N O v The Queen
[2019] ACTCA 33
•21 November 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | N O v The Queen |
Citation: | [2019] ACTCA 33 |
Hearing Date: | 6 November 2019 |
DecisionDate: | 21 November 2019 |
Before: | Elkaim, Mossop and Rangiah JJ |
Decision: | Appeal dismissed |
Catchwords: | APPEAL – GENERAL PRINCIPLES – In General and Right of Appeal – jury trial – differential verdicts – unreasonable and unsupportable verdicts – logical or rational explanation for inconsistency – evidence of complainant – credibility of complainant |
Legislation Cited: | Crimes Act 1900 (ACT) ss 24, 52(1), 54(1), 60(1) |
Cases Cited: | BI v The Queen (No 2) [2018] ACTCA 11 |
Parties: | N O (Appellant) The Queen (Respondent) |
Representation: | Counsel S Howell (Appellant) R Christensen (Respondent) |
| Solicitors McKenna Taylor (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | ACTCA 50 of 2017 |
Decision under appeal: | Court: Supreme Court of the ACT Before: Penfold J Date of Decision: 29 September 2017 Case Title: R v N O File Number: SCC 31 of 2017 |
THE COURT:
On 29 September 2017, a jury, presided over by Penfold J, found the appellant guilty of Counts 1, 2 and 5 on an indictment dated 2 March 2017. The jury found the appellant not guilty of Counts 3, 4 and 6.
Those offences alleged in the indictment were:
(a) Count 1: Sexual assault in the second degree, contrary to s 52(1) of the Crimes Act 1900 (ACT) (the Crimes Act);
(b) Count 2: Sexual intercourse without consent, contrary to s 54(1) of the Crimes Act;
(c) Count 3: Assault occasioning actual bodily harm, contrary to s 24 of the Crimes Act;
(d) Count 4: Sexual intercourse without consent, contrary to s 54(1) of the Crimes Act;
(e) Count 5: Act of indecency without consent, contrary to s 60(1) of the Crimes Act; and
(f) Count 6: Sexual intercourse without consent, contrary to s 54(1) of the Crimes Act.
The appellant filed a notice of appeal, and later an amended notice of appeal seeking the verdicts in relation to Counts 1, 2 and 5 be set aside and a verdict of not guilty be entered on each count.
The grounds of the appeal are as follows:
(1) The verdicts of guilty are unreasonable having regard to the evidence; and
(2) The verdicts of guilty are inconsistent with the verdicts of not guilty in relation to Counts 3 and 4.
The complainant is the same person in respect of all six counts on the indictment.
The appellant was sentenced on 23 February 2018 to a total period of five years and three months imprisonment, with a non-parole period of three years. That sentence included the three guilty counts on the indictment, as well as one transfer charge of stalking and the imposition of a suspended sentence from a breach of a good behaviour order.
There is no complaint about the sentences imposed.
Recently, in the New South Wales Court of Criminal Appeal, in Wheeler v R [2019] NSWCCA 255, Garling J summarised the relevant legal principles:
19. In circumstances where a jury returns differential verdicts for multiple counts charged against one applicant on the basis of evidence from one complainant, this Court must consider whether the differential verdicts are irreconcilable or not. This is a test of “logic and reasonableness”: McKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348 at 366.
20. As was said in McKenzie by Gaudron, Gummow and Kirby JJ at [86]:
“Nevertheless, cases do arise where different verdicts returned by the jury represent ‘an affront to logic and common sense’ and suggest a compromise of 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.” (footnotes omitted)
21. Here, the applicant bears the obligation of establishing the inconsistency of the verdicts: McKenzie at 368 ([31]).
22. In R v TK [2009] NSWCCA 151; (2009) 74 NSWLR 299, Simpson J said (with the agreement of McClellan CJ at CL and Latham J) at [128]:
“The foundation for the test stated in MFA is not confined to ‘the whole of the evidence’ but incorporates ‘all of the facts and circumstances of the particular case’. That is wide enough to include matters outside the evidence, such as the impact on the reasonableness of the verdict of guilty of what may be discerned to be the explanations for the acquittals. In determining whether convictions are unreasonable, in these circumstances, the focus of the inquiry is upon any explanation, not for the convictions, but for the acquittals. If such an explanation can be found without resort to doubts about the claimant's credibility, the verdict of guilty may not be unreasonable. …”
23. The test was put succinctly by Hoeben CJ at CL (with whom Davies and Bellew JJ agreed) in MC v R [2017] NSWCCA 274 at [91] in these terms:
"Ultimately, the test is one of logic and reasonableness. The applicant must establish that the different verdicts cannot stand together in the sense that no reasonable jury that applied their minds properly to the facts could arrive at that conclusion. If there is a proper way by which the verdicts can be reconciled, assuming a conclusion that the jury performed their functions as required, that conclusion will generally be accepted (MG v R [2017] NSWCCA 14 at [88])”.
24. In undertaking a consideration of the ground of appeal as argued, it is necessary to keep in mind that where an indictment contains multiple counts, the jury will ordinarily be directed to separately consider each count. As well, the jury will be directed that the evidence of each witness may be accepted in whole or in part: MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 at [34].
25. Recently in AH v R [2019] NSWCCA 152, Simpson AJA, said at [62] that:
“… differential verdicts, far from providing an indication that a jury has fallen down on its task, may very often provide the basis for confidence that the jury has done precisely what it has been instructed to do: consider each count separately and reach a verdict on that count, on the evidence relevant to that count.”
26. Here, it should be noted that the ground of appeal also includes the assertion that the verdicts of conviction are unreasonable and cannot be supported by the evidence. An appellate Court considering such a ground is obliged to review the whole of the record of the trial and to make an independent assessment of the evidence both as to its sufficiency and its quality. If, after undertaking such a review, the appellate Court is left in a reasonable doubt as to a verdict then it can only conclude there was no miscarriage of justice where the advantage of a jury in seeing and hearing the evidence is capable of resolving that doubt: Bell v Regina [2017] NSWCCA 207 at [22]: Bathurst CJ, McCallum and N Adams JJ.
Importantly for this case, in LS v R [2019] NSWCCA 258, Hoeben CJ at CL said at [65]:
There is no rule that in cases where several offences depend upon the evidence of a single 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 the complainant’s credibility was undermined in respect of the counts upon which they have returned not guilty verdicts (MFA v The Queen at [35] and [89]).
In the Australian Capital Territory the same test has been repeated, for example in ED v The Queen [2019] ACTCA 10 and BI v The Queen (No 2) [2018] ACTCA 11.
The next step is to look at the facts behind the six counts in the indictment.
Counts 1 and 2, for which there were guilty verdicts, related to events alleged to have taken place one night in 2011. The appellant and the complainant had been in a sexual relationship. The relationship was limited because the appellant was simultaneously still in a relationship with another woman.
The complainant, on the Crown case, came to the appellant’s house late in the night. She was responding to an invitation from him. He did not seem ‘normal’. His conversation was odd, his pupils were dilated and he was biting on his lips. The appellant began kissing the complainant. He led her to his bedroom where he held her against the wall. One hand was around her throat and the other on her breasts, thighs and buttocks. The complainant was then held down on the bed where the appellant had his mouth on her breasts. The appellant would not let her leave. Despite her verbal and physical protests he had penile-vaginal sex with her. These facts make up the charges of sexual assault and sexual intercourse without consent (Counts 1 and 2).
Complaint evidence was called. Following the incident the complainant went to her sister’s house where she noticed bruising in the areas of her throat, breasts and inner thighs. Her niece noticed the bruising and was given an explanation, which did not reflect the detail of the alleged assaults.
The same can be said of complaints made to the complainant’s sister and mother which described “rough sex” rather than non-consensual sex. This was because, said the complainant, she was embarrassed by what had occurred.
There was also a complaint to a friend who had noticed some marks on the complainant. When the friend asked about the marks an argument ensued, but the complainant eventually said that the appellant had “forced himself upon her, and that’s pretty much sort of where it ended” (AB 402). Under cross-examination the friend agreed that she had been told by the complainant that she had engaged in rough sex with the appellant.
The complainant took photographs of the bruising and sent them to the appellant. He replied by text message stating:
Jesus Christ
Lol I’m so sorry you deserve more than that I’m so sorry (28/02/2011 9:59PM)
I’m so so sorry
Stop it (28/02/2011 10:20PM) (Trial Exhibit D, AB 805)
After the 2011 incidents the relationship entered a ‘cooling off’ phase.
The relationship revived however and by August 2014 the complainant and the appellant were living together. This is a convenient point to deal with a particular issue. In the course of the trial the complainant’s credit was comprehensively attacked. One element of the attack was that the complainant, notwithstanding the history that she had endured with the appellant, had returned to live with him.
There is an often repeated suggestion that persons, usually women, who return to people that have abused them are unlikely to be telling the truth about the abuse. In short, why would someone who is being abused return to the abuser? It is unfortunately a common feature in abuse cases that the abused person, for many reasons including emotional, financial and children, return to the abuser knowing that yet more abuse is likely.
The defence to Counts 1 and 2 was that the alleged events simply had not happened (AB 103-104). Further, if the complainant had suffered any bruising, it was as a result of rough sex that the couple engaged in from time to time. This activity included the participants grabbing each other around the throat, sometimes leaving bruising or markings. The appellant said that he had never ignored a request from the complainant to terminate a sexual encounter.
Count 3 was said to have occurred between May and August 2014. As already mentioned, by this time the appellant and the complainant were living together, and they had a child, born in October 2012. The allegation was that the complainant discovered text messages on the appellant’s phone which suggested that he was having intimate contact with other women. When the appellant was confronted he attacked the complainant, holding her wrists and trying to retrieve the phone (or phones).
The attack resulted in bruising to the complainant’s wrists. Once again there was complaint evidence which, also again, displayed items of inconsistency, although generally confirmed the argument over a phone.
The appellant conceded that there had been an argument about a mobile phone in evidence in chief but on his version he had been holding the phone and the complainant had been trying to take it from him. He denied holding her by her wrists and, in effect, causing any bruising.
In February 2015 the appellant and the complainant had a second child. Shortly afterwards the complainant separated from the appellant. The complainant gave evidence that on a particular occasion the appellant threatened to kill her if she left him and took the children. The threat was made in a motor car. Around the same time, the complainant also noticed that the appellant had been looking at firearm websites on his iPad. The appellant denied the threat and said he had been looking at the websites as a result of watching a TV program about antique guns.
Shortly after the alleged threat the complainant was admitted to hospital with postpartum bleeding. On discharge the complainant went to live with her sister but felt harassed by the appellant.
While in hospital the complainant was spoken to by the police. She told the police that the appellant had not threatened her or physically assaulted her or her children.
Counts 4 and 5 were said to have occurred in June 2015. The couple was again living together.
In respect of Count 4, the appellant wished to have sexual intercourse but the complainant did not. She flatly refused his request. Nevertheless the appellant inserted his penis into her vagina and sexual intercourse took place. The appellant denied that sexual intercourse would have taken place if the complainant had said “no”.
Count 5 involved another request for sexual intercourse. The complainant said she “didn’t want to” and that she “wasn’t in the mood”. The appellant asked if he could “please himself” to which the complainant replied “Sure, you know, why not. Do what you need to do” (AB 141).
The complainant was lying on her stomach and felt the appellant ejaculate onto her back. The appellant denied the incident had occurred.
Following these two incidents, the complainant told her sister that the appellant would ignore her refusals to have sex. There was also some corroboration of the Count 5 incident.
Count 6 was said to have occurred in July 2015. The appellant followed the complainant into the shower where sexual intercourse commenced. The complainant said she did not wish it to continue but it did. The appellant could not remember this episode of sexual intercourse but said that he “definitely never had non-consensual sex with her” (AB 478).
Exhibit G contains a number of text messages between the appellant and the complainant from 19 July 2015. They include allegations by the complainant of being raped and abused, and denials from the appellant in response.
No complaint is made by the appellant about the directions given to the jury. Her Honour made it very clear to the jury that careful scrutiny of the complainant’s evidence was required. For example, she said:
Another thing that I should say to you, given the significance of the evidence of the complainant in this case, and the need for you to be satisfied beyond reasonable doubt of the elements of an offence before you could bring in a guilty verdict, that is, that it's important that you scrutinise the evidence of the complainant with particular care. And consider both its credibility and its reliability. In saying that, I am not indicating any personal view of the complainant's evidence. And I am not suggesting that you are not entitled to convict the accused on the basis of her evidence. Clearly, you are entitled to do so. But only after you've carefully examined that evidence and satisfied yourself that in relation to the particular offence you're considering it's reliable beyond reasonable doubt, her evidence. (AB 718)
The following two directions are also relevant:
Next, I say this, your ultimate decision as to what evidence you accept and what evidence you reject may be based on all sorts of things, including what the witness has to say, the manner in which the witness said it, and the general impression which he or she made upon you when giving evidence. You're not obliged to accept the whole of a witness' evidence. You may, if you think fit, accept part and reject part of the same witness' evidence. Rejecting part of a witness' evidence does not mean that you must reject the whole of that witness' evidence. You're entitled to accept other parts of a witness' evidence if you think it's worthy of acceptance. (AB 710)
…
First I need to remind you of one of the things I said at the beginning of this trial which is that each charge requires separate consideration, that you will need to reach a separate verdict on each charge separately and that there is no need for all the verdicts to be the same. However, I should also say to you that giving separate consideration to the individual counts does mean that you are entitled to bring in verdicts of guilty on some counts and not guilty on other counts if there is a logical reason for that outcome. However, if you were to find the accused not guilty on any count, particularly if that was because you had doubts about the reliability of the complainant’s evidence, you would have to consider how that conclusion affected your consideration of the remaining counts. (AB 714)
The appellant acknowledges, in written submissions, that his task is “a challenging one”. He is correct.
The appellant emphasised that the credibility of the complainant was central to the case. He said the case as presented to the jury was one of guilty or not guilty of all counts. To this end he referred to statements made in closing addresses by both the Crown and the defence.
For example, the Crown said:
Can I suggest to you that the issues for you to consider in this trial are fairly narrow? There’s no issue that the accused and [the complainant] were in a relationship and had consensual sexual intercourse at times. The real issue, or the sole issue, for you to decide is whether these incidents - whether you are satisfied beyond a reasonable doubt that these incidents that he’s charged with happened. (AB 666)
On the defence side, this passage was referred to:
Findings of not guilty are not findings that [the accused] is telling the truth. It’s just a finding that you can’t be satisfied beyond any reasonable doubt the complainant is telling the truth. And what you might think is that while there are separate counts and you need to make a finding on each of the separate counts, that whether or not [the accused] is guilty of each of those counts comes down to a really simple question. And that is, can you be satisfied beyond any reasonable doubt the complainant is telling the truth, bearing in mind all these issues. Because if you can’t be satisfied beyond any reasonable doubt of that, then the finding of not guilty you might think will flow. (AB 696)
The Court does not agree that the case was presented on an ‘all or nothing basis’. That was not submitted by the Crown and, as is evident from the passages quoted above from her Honour’s directions, it was certainly not suggested to the jury by the trial judge.
Each count was to be decided separately according to the establishment, beyond reasonable doubt, of the elements of each individual offence. The task of the jury was to examine each count and see whether the facts that the jury accepted enabled it to reach a verdict of guilty.
The more fundamental point made by the appellant was that differential findings on the facts before the jury could not sustain different verdicts. There was no reason, said the appellant, why the complainant should be believed on some matters and not on others. The appellant pointed out that there was a consistency in the detail of the allegations made by the complainant such that there was no viable room to reject her version of one event but accept it in relation to a separate event.
The Court does not agree that there was such a consistency apparent, or implicit, in the evidence of the complainant which would have prevented a jury from logically reaching differential verdicts. It was always open to the jury to accept parts of the complainant’s evidence and reject other parts.
It is necessary to once again return to the evidence. Counts 1 and 2 are immediately distinguishable from the other counts of sexual intercourse without consent (Counts 4 and 6). Firstly, they are separate in time, having occurred at the same time but a very different time to the other offences. Secondly, Counts 1 and 2 involve acts of violence which are missing from the other counts. Further independent evidence of the violence, through photographs, was available.
The complainant’s evidence about Counts 1 and 2 was direct and detailed. This is her description during her evidence in chief:
Was there an occasion where the sex was different?---Yes, there was.
Can you tell us about that?---Yes. I was called by [the accused] one night. He asked me to come in and see him. I attended his residence in Fisher. At that time [the accused] was residing at the bottom of the property. It was a split level dual occupancy property. I met [the accused] downstairs. He opened the door. When he did I noticed [the accused] was different to what he normally was. He seemed quite intoxicated. He was also chewing his lips, which I thought was quite unusual, and I've heard in the past that people did this under the influence ‑ ‑ ‑
MR BRADY: Object to this.
MR HICKEY: Sorry. Just again not what you were thinking at this stage. Just what you heard and saw?---Okay. I saw [the accused] open the door. I saw him behaving differently. He was biting on his lips, as I was saying. [The accused] was not having a normal conversation with me at that point. I remember saying, you know, "Have you taken something because you look - something is not quite right." [The accused] began kissing me near the front entrance of his house. He led me towards his bedroom where he held me up against the wall. He had his hand around my throat. He was - with his other hand he was touching my body, so he was touching my breasts and my thighs and my bottom. He was kissing me quite roughly. I remember when I was up against the wall he was trying to undo my bra. The next thing I remember I was on his bed. He - I told [the accused] I wanted to leave, so I told him I didn't want to do it and I wanted to leave, and he said to me, "You're not going anywhere." [The accused] continued kissing me while I was on the bed. I remember him sucking on my breasts. I remember him holding me down, holding my arms. During this time I told him I wanted him to stop. He then penetrated me and as he was on top of me I had my head on his chest trying to push him off, but I remember how strong he was. I couldn't get him off me. I can recall how much it hurt when he penetrated me. It was quite painful. The sex itself lasted a few minutes. When he was finished, shortly after he fell asleep and that's when I left his property and went home. (AB 110-111)
The complainant was not shaken from her version during cross-examination (AB 188). The version leaves no doubt that the complainant was not consenting.
The description quoted above is to be compared, for example, with the description given by the complainant of Count 4:
Tell us what you can recall about that occasion?---[the accused] once again wanted to have sex. I didn't. He asked me if I wanted to. I said no. The room was quite dark. I couldn't see him. I could hear him licking his fingers. I then felt - I was laying on my side. I then felt his penis going into my vagina. The top of his penis was quite wet. I assumed that's why I heard that licking sound. I assumed there was saliva on the top of his penis. He then had sex with me. He came inside me. That’s all I remember.
I think you said, just bear with me?---That’s okay.
Sorry was there any conversation, I should just check was there any conversation between you and him before this happened?---No. Not that I can recall. (AB 141-142)
It is immediately apparent that a level of detail is missing and, perhaps more importantly, there is a distinct inconsistency on the question of consent. Initially the complainant says that she said “no”, but very soon afterwards she says that she could not recall if there had been any conversation before the intercourse took place.
The jury, properly instructed as it was, would have faced the very real decision of whether or not it was satisfied beyond reasonable doubt that there had not been consent to the sexual intercourse.
The same observations can be made about Count 6. This is the description given by the complainant:
So what did you do that morning?---I went and had a shower and [the accused] followed me in. We started having sex in the shower. I didn’t want to. I couldn’t look at him in the face. I remember my head being down. I think after that he realised that I wasn’t - just didn’t want to do it. (AB 145)
There are many reasons why the jury might have found the appellant not guilty based on this description. It is unclear if the sex was consensual, at least at the beginning. It is unclear whether the appellant knew, or even had any hint, of a lack of consent. The complainant is herself unsure about this point. She says “I think after that he realised that I wasn’t - just didn’t want to do it” (emphasis added).
In respect of Count 3 the appellant submitted that the description given about the incident was detailed and should have produced a verdict of guilty if the complainant was accepted generally. The descriptions given in evidence in chief (AB 134-135) and cross‑examination (AB 140-141) are relatively detailed but there are nevertheless reasons the jury could reasonably have rejected the offences having been proved. Unlike Counts 1 and 2 the complainant did not take photographs of the injuries. Further, the incident was minimised by the complainant in her description to her mother, who gave this account of what the complainant had said to her:
In terms of the substance of the conversation, how was it different to what was in the court documents?---Well, she'd come and we were having dinner, and she came into the kitchen and was telling me a story. And she said how she'd grabbed the phone from [the accused’s] hand and she'd hurt her wrist. And she was, sort of, making light of it and throwing her hand around. And I never thought anything more of it until I read the opposite story. (AB 639)
The reference to the “opposite story” also raises the scenario of there being inconsistent versions of what had occurred.
The appellant’s case, as described above, is dependent upon the jury being faced with a complainant who was either to be believed about everything she said, or alternatively had been so discredited that nothing she said could be accepted. On either scenario there was no room for differential verdicts.
The facts of the case however show otherwise. The versions of the events giving rise to the charges, given by the complainant, varied significantly in detail and corroboration (or lack of it) so that the jury was faced with having to examine the complainant’s evidence and decide which parts it could accept beyond reasonable doubt and which parts it could not. This was precisely the direction given to the jury by the trial judge and evidently, it is a direction that the jury applied in its scrutiny of the complainant’s evidence, and gave effect to its conclusions.
Accordingly, the appeal is dismissed.
| I certify that the preceding fifty-seven [57] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Justice Elkaim, Justice Mossop and Justice Rangiah. Associate: Date: 21 November 2019 |
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