Later in examination‑in‑chief the complainant returned to this stage of the episode as follows:
"Did you tell any of them that you didn't want to be there?

---I told all of them.
When?---At the start.
At the start?---At the start.
Was the larger man with the tattoo [the applicant] in the caravan when you said those things?---He was.
What exactly did you say?---I looked at him and I said, 'Let me out. Why am I here? What are you doing?'
Did you say anything else?---I was screaming at them after they started laughing at me just to let me out, that I wasn't one of their bikie whores and not to touch me or they would regret it. I was pretty angry."
It was the events at this early stage of the episode that the State relied on in opening for the charge of deprivation of liberty.
The complainant's evidence was that during periods of consciousness in the course of repeated non‑consensual sexual penetration, she was aware that the applicant was present in the caravan. She also said the applicant raped her twice that night, the first time at around the middle of the continuing episode and the second time at the end, the applicant being the last person to rape her. The rape the subject of count 2 related to the second occasion. Some considerable time later, the police obtained DNA evidence that linked the applicant to the events on the night in question.
The applicant did not give evidence at trial. There was no challenge at trial to the complainant's evidence that she had been pack raped and no challenge to her evidence that she was unlawfully detained in the caravan. The only issue was the applicant's involvement. The defence case, put in questions to the complainant, was that she had consensual sexual intercourse with the applicant in the caravan before the group entered. The complainant denied that she had consensual sexual intercourse with the applicant as alleged or at all.
A number of matters were relied on by the applicant as undermining the complainant's credibility on the rape charge which linked with the defence case that the complainant had consensual sexual intercourse with the applicant. They included, firstly, the fact that the complainant made three statements to police shortly after the events the subject of the charges in which the complainant did not mention that the applicant had raped her. This is in the context of the complainant having identified the applicant from a photoboard as a person who was present in the caravan at the relevant time. Secondly, the first occasion on which the complainant made an allegation of rape against the applicant was after he had been charged as a result of the DNA evidence. Thirdly, the complainant said for the first time in cross‑examination at trial that the applicant had raped her twice on the night in question, being a reference to the uncharged act. Fourthly, Ms P's evidence that the complainant told her in the taxi after leaving the Gypsy Jokers' clubhouse that the men who came into the caravan "pushed the [applicant] from on top of her". Relying on those matters (as well as positive comments made by the complainant to police as to the applicant's looks and the time spent in his company before going to the clubhouse), the defence case was that the complainant had failed to mention in her statements to police that the applicant had raped her because the intercourse was consensual.
The primary focus at trial was on the rape charge and most, if not all, challenges to the complainant's credibility (honesty and reliability) are on matters directly related to the rape charge. Indeed, there was no direct challenge in cross‑examination to the complainant's evidence relied on by the State on the charge of deprivation of liberty. To the contrary, her evidence in cross‑examination was consistent with her evidence‑in‑chief on that count.
It was put to the complainant in cross‑examination that before the group entered, the complainant and the applicant were on the mattress discussing work opportunities for her at the mine where he worked and that he would meet her that morning at 6.30 at her hotel, to which she responded:
"I don't recall that and if he had to be at work, why was he still in there with all the others and didn't let me out if he had to be at work? Why wouldn't he let me out?"
Notwithstanding there were a number of grounds for challenging the reliability of the complainant's identification of the applicant as one of the rapists, the DNA evidence is likely to have been determinative - unless the jury had a reasonable doubt as to whether consensual sexual intercourse had occurred. So, the central question is whether a reasonable doubt (or the rejection of her denial) on that score renders the guilty verdict on deprivation of liberty inconsistent. In my view, the answer is no, for a number of reasons. Firstly, there was no direct challenge to the complainant's evidence on deprivation of liberty. Secondly, the defence case of consensual sexual intercourse put to the complainant was insufficiently detailed to be necessarily inconsistent with the complainant's evidence on deprivation of liberty. Thirdly, there was no challenge to her evidence that she was pack raped; her response when confronted by a group of men whose intentions she (rightly) suspected was compelling; the applicant's continued presence in the caravan whilst the complainant was being raped was corroborated by Mr Reid; in those circumstances, prior voluntary sexual intercourse with the applicant is not inconsistent with the applicant detaining the complainant.
In those circumstances it cannot be said that a failure to be satisfied beyond reasonable doubt on the rape charge is inconsistent with a finding of guilt on the deprivation of liberty charge.
On the challenge to the sentence imposed on the applicant, the trial Judge's reasons have to be seen in the light of submissions made by senior counsel for the applicant. The submissions were to the effect that the not guilty verdict on the rape charge must have meant the jury was not satisfied beyond reasonable doubt of the complainant's evidence relied on by the State to establish deprivation of liberty. He said the only basis for a finding of guilty on that charge was the applicant's continued presence in the caravan whilst others were detaining and raping the complainant; that is, the applicant was aiding and abetting the deprivation of liberty being perpetrated by the other men. For the reasons already given, I do not accept that submission. Although the trial Judge appears to initially accept the correctness of the proposition, it is clear he did not sentence on that basis. He said:
"… [M]y charge to the jury did not leave open the question of you being a party to other persons' deprivation of your liberty [sic], and they found that you directly participated in the deprivation of liberty."
The applicant was, correctly in my view, sentenced on that basis. I too would refuse leave to appeal against sentence generally for the reasons given by Roberts‑Smith JA.