Mullins v The Queen - [2008] NSWCCA 302

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Mullins v R [2008] NSWCCA 302

FILE NUMBER(S):
2008/0568

HEARING DATE(S):
2 December 2008

JUDGMENT DATE:
12 December 2008

PARTIES:
Owen Jeffrey MULLINS (appellant)
Regina (respondent)

JUDGMENT OF:
Hodgson JA James J Price J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC 07/11/0473

LOWER COURT JUDICIAL OFFICER:
Charteris DCJ

LOWER COURT DATE OF DECISION:
11 October 2007

COUNSEL:
J L GLISSAN QC (appellant)
L WELLS (Crown)

SOLICITORS:
Moneywise Legal Services Pty Limited (appellant)
Solicitor for Public Prosecutions (Crown)

CATCHWORDS:
CRIMINAL LAW – Appeal against conviction – Sexual assault – Issues of consent and appellant’s knowledge – Gaps in complainant’s recollection – Whether open to jury to be satisfied beyond reasonable doubt that complainant did not consent and that appellant knew she did not consent.

LEGISLATION CITED:
Evidence Act 1995 s 66
Criminal Appeal Act 1912 s 6(1)

CATEGORY:
Principal judgment

CASES CITED:
M v The Queen (1994) 181 CLR 487

TEXTS CITED:

DECISION:
Appeal against conviction dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 2008/0568
DC 07/11/0473
HODGSON JA
JAMES J
PRICE J
12 DECEMBER 2008

Owen Jeffrey MULLINS v REGINA

Judgment

HODGSON JA: On 2 October 2007, the appellant pleaded not guilty to a charge that he on 26 August 2004 at Manly in the state of New South Wales did have sexual intercourse with [the complainant] without her consent and knowing that she was not consenting.
The appellant was tried before Charteris DCJ and a jury. It was accepted by the appellant that sexual intercourse had occurred between him and the complainant. The only issues at the trial were whether or not the complainant consented to the sexual intercourse and/or whether the appellant knew that she was not consenting or was reckless as to that matter.
On 11 October 2007, the jury returned a verdict of guilty. The appellant was sentenced on 25 January 2008 to a minimum period of imprisonment of one year and ten months, and an additional or parole period of one year and eight months.
The appellant appeals from his conviction.
Crown case
The complainant gave evidence that on the night of 25 August 2004 she went out in Manly with her friend CM. They ate some food at a restaurant and shared a bottle of wine. At about 9pm, they went to the Wharf Bar where she drank two vodka lime and bitters. At about 10.30pm they went to the New Brighton Hotel, and she drank another vodka lime and bitters. At about 12.10am, they went upstairs to the Shark Bar, where they danced and she had a sip of a strawberry cocktail. They met up with a friend LP, and the three then went to the Ivanhoe Hotel at about 1.30am.
There the complainant met Daniel Mullins, a younger brother of the appellant, who also pointed out another brother Nigel Mullins. Daniel Mullins bought the complainant a vodka drink.
The complainant had patchy recollection of what happened thereafter until she woke up in a bed in a room at the nearby Steyne Hotel; although she did have some recollection of being in a room with a number of people including the appellant’s brothers and a young woman.
The complainant agreed that CCTV footage showed her entering the Base Bar of the Ivanhoe with CM and LP at around 3.04am, and showed her leaving the Base Bar alone at around 3.40am. She also agreed that CCTV footage showed her entering the foyer of the Steyne Hotel with Daniel Mullins and kissing him there (at around 4.05am to 4.26am). She did not remember kissing him, but said that she knew they kissed because she knew she liked him and had seen the CCTV footage.
The complainant remembered being in a room in the Steyne Hotel, in which she said there were two single beds, with the appellant’s brothers and others. She remembered sitting on one of the beds (in fact, this was a double bed), next to Daniel Mullins. She remembered lying down to sleep, and that she was then fully clothed. In cross-examination, she said she did not remember Daniel Mullins lying down, kissing her, and inserting his finger into her vagina; and she denied that he had removed her jeans.
The complainant’s next memory was of waking up in the same bed. Her jeans, pantyhose and underwear were between her ankles and knees, and a male person (the appellant), who the complainant said she had never seen before, was to her right, lying on his side with his legs underneath hers; and this person’s penis was inside her vagina and he was moving back and forth. She said “What the fuck are you doing? Who are you?” She hit him twice, and he stopped moving and withdrew his penis.
Daniel Mullins was on the other side of the bed at the time. He woke up and was angry, and he smashed something made of glass.
The complainant said she felt semen running out of her vagina onto the bed-sheets. She hid her face under the bed-sheet and started crying. She pulled on her underwear, stockings and jeans while under her sheet. She then ran out of the room. Daniel Mullins followed her into the hotel foyer (where they were shown on CCTV footage at 6.24am to 6.28am), and out into the street. He asked her if she was OK, and she said “No your friend just raped me”.
The complainant then walked to her hotel room and told her friend AG that she had just been raped. AG corroborated this evidence, and AG and CM gave evidence that the complainant was very distressed. AG called the police. The complainant was taken to Royal North Shore Hospital.
In cross-examination, the complainant denied that she had engaged in any kissing or physical contact with the appellant, and maintained that her first knowledge of sexual activity with him was when she woke up.
Dr Stalley, who examined the complainant at Royal North Shore Hospital at 11am on 26 August 2004, gave evidence that the complainant had given a tearful account of what had happened, including that she had gone to sleep fully dressed with one of the men also fully dressed, and had woken up to find her knickers, tights and pants off and another male with his penis in her vagina. Urine and blood samples were taken from the complainant.
An analytical certificate showed no drugs in the complainant’s blood, and a blood alcohol reading of 0.054. A pharmacologist, Judith Perl, gave evidence to the effect that at 4am the complainant’s blood alcohol reading would have been probably around 0.178, and that at 6.15am it probably would have been about 0.144. She gave evidence that at a level of 0.1 a person would be impaired in their judgment and decision-making, and also that memory would be impaired if it were something attempted to be stored whilst intoxicated, though it was more likely that an event would be remembered if it had more of an impact on the individual.
DNA recovered from the complainant’s vulval swab had the same profile as the appellant’s DNA.
Senior Constable Shelley gave evidence that the appellant attended Gosford Police Station on 18 October 2006; and that in response to the complainant’s allegation that she woke up to find a male having sexual intercourse with her, the appellant said “she must sleep with her eyes wide open”. Otherwise, the appellant exercised his right to silence. Senior Constable Shelley also gave evidence that the appellant had no criminal record.
Daniel Mullins gave evidence of meeting the complainant at the Ivanhoe Hotel and buying her a drink. He later found her slumped against a building on the Corso. He invited her to enter the Steyne Hotel, which she did, and they kissed in the foyer. He said he would get condoms from a dispenser in the male toilet, and did so. They went to room 16 at the hotel which was booked for the appellant and his friend Stephen Hogg. They kissed on the double bed, he removed some of his and her clothing, and fooled around. He placed his finger in her vagina and could not achieve an erection. At some stage, the appellant entered the room, and then left; and later the appellant threw chips and dirt through a window into the room.
Daniel Mullins gave evidence that the appellant later entered the room again, turned on the TV, and was talking to the complainant. Daniel then fell asleep and woke to hear the complainant moaning apparently in sexual pleasure. He jumped to his feet and said “what do you think you are doing” and left the room. He denied that the complainant said to him in the foyer of the hotel that she’d been raped.
Leave was given to the Crown to cross-examine him; and he agreed that he had said in a previous statement that the complainant had fallen into a pretty deep sleep before the appellant had re-entered the room.
Stephen Hogg gave evidence that he went to sleep in the room; and that when he woke up he heard pleasurable moaning from a female and could see the complainant kissing the appellant. He said that when Daniel Mullins woke up he swore and smashed the lamp beside the bed. He also gave evidence that the complainant was crying afterwards.
Nigel Mullins gave evidence that he came into the room after the incident, and that the complainant was sitting on the bed looking confused.
The Crown also put into evidence transcripts of a number of telephone calls intercepted in September 2006 between Daniel Mullins and the appellant. The effect of three calls made on 21 September 2006 was adequately summarised as follows in the Crown submissions:
First call at 10:24, 21 September 2006:
i.Daniel Mullins said to the appellant that he told police she was moaning and had grabbed the appellant's hand.
ii.The appellant said that he didn't want to tell police that he was smashed on drugs. Daniel Mullins said that he knew that and had just said the appellant was pretty drunk.
iii.The appellant said he would just say that he was cuddling her, he wouldn't say that he wasn't touching anything sexual (Daniel interrupted to say "Oh well you weren't"), that he just jumped into bed to cuddle her and that he was fully clothed.
iv.The appellant said that he would just say that he didn't do anything.
Second call at 14:02, 21 September 2006:
v.Daniel Mullins asked the appellant if he had "rooted her". The appellant denied that he had.
vi.Daniel Mullins said that the police told him she had semen inside her and he had to do a DNA test.
vii.The appellant said he didn't know if she had clothes on because he was on top of the covers. Daniel Mullins said that was what he had said, plus he said the appellant had his belt and jeans on.
Third call at 19:02, 21 September 2006:
viii.They discussed what Hogg had said to police, that he was asleep for most of it but just heard moaning which woke him up.
ix.Daniel Mullins again asked the appellant if he had "rooted her". The appellant said he was just doing other stuff.
x.Daniel Mullins confirmed that the police said she had 'sperm' inside her. The appellant said that she had her hand on him and that was about it. Daniel Mullins said he didn't know whether to say that or not.
xi.The appellant confirmed that she had grabbed it [his penis] and said she had started getting on to him.
xii.Again Daniel Mullins said to the appellant that there was no way he could have rooted her. The appellant said that the position was too awkward.
xiii.Daniel Mullins said he told police that both [the complainant] and the appellant were on their backs when he woke up and he heard a "pleasurable moan".
Appellant’s case
The appellant gave evidence that he went into the hotel room at a time when Daniel, the complainant and Hogg were there. Daniel and the complainant were in the double bed. The appellant then started to bounce on the bed and turn the television up loud. He told the complainant to move over so he could sit back in the bed. They had a conversation and began kissing.
The appellant gave evidence that they were soon lying down facing each other and he put his fingers inside her vagina, rubbed her breasts and kissed her. She started to masturbate him and was rubbing his penis around her vagina. He partially penetrated her vagina with his penis. He was on his back and she was partially lying on top of him. He was about to ejaculate and stopped himself so that they could continue, because they had only been going for a couple of minutes. She was moving his hips towards his finger and getting louder with her sexual noises. She had been making these noises the whole time he was touching her. The noises were pleasurable moaning.
The appellant gave evidence that Daniel woke up and said words to the effect “what the fuck are you two doing?”. The appellant denied anything was happening. Daniel hit the lamp and left. He followed Daniel. He pulled his pants up as he got up.
The appellant denied seeing the complainant’s pants or stockings or underwear because they were all off. He said he did not move back and forth at any stage. He denied that the complainant said anything to him afterwards or punched him away.
The appellant said that he had denied having sexual intercourse in the intercepted telephone calls because he was embarrassed to tell his brother and he was afraid his wife would find out.
The appellant denied that he had initiated sex with the complainant.
Ground of Appeal
The appellant relied on one ground of appeal only, namely that the conviction was unsafe and unsatisfactory in that the evidence was insufficient to support a conviction.
Submissions
Mr Glissan QC for the appellant submitted that the complainant was unable to give evidence as to the sexual intercourse. Her evidence was that, after a point of time at which she had voluntarily gone to a hotel room with the brother of the appellant and others, she had no recollection of events until she became aware that the appellant had penetrated her vaginally.
In the circumstances, Mr Glissan submitted that there was no evidence that she did not consent, nor was there evidence from which want of consent could properly be inferred. There was no evidence that could give rise to a conclusion to the requisite standard that the appellant knew or ought to have known that the complainant was not consenting. There was no evidence of behaviour indicating want of consent and no evidence of resistance or reluctance. There was no admission by the appellant beyond the fact of intercourse.
Mr Glissan submitted that the unreliability of the complainant’s evidence was confirmed by her evidence that she was not aware of anyone taking off her clothes. There was no injury corroborative of the Crown case. The essence of the complainant’s evidence was that she knew she had not consented, but she could not remember. Mr Glissan submitted that it was not possible to conclude that the complainant did not consent to sexual intercourse; and it was not open to infer that she communicated any lack of consent in such a way as to make the appellant aware of it or to make him reckless as to whether or not she was consenting.
Mr Glissan submitted that the use of the telephone intercepts was limited to use in their effect on the credibility of the appellant and Daniel, and not as any independent support of the Crown case by reason of consciousness of guilt or otherwise.
Even accepting that the complainant did respond as she said she did when becoming fully conscious, this was consistent with her having consented but becoming upset at what was happening or with her becoming upset because she had no recollection of what had previously happened. It could not establish beyond reasonable doubt that the complainant did not consent and that the appellant knew she did not consent or was reckless as to whether she consented.
Decision
As put on behalf of the Crown, the onus is on the appellant to demonstrate that the verdict of guilty is “unreasonable and cannot be supported, having regard to the evidence” in terms of s 6(1) of the Criminal Appeal Act 1912. The ultimate question for determination 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”: M v The Queen (1994) 181 CLR 487 at 494-495. This was a case where the benefit that the jury had of seeing the witnesses, including the complainant and the appellant, and of assessing their evidence, was a considerable advantage.
In my opinion, it was clearly open to the jury to be satisfied beyond reasonable doubt that, despite the complainant being substantially affected by alcohol and despite gaps in her recollection of earlier events, the complainant’s recollection of events from about the time sexual activity ceased was good. It is clear that soon afterwards, the complainant complained to AG that she had been raped, and AG and CM confirmed that she was highly distressed and upset; and it is clear that since then her complaints have been consistent.
In my opinion it was open to the jury to be satisfied beyond reasonable doubt that she made a similar complaint to Daniel in the street outside the Steyne Hotel, and that shortly after sexual activities ceased she was crying (as confirmed by the evidence of Stephen Hogg).
In all these circumstances, it was open to the jury to be satisfied that the complainant did, as she said, wake up and find the appellant having sexual intercourse with her, and immediately protest and hit him, causing him to stop.
Mr Glissan accepted that it was open to the jury to reject the evidence of the appellant, and the sworn evidence of Daniel Mullins, having regard to the intercepted telephone conversations, and also having regard to the complainant’s evidence of what happened from around the time sexual activity ceased.
However, his submission was that this still left the prosecution with the burden of showing on the basis of the complainant’s evidence, beyond reasonable doubt, that the complainant did not consent to the sexual intercourse with the appellant and that the appellant knew she was not consenting. The complainant’s evidence, Mr Glissan submitted, was not capable of doing this, having regard to her very blurred and patchy recollection of what had happened between the time she was with Daniel Mullins in the Ivanhoe Hotel (about 2am) and the time she woke up (about 6am). The defects of her recollection are shown particularly by the circumstance that she had no recollection of kissing Daniel Mullins, and no recollection of her jeans, pantyhose and underwear being removed.
However, the complainant did give evidence that in the hotel room she was “really tired and sort of sleepy and drowsy” and that she lay down on the bed; that Daniel was nudging her saying “don’t fall asleep, don’t fall asleep”; that then she did not recall anything else before she woke up; and that it was light when she woke up, while when she went to sleep it was dark.
In my opinion, notwithstanding the gaps in the complainant’s recollection, it was open to the jury to be satisfied beyond reasonable doubt that she did not consent to the sexual intercourse with the appellant, because she was asleep when that sexual intercourse was commenced. It is true that the complainant had not remembered kissing David Mullins, so that there is some force in the submission that she may not have remembered consenting to sexual intercourse. However, the jury, having the advantage of observing the complainant giving evidence, could reasonably have discerned a significant difference between the two situations, in circumstances where the complainant said she knew she liked Daniel and acknowledged that she kissed him, but was adamant that she did not consent to sexual intercourse with a person she said she had not seen before; and so, particularly having regard to her evidence that she went to sleep and woke up in the circumstances she described, the jury could reasonably have been satisfied beyond reasonable doubt that she did not consent to sexual intercourse with the appellant.

In my opinion, it was also open to the jury to be satisfied beyond reasonable doubt that the appellant knew the complainant was not consenting or was reckless as to whether or not she was consenting, because that could be inferred from the circumstance that the complainant was asleep. Further, the jury was entitled to reject, beyond reasonable doubt, the appellant’s own account, which was of initiation of the sexual activity by the complainant, and thus was supportive of actual and active consent, and not at all supportive of a mistaken belief that there was consent when there was not.
In my opinion also, although this is not necessary for my decision, that there was evidence capable of satisfying the jury of these things beyond reasonable doubt is further confirmed by Daniel’s original statement to the police that the complainant had fallen into a pretty deep sleep before the appellant came into the room and sat on the bed. Although the matter was not explored below, and it was not put to the jury in those terms, this statement was in my opinion admissible firsthand hearsay, pursuant to s 66 of the Evidence Act 1995, having been made in September 2004 when the events were fresh in Daniel’s memory.
Conclusion
For those reasons, in my opinion the appeal against conviction should be dismissed.
JAMES J: I agree with Hodgson JA.
PRICE J: I agree with Hodgson JA.

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LAST UPDATED:
12 December 2008