Mitic v The Queen
[2011] VSCA 373
•30 November 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2011 0045 | |
| TOMICA MITIC | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | NETTLE JA, COGHLAN and LASRY AJJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 17 November 2011 |
| DATE OF ORDERS | 17 November 2011 |
| DATE OF REASONS FOR JUDGMENT | 30 November 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 373 |
| JUDGMENT APPEALED FROM | R v Mitic (Unreported, County Court of Victoria, Judge Murphy, 23 February 2011) |
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CRIMINAL LAW – Conviction – Two counts of rape – Whether jury verdict unsafe and unsatisfactory – Whether judge erred in directing jury as to evidence of complaint and distress – Consent – Whether reasonably open on evidence to exclude reasonable possibility that complainant had consented – Crown concession – Verdict of acquittal entered – R v Francis [1993] 2 Qd R 300, referred to.
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| Appearances: | Counsel | Solicitors |
| For the Appellant | Mr P J Doyle | Patrick W Dwyer |
| For the Crown | Mr G J C Silbert SC with Ms K Argiropoulos | Mr C Hyland, Solicitor for Public Prosecutions |
NETTLE JA:
At the conclusion of argument in this matter, on 17 November 2011, we allowed the appeal, set aside the convictions sustained below and ordered that there be a judgment of acquittal. We announced then that we would publish reasons at a later date. These are those reasons.
Introduction
Following an eight day trial in the County Court at Melbourne, the appellant (now aged 24) was convicted of two counts of rape. He was tried with a co-accused, Peter Stojkovski, who was convicted of one count of rape of the same complainant. On 23 February 2011, the appellant was sentenced as follows:
Charge on Indictment Offence Verdict Sentence Cumulation 1 Rape
[s 38(1) Crimes Act 1958 (Vic)]Guilty 3 years 6 months’ imprisonment None 2 Rape
[s 38(1) Crimes Act 1958 (Vic)]Guilty
4 years imprisonment Base Total Effective Sentence: 4 years Non-Parole Period: 2 years Pre-sentence Detention Declared: 5 days
On 8 July 2011, Buchanan JA granted the appellant leave to appeal against conviction on the following grounds:
1.The jury’s verdict is unsafe and unsatisfactory, and cannot be supported having regard to the evidence.
2.The learned trial judge erred in directing the jury on the meaning of consent, in that:
a. He invited the jury to consider bases on which the complainant might not have consented other than those set out in section 36(d) of the Crimes Act 1958 (Vic); and
b. He failed to direct the jury adequately on the relevance of intoxication to consent.
3.The learned trial judge’s failure to direct the jury as to the applicable standard of proof in the circumstantial case against the accused gave rise to a miscarriage of justice.
4.The conduct of a joint trial of the accused and his co-accused, Peter Stojkovski, gave rise to a miscarriage of justice.
Overview of the facts and proceedings
On 24 April 2008 the complainant attended a boat cruise with friends from approximately 7.00pm until 11.30pm. She socialised and drank alcohol during the cruise, and described herself as very drunk on leaving the boat. She continued on to ‘Fix’ nightclub with friends. While there, she danced with friends and consumed more alcohol. At some point, she went outside for a cigarette and met the appellant, who was at the nightclub with his friends.
At around 2.30am, the nightclub was closing, and the complainant’s friends had left. The complainant went with the appellant in a car driven by the co-accused, Stojkovski. The complainant described herself as quite drunk but still wanting to party. The appellant’s brother, a friend, Igor Gorgievski, and his girlfriend, Stephanie Trajchevska, were also in the car. A photograph showing the complainant kissing the appellant in the vehicle was tendered in evidence at trial. The complainant said that she could not recall much of the journey from the nightclub.
After dropping off the appellant’s brother, the group continued to Igor Gorgievski’s home. Gorgievski’s brother, Danco, had been at the nightclub but had arrived home earlier. The complainant said that she recalled walking up the driveway to the house and, once inside, feeling tired and being seated on a couch in the rumpus room watching television. Evidence was given at trial that the complainant was kissing and hugging the appellant as they sat on the couch. The complainant said that she remembered dancing with the appellant, kissing and hugging him and some ‘mutual touching’, though she could not recall where these activities took place.
In evidence-in-chief, Danco Gorgievski said that after some time (the length of which he could not be certain) the complainant asked if she could go to bed. He said that he helped her get up, because when she got up she was dizzy and stumbling, and assisted her into his bed. He said the appellant followed and got into bed with the complainant and, at a later stage, so did the co-accused. He said the appellant and the complainant were alone in his bedroom for up to between 45 minutes and an hour before the co-accused went in. He also said that he cautioned the appellant and co-accused to watch themselves, because the girl was very tipsy, and not to do anything stupid.
In cross-examination, Danco Gorgievski agreed that the appellant may have asked his permission to go to his bedroom, and may have gone to the bedroom together with the complainant, but he could not remember. He said that he remembered taking the complainant into the room by himself and that the appellant was not with the complainant when he went into the room. But he agreed that he could be mistaken. In re-examination, he repeated his earlier evidence that he had taken the complainant to his bedroom.
In a record of interview, the appellant stated that the complainant had asked him to go to the bedroom, and that he and the complainant had gone to the bedroom together, after he had asked Danco’s permission to do so. The co-accused, Stojkovski, gave evidence-in-chief which corroborated that version of events. He said that the complainant had said to the appellant ‘take me to your room’ and that the appellant then sought Danco’s permission.
The complainant said that her next recollection was of waking up in a double bed with the appellant and co-accused. The co-accused was having intercourse with her and had ejaculated. She was still wearing her dress, but not her underpants. She described herself as a heavy sleeper and said that she was shocked by what she woke up to find, because she had had very little do with the co-accused during the night. She got out of the bed, yelling and angry, and immediately left the house.
In evidence-in-chief, Danco Gorgievski said that he heard somebody get up at 5.00 or 6.00am. He he jumped out of bed because the phone started ringing. Within a split second, the complainant got up and started screaming that she had been raped, and then stormed out of the door and called ‘000’.
The complainant’s telephoned ‘000’ (the call was recorded as being made at 6.00am) in a distressed state and complained of being raped. The police arrived and met the complainant at the front of the house where she was observed to be extremely upset, crying and shaking. She gave an account of events to police and was taken to hospital.
Police interviewed the appellant and co-accused later that morning. In his record of interview, the appellant freely admitted that he had digitally penetrated the complainant (count 1), and had penile vaginal intercourse with her (count 2), after they had gone to bed together earlier in the morning and were alone. He said that the complainant had consented. He said that he did not ejaculate because he was ‘zonked’ and had fallen asleep during intercourse, only waking when he heard the complainant screaming.
The co-accused denied having touched the complainant but later admitted having intercourse with her, and claimed that it was consensual.
The complainant was medically examination by Dr Odell later that morning. Her blood alcohol concentration reading at 9.25am was 0.13%. Dr Odell, gave evidence that at the time of the alleged offences, the complainant’s blood alcohol would have been in the range of between 0.165% and 0.2% range. But he stated that, due to a number of factors concerning the consumption of alcohol in any given case, and factors unique to each individual, he could not predict whether a given person would or would not be capable of consenting to intercourse at any particular blood/alcohol concentration level.
DNA which matched the complainant’s DNA was found to be present on a swab taken from the appellant’s penis. Semen matching the co-accused’s DNA was located on a high vaginal swab taken from the complainant.
The complainant denied intending to have sexual intercourse with the co-accused. So far as the complainant was concerned, however, the most that she could say was that when she had left home to go out at the beginning of the night in question, it had not been her intention to have intercourse with anyone, and she could not remember whether she had consented or not consented to having sexual intercourse with the appellant or indeed whether she had had intercourse with him.
Grounds of appeal
It is convenient to begin with Ground 4 and then to deal with Ground 1. For reasons which will appear, it is unnecessary to consider Grounds 2 and 3.
Ground 4: Evidence of complaint and distress
Under the heading of Ground 4, it was contended that the conduct of a joint trial of the appellant and his co-accused, Stojkovski, gave rise to a miscarriage of justice because the evidence admissible against Stojkovski was much stronger than the evidence admissible against the appellant, and the jury would not have been able to keep the cases separate.
Counsel for the appellant submitted that the most significant evidence of that kind was of the complainant’s reaction upon waking up the morning after intercourse. Evidently, her reaction and complaint was confined to the fact that she had woken up to find Stojkovski having intercourse with her without her consent. She did not remember whether she had had intercourse with the appellant and she did not remember whether or not she may have consented to intercourse with the appellant. Consequently, nothing which the appellant may have done or not done to her was causative of her distress. The evidence was irrelevant and inadmissible in the case against the appellant. Yet it was highly prejudicial to him.
In particular, counsel argued, once the jury had heard the recording of the complainant’s distressed call to 000 (which was admissible only as against Stojkovski), and her evidence from the witness box as to her distress upon waking (which was also only admissible against Stojkovski), it would have been extremely difficult if not impossible for the jury to exclude the evidence from consideration when deciding the case against the appellant.
At the very least, counsel contended, the judge should have directed the jury explicitly that the evidence of distress and complaint was irrelevant and inadmissible as against the appellant and, therefore, to be excluded from consideration in deciding the case against him. So far from giving the jury directions of that kind, however, the judge directed the jury without exception that the evidence of complaint and distress was relevant to and could be used in support of the Crown’s case against the appellant.
As was frankly and fairly conceded by the Chief Crown Prosecutor who appeared for the respondent on the appeal,[1] the admission of that evidence coupled with the judge’s misdirection to the jury as to how they might use it against the appellant, was highly prejudicial to the appellant and certainly productive of a miscarriage of justice.
[1]But did not appear for the Crown at the trial.
Ground 1: Unsafe and unsatisfactory verdict
The nub of the argument put in support of Ground 1 was that, in the absence of any direct evidence of lack of consent by the complainant to sexual intercourse with the appellant, it was not open on the remainder of the evidence to exclude as a reasonable possibility that the complainant had consented. The highest the remaining evidence went was that the complainant was significantly drunk at the time of intercourse, possibly with a blood-alcohol concentration as high as between 0.165% and .2%, and stumbling and repeating her speech. But, as Dr Odell said, he could not venture an opinion as to whether that had deprived the complainant of the capacity to consent. And as counsel emphasised, in reliance upon the observations of the Queensland Court of Appeal in R v Francis;[2]
It is not correct as a matter of law that it is rape to have [sexual intercourse with] a woman who is drunk who does not resist because her submission is due to the fact that she is drunk. The reason why it is not is that that at least includes the case where the [intercourse] is consensual notwithstanding that the consent is induced by excessive consumption of alcohol. The critical question in this case was whether the complainant had, by reason of sleep or a drunken stupor, been rendered incapable of deciding whether to consent or not.
[2][1993] 2 Qd R 300, 305.
Furthermore, there was a substantial amount of evidence given by witnesses for the Crown which suggested that the complainant may well have consented. It included the evidence already mentioned that the complainant recalled dancing with the applicant, kissing and hugging him and some ‘mutual touching’; evidence that the appellant and his friends offered to drive the complainant from the club to her home but that she requested instead to be taken back to the place where the appellant was staying; and evidence of the complainant kissing and hugging the applicant while on the couch shortly before going to the bedroom. Danco Georgevski, who was the principal witness for the Crown apart from the complainant, gave further evidence which included that he had looked into the bedroom sometime after the appellant and the complainant had gone in and were in there alone and observed them apparently to be engaged in sexual intercourse:
Question: In this particular case she was Tom’s girlfriend and they were having, as far as you could see, a good time?---A: Yes.
Question: They were having - well, they were having sex?---A: Yes.
…
Question: And what happens, isn’t it, in fact, is that Peter comes to the door as well at that time so you’re both at the door and you look into the bedroom?---A: Yes.
Question: At that stage you can see, can’t you, what appears to be something sexual happening between Tom and the girl?--- A: Yes.
Question: And you can see the girl moving back, if you like, against Tom?---A: Yes.
The significance of the complainant being seen to be ‘moving back’ was that the appellant had told police in his record of interview that he and the complainant had intercourse ‘doggy-style’ and that he had been conscious of the door of the bedroom opening slightly shortly after he and the complainant were ‘getting into it’. Furthermore, there was nothing in what Georgevski said he saw which was inconsistent with the sexual intercourse being consensual.
In those circumstances, as the Chief Crown Prosecutor once again frankly and fairly conceded, it was not open to the jury to exclude as a reasonable possibility that the complainant had consented to intercourse with the appellant. Hence, they should have had a reasonable doubt as to whether the appellant was guilty.[3]
[3]M v The Queen (1994) 181 CLR 487, 493.
Conclusion
It followed that the verdict could not be supported having regard to the evidence,[4] and, accordingly, we ordered that the convictions be quashed and that a judgment of acquittal be entered.
[4]Criminal Procedure Act 2009, s 276(1)(a).
COGHLAN AJA:
I agree with the reasons of Nettle JA.
LASRY AJA:
I have had the benefit of reading the reasons of Nettle JA explaining why we made orders allowing the appeal on 17 November 2011. I agree with those reasons.
I only seek to add that the position taken by the Chief Crown Prosecutor during the appeal was, as Nettle JA observed, frank and fair. In response to the
appellant’s detailed submissions he immediately conceded the appeal should succeed. In my opinion, the concession was entirely appropriate – such an outcome was apparent from a reading of the material.
If that concession had been made in the respondent’s written submissions and filed at the time of the application pursuant to s 315 of the Criminal Procedure Act 2009 before Buchanan JA in July 2011, the appeal might have been able to be dealt with more expeditiously, bearing in mind, of course, that the appellant remained in custody during that time.
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