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NARKLE -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 160

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2011] WASCA 160
Court:	THE COURT OF APPEAL (WA)
Case No:	CACR:129/2010	Heard:	9 MAY 2011
Coram:	McLURE P BUSS JA HALL J	Delivered:	26/07/11
No of pages:	24	Judgment Part:	1 of 1
Result:	Leave to appeal refused
Category:	B
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Parties:	GARRY MICHAEL NARKLE THE STATE OF WESTERN AUSTRALIA
Catchwords:	Criminal law Appeal against conviction Appellant convicted after a trial on two counts of unlawful and indecent assault and four counts of sexual penetration without consent Trial before a judge alone Whether trial judge erred in concluding that there was no evidentiary basis for the operation of s 24 of the Criminal Code (WA) Whether the trial judge erred in failing to direct himself about any delay in making complaint in accordance with a direction of the kind referred to in Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427 Whether the trial judge erred in failing to warn himself as to the use to which the complainant's distressed condition could be put Grounds of appeal without any reasonable prospect of success Leave to appeal refused
Legislation:	Criminal Code (WA), s 24, s 323, s 325 Evidence Act 1906 (WA), s 36BD
Case References:	Braysich v The Queen [2011] HCA 14; (2011) 276 ALR 451 Cook v The Queen [2000] WASCA 78; (2000) 22 WAR 67 Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427 CTM v The Queen [2008] HCA 25; (2008) 236 CLR 440 Eades v The Queen [2001] WASCA 329 Kailis v The Queen [1999] WASCA 29; (1999) 21 WAR 100 Kilby v The Queen [1973] HCA 30; (1973) 129 CLR 460 M v The Queen [1994] HCA 63; (1994) 181 CLR 487 R v Brdarovski [2006] VSCA 231; (2006) 166 A Crim R 366 R v Davies (1985) 3 NSWLR 276 R v Gulliford [2004] NSWCCA 338; (2004) 148 A Crim R 558 Vo v The State of Western Australia [2010] WASCA 24 WCW v The State of Western Australia [2008] WASCA 232; (2008) 191 A Crim R 22

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : NARKLE -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 160 CORAM : McLURE P

BUSS JA

HALL J

HEARD : 9 MAY 2011 DELIVERED : 26 JULY 2011 FILE NO/S : CACR 129 of 2010 BETWEEN : GARRY MICHAEL NARKLE

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : EATON DCJ

Citation : STATE OF WESTERN AUSTRALIA -v- NARKLE [2010] WADC 80

File No : IND 36 of 2010

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Catchwords:

Criminal law - Appeal against conviction - Appellant convicted after a trial on two counts of unlawful and indecent assault and four counts of sexual penetration without consent - Trial before a judge alone - Whether trial judge erred in concluding that there was no evidentiary basis for the operation of s 24 of the Criminal Code (WA) - Whether the trial judge erred in failing to direct himself about any delay in making complaint in accordance with a direction of the kind referred to in Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427 - Whether the trial judge erred in failing to warn himself as to the use to which the complainant's distressed condition could be put - Grounds of appeal without any reasonable prospect of success - Leave to appeal refused

Legislation:

Criminal Code (WA), s 24, s 323, s 325

Evidence Act 1906 (WA), s 36BD

Result:

Leave to appeal refused

Category: B

Representation:

Counsel:

Appellant : Mr S B Watters

Respondent : No appearance

Solicitors:

Appellant : Thames Legal

Respondent : Director of Public Prosecutions (WA)

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

Braysich v The Queen [2011] HCA 14; (2011) 276 ALR 451
Cook v The Queen [2000] WASCA 78; (2000) 22 WAR 67
Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427
CTM v The Queen [2008] HCA 25; (2008) 236 CLR 440
Eades v The Queen [2001] WASCA 329
Kailis v The Queen [1999] WASCA 29; (1999) 21 WAR 100
Kilby v The Queen [1973] HCA 30; (1973) 129 CLR 460
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
R v Brdarovski [2006] VSCA 231; (2006) 166 A Crim R 366
R v Davies (1985) 3 NSWLR 276
R v Gulliford [2004] NSWCCA 338; (2004) 148 A Crim R 558
Vo v The State of Western Australia [2010] WASCA 24
WCW v The State of Western Australia [2008] WASCA 232; (2008) 191 A Crim R 22

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1 McLURE P: I agree with the orders proposed by Buss JA for the reasons he gives. I wish to make some additional comments on grounds 1 and 2. The appellant relies on the evidence of his oral statement made to police after his video-recorded interview as satisfying the evidentiary burden of raising the defence of honest and reasonable mistake under s 24 of the Criminal Code (WA) (the Code). The trial judge was correct to conclude that the appellant had not satisfied the evidentiary burden of raising s 24.

2 The relevant question is whether there is evidence which, taken at its highest in favour of the appellant, could (as a matter of law) lead a reasonable trier of fact to have a reasonable doubt that the appellant honestly believed on reasonable grounds that the complainant consented to the sexual activity the subject of the charges. See Braysich v The Queen [2011] HCA 14 [17], [36].

3 The defence of mistake only arises for consideration if the jury (or other finder of fact) is satisfied beyond reasonable doubt that the complainant did not consent to the relevant conduct. Accordingly, the evidentiary burden will only be satisfied if there is a version of the facts which leaves open, as a reasonable possibility, that the accused could honestly and reasonably but erroneously believe that the complainant consented.

4 Nothing in the appellant's oral statement to police (set out in full in Buss JA's judgment) provides any evidentiary foundation for a reasonable doubt relating to the objective limb of the defence of mistake. A mere assertion of consent without exposing the factual basis for the claim is incapable of supporting any reasonable basis for such a belief. The fact that the appellant and the complainant were both drinking and taking pills takes the matter no further. Moreover, in light of the appellant's statement that he provided money, food and clothing to the complainant for reasons unrelated to the purchase of sexual services, that leaves only the bare fact that the complainant told the appellant he was gay and provided sexual services for reward. That too is incapable of satisfying the evidentiary burden relating to whether the appellant had reasonable grounds for a belief that the complainant had consented.

5 BUSS JA: The appellant was convicted, after a trial in the District Court before Eaton DCJ, sitting as a judge alone without a jury, on six counts in an indictment which alleged that on or about 24 January 2009, at Queens Park, the appellant:

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(a) unlawfully and indecently assaulted the complainant, a 38-year-old male, by touching the complainant's penis (count 1);

(b) sexually penetrated the complainant, without his consent, by penetrating the complainant's anus with his penis (count 2);

(c) unlawfully and indecently assaulted the complainant by touching the complainant's penis (count 3);

(d) sexually penetrated the complainant, without his consent, by penetrating the complainant's anus with his penis (count 4);

(e) sexually penetrated the complainant, without his consent, by penetrating the complainant's anus with his penis (count 5); and

(f) sexually penetrated the complainant, without his consent, by engaging in fellatio (count 6).

6 The appellant has applied to this court for leave to appeal against his conviction.

The State's case at trial

7 Each of the counts in the indictment was alleged to have occurred in a campervan parked at the Kenlorn Caravan Park in Queens Park.

8 The complainant gave evidence that as at the evening of 24 January 2009 he had been homeless since October 2008. At about 10.00 pm on the evening in question he was outside the Commonwealth Bank at Cecil Avenue, Bentley.

9 The complainant said that he did not have any plans that evening as to where he would spend the night.

10 At about 10.00 pm, a taxi stopped near where he was standing and a man, who the State alleged was the appellant, got out. The man offered him a bed for the night. He accepted and got into the taxi with the man. They travelled to the Kenlorn Caravan Park. The man paid the fare. They got out and went to a campervan. He and the man entered the van. No one else was present.

11 The complainant's evidence is recorded in the trial judge's written reasons. It is unnecessary to reproduce his Honour's detailed account. It is sufficient to note that the complainant gave evidence that late on the night of 24 January 2009 or early in the morning of 25 January 2009, he

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was sexually penetrated without his consent, and unlawfully and indecently assaulted, as alleged in counts 1 - 6 of the indictment, and that the offender was the man who the State alleged was the appellant.

12 The complainant went to the emergency department at Royal Perth Hospital on the evening of 25 January 2009. At about 9.30 pm he was seen by Dr Robinson, a medical practitioner. She made notes to the effect that the complainant was a 38-year-old male who complained of having been sexually assaulted by a single male. Her notes also indicated that the complainant had told her he was forced to receive both oral and anal sex, that he had not spoken to the police, that he did not have injury peri-anally, orally or abdominally, but that he had suffered psychological trauma.

13 The State called Dr Yeung, a medical practitioner, who examined the complainant at Royal Perth Hospital late in the evening on 25 January 2009. She noted that the complainant did not have any injuries; in particular, there were no injuries to his anus or genitals. She gave evidence, however, that the absence of any such injuries did not exclude the occurrence of recent oral or anal penetration [71].

14 Professor Joyce, a clinical pharmacologist and toxicologist, was called by the State to comment on the presence of diazepam, naltrexone and cocaine found in samples taken from the complainant. He said that the presence of these drugs could have impaired the complainant's ability to make an effective defence to sexual assaults of the kind alleged in the indictment [80].

15 Mr Webb, a forensic scientist with expertise in DNA analysis, was called by the State to give evidence about his examination of samples taken from the complainant. The trial judge made these findings about Mr Webb's evidence including his DNA analysis:

[Mr Webb] gave evidence of having received certain items said to have been taken from the complainant including a pair of underpants, a pair of shorts, a jacket and a collection of swabs and smears forwarded from the Sexual Assault Resource Centre being a glans penis swab and smear, a penile shaft swab and smear, a urethra swab and smear, two rectal swabs and a smear, two anal swabs and a smear, two peri-anal swabs and a smear, an oral swab and smear and an oral rinse sample. He concluded that spermatozoa were detected in the smears, when examined microscopically, from the oral rinse, the penis glans, the rectal, anal and peri-anal smears. Spermatozoa were not detected in the oral swab and the smears from the penile shaft and urethra. The swabs from the penile shaft and urethra gave positive reactions when tested with a presumptive

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chemical test for semen. The oral swab gave a negative reaction when tested with a presumptive chemical test for semen. The anal and peri-anal swabs gave positive reactions when tested with a confirmatory test for human saliva.

The oral rinse, rectal, anal and peri-anal swabs were submitted separately for DNA analysis. No DNA profile was recovered from the sperm cell fraction of the oral rinse. A partial male DNA profile recovered from the epithelial cell fraction did not match [the appellant's] reference DNA profile.

So far as the rectal swab was concerned, a DNA profile recovered from the sperm cell fraction matched [the appellant's] reference DNA profile. A mixed DNA profile consistent with a mixture of DNA from at least two individuals was recovered from the epithelial cell fraction. That mixed profile could be separated into major and minor components. The partial major component DNA profile recovered matched [the appellant's] reference DNA profile.

As to the anal swab, the partial DNA profile recovered from the sperm cell fraction matched [the appellant's] reference DNA profile. No DNA profile was recovered from the epithelial cell fraction.

As to the peri-anal swab, the DNA profile recovered from the sperm cell fraction matched [the appellant's] reference DNA profile. A DNA profile was not recovered from the epithelial cell fraction.

The underpants, shorts and jacket were not examined. Importantly, Pathwest was not provided with a reference buccal sample from the complainant.

In evidence Mr Webb confirmed that all DNA profiles recovered from sperm cell fractions were consistent with [the appellant's] recorded DNA profile [85] - [91].

The appellant's case at trial

16 The appellant did not give sworn evidence at the trial.

17 The appellant's case, as put by his counsel, conceded that some sexual activity had taken place between the complainant and the appellant. This activity was alleged on behalf of the appellant to have fallen short of actual penetration. The complainant's evidence was denied. It was submitted on the appellant's behalf that the sexual activity which occurred was consensual.

18 Defence counsel argued that the complainant's version of events was inherently unlikely. In particular, it was argued that:

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(a) The complainant had an early opportunity to complain when he left the campervan to go to the toilet, probably passing a number of other residents of the caravan park on the way. His failure to complain at that point gave reason to doubt that he had been assaulted as alleged, or at all.

(b) The complainant failed to avail himself of the opportunity to complain until about 9.00 pm on the evening of 25 January 2009, despite having the opportunity to do so at the Bentley Community Centre where he had spent most of that day.

(c) The amount of alcohol and drugs consumed by the complainant made his memory unreliable.

(d) The complainant told Dr Robinson that he had been an intravenous drug user, but in evidence in court he denied this.

(e) There were no injuries of the sort that one might have expected following forceful non-consensual anal sex.

(f) The suggestion by the complainant that (in January) he listened to a broadcast on his radio of the AFL Grand Final (traditionally held each year in September) cast serious doubt on both his credit and his reliability.

(g) There was a serious inconsistency between the complainant's evidence in court as to how his clothes came to be removed in the appellant's campervan, and his statement to the police as to how his clothes came to be removed.

The trial judge's findings of fact

19 The trial judge accepted that there were a number of inconsistencies in the complainant's version of events [65]. As a result, his Honour thought it prudent to look for some supporting evidence which might bolster the complainant's version and the State's case.

20 The trial judge found supporting evidence in:

(a) the DNA evidence [94], [112];

(b) the fresh or early complaint to Dr Robinson [110] - [111]; and

(c) Professor Joyce's evidence as to intoxication [82] - [84].

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21 However, his Honour declined to find any support for the State's case in various lies told by the appellant to the police [109]. Before this court, counsel for the appellant conceded that he was 'somewhat fortunate' in this regard.

22 The trial judge made these findings:

Returning to the elements to be proven by the State beyond reasonable doubt, so far as counts 2, 4, 5 and 6 are concerned, each being a count of alleged sexual penetration, I am satisfied beyond reasonable doubt that there was sexual penetration in the manner alleged

. I arrive at that conclusion, in each case, based primarily upon the evidence of the complainant supported to some degree by the forensic biology findings. In being so satisfied, I am aware, as mentioned earlier, that the complainant, in his evidence-in-chief, described sexual activity not complained of in the indictment. To the extent that there were 'uncharged acts' I have been careful to regard those acts as being part of the complainant's narrative of events on the night in question. I am generally accepting of the truthfulness and reliability of the complainant as to the events of the night in question and to the extent that those acts did, in fact, occur, I have not regarded them as being proof of any of the individual acts complained of in the indictment.

So far as the element of consent in counts 2, 4, 5 and 6 is concerned I must rely, again principally, upon the evidence of the complainant supported, to some degree, by Professor Joyce's evidence as to the impact of the alcohol and drugs ingested on the night in question in combination with his personal state at that time. Consent must be freely and voluntarily given. It is not freely and voluntarily given if it is obtained by force, threat or intimidation. I am satisfied beyond reasonable doubt that [the appellant] did, having invited the complainant back to his campervan and provided him with some comfort, alcohol and drugs, behave in a threatening or intimidating manner in order to force compliance with his demand for sex. The bringing of the complainant to the campervan in the caravan park in Queens Park was not an act of altruism on the part of [the appellant] but rather an exercise in taking opportunistic advantage of a homeless man whose circumstances rendered him prone.

There were, as mentioned, inconsistencies as between the complainant's evidence during the trial and earlier statements and information provided to others. Counsel for [the appellant], in his closing speech, detailed those which, in his submission, rendered the complainant's evidence incredible or unreliable or both. It is the case, however, as outlined by Ms Whitbread for the State in her closing speech, that there were many consistencies in the account given by the complainant in his evidence when compared with what he had said to others in earlier statements or information provided and with the information provided progressively by [the appellant] himself to police officers on 9 June 2009. As earlier mentioned, the conduct of the complainant in making complaint as he did, having regard to his personal

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circumstances at that time, demonstrates, in my view, an important consistency of conduct.

I am satisfied beyond reasonable doubt that the acts complained of in each count were without his consent

.

As to counts 1 and 3 I am satisfied beyond reasonable doubt that [the appellant], in each case, assaulted the complainant in the manner particularised, and that his assault, in each case, was both unlawful and indecent [119] - [122]. (emphasis added)

The proposed grounds of appeal

23 The appellant relies on five proposed grounds of appeal.

24 Ground 1 alleges that the trial judge erred by failing to recognise the evidentiary significance of the exculpatory portions of the oral admissions made by the appellant to police after his video-recorded interview.

25 Ground 2 alleges that his Honour erred in finding that there was no evidence of consent or of honest and reasonable mistake for the purposes of s 24 of the Criminal Code (WA) (the Code) that arose on the evidence and required his consideration.

26 Ground 3 alleges that his Honour erred by failing to direct himself in accordance with 'the approach required by the High Court' in Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427.

27 Ground 4 alleges that his Honour erred by failing to warn himself as to the use to which the complainant's distressed condition could be put.

28 Ground 5 alleges that even if none of the matters raised in grounds 1 - 4 'are seen as having led to a substantial miscarriage of justice, the totality of those errors has led to a substantial miscarriage of justice'.

The merits of grounds 1 and 2

29 It is convenient to consider grounds 1 and 2 together.

30 On 9 June 2009, the appellant participated in a video-recorded interview with police. During the interview the appellant denied having engaged in any sexual activity with the complainant. The transcript of the interview reads, relevantly:

Q. Where did you go?

A. Oh, just to my place - the camper van.

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Q. Okay. And what did you [do] at the camper van?

A. Just had a drink.

Q. Did you do anything else?

A. Nuh, just watched a tape.

Q. Just watched a tape?

A. Yeah, he had nowhere - nowhere to go, on the streets.

Q. Did you have sex with this man, Garry?

A. No.

Q. So you've never had sex?

A. Nuh.

Q. Uh, when - do you understand what I mean by sex?

A. Yes.

Q. Okay. Um, in relation to that - so have you ever put your penis in his bottom?

A. No.

...

Q. So you've never had sex with him ever?

A. No.

…

Q. Okay. In relation to this, Garry, um, he's obviously made some allegations that you've - you've had sex with him.

A. Oh, well, that's lies.

Q. That's lies?

A. Not true.

Q. So you've never had sex - - -

A. No.

Q. - - - with that - that male?

(Page 12)

A. No.

Q. Did he try to have sex with you at all?

A. No (interview ts 8, 9, 11).

31 The interview commenced at 10.48 am and concluded at 11.12 am.

32 A little later on 9 June 2009, the appellant had a discussion with Detective Sergeant August. The discussion was not video-recorded. An entry was made in the police running sheet (exhibit 19) at 12.03 pm on that date, as follows:

'Discussion with POI

NARKLE requests to speak to Det Sgt AUGUST. Advises that he wishes to tell the truth regarding the incident. States that he was embarrassed and did not want to talk about it on the previous video but wants to tell his side now. Stated that he did have sex with the complainant but it was consensual. They were both drinking and taking pills and both engaged in sexual activity on at least two occasions. He did not hurt him and the complainant consented on all occasions. The complainant told him that he was gay and that he offered sex to get by on the streets. NARKLE gave him $30 to $50, a feed and some clothing but this was not in exchange for sex. He stayed the night and left in the morning. He has not seen the complainant since. I asked NARKLE if he wanted to state this on video however he declined. A phone was offered to obtain legal advice on the matter … [09/06/09 13:16 8095]'

33 At the trial, defence counsel tendered the entry in the police running sheet.

34 The trial judge was satisfied beyond reasonable doubt and, on the evidence, he was entitled to be satisfied to the criminal standard, that:

(a) there was sexual penetration as alleged in counts 2, 4, 5 and 6 [119];

(b) the appellant behaved in a threatening or intimidating manner towards the complainant in the campervan in order to force compliance by the complainant with the appellant's demand for sex [120];

(c) the acts complained of in each count occurred without the complainant's actual consent [121]; and

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(d) the appellant assaulted the complainant in the manner alleged in counts 1 and 3 and the assault was, in each case, unlawful and indecent [122].

35 Before this court, counsel for the appellant (who was also defence counsel at the trial) submitted that the entry in the police running sheet contained these exculpatory statements:

(a) ' … he did have sex with the complainant but it was consensual … '; and

(b) 'the complainant consented on all occasions'.

36 According to counsel for the appellant, the exculpatory statements were evidence of the appellant's belief that the complainant had consented to having sex with him. Counsel asserted that his Honour did not consider this evidence. The basis for the assertion was his Honour's conclusion that there was no evidentiary basis for the operation of s 24 of the Code:

The only defence that might emerge in such circumstances is that arising from s 24 of the

Criminal Code

which provides that a person who does an act under an honest and reasonable but mistaken belief in the existence of any state of things is not criminally responsible for the act to any greater extent [than] if the real state of things had been such as he believed to exist. In a case such as this if there was evidence of a belief on [the] part of [the appellant] that the complainant was consenting to sexual penetration of him when, in truth he was mistaken as to that belief the State, there having been an evidentiary foundation laid giving rise to the operation of s 24, would have to satisfy me beyond reasonable doubt that the accused person did not hold such belief or, if he did, that it was not a belief honestly and reasonably held in all the circumstances.

In this matter the final contention of the defence, as evidenced by [the appellant's] out-of-court statement to a police officer after the conclusion of his video-taped interview, was that he and the complainant engaged in sexual activity on at least two occasions in circumstances where the complainant told him that he was gay, that he offered sex to get by on the streets and that [the appellant] gave him $30 to $50, some food and clothing but not in consideration for the sex that took place.

Cross-examination of the complainant involved putting a proposition to him to the effect that following sexual advances by the complainant to [the appellant], [the appellant] obliged by attempting, unsuccessfully, anal intercourse in the form of attempted penetration of the complainant's anus with his penis. The latter proposition seems at odds with the explanation advanced to the police officer and recorded only in the running sheet following the conclusion of the formal interview. [The appellant] elected not to give evidence. There is, having regard to all the circumstances, no

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evidentiary basis for the operation of s 24 of the

Criminal Code

. It is, therefore, not a matter to be disproved by the State. In reaching that conclusion I do so cognisant that [the appellant] carries no burden of proof. What I must consider are matters to be proved or disproved by the State beyond reasonable doubt. I conclude that the State need not, in this case, prove beyond reasonable doubt that [the appellant] was not relieved of criminal responsibility by the operation of s 24 of the

Criminal Code

[98] - [100]. (emphasis added)

37 Before this court, counsel for the appellant accepted that his cross-examination of the complainant at the trial involved, relevantly, putting to the complainant (no doubt, on instructions) that the complainant made sexual advances to the appellant, and the appellant responded by attempting to penetrate the complainant's anus with his penis, but no actual penetration occurred (appeal ts 7 - 8).

38 The trial judge recorded details of the complainant's cross-examination, as follows:

Counsel for [the appellant] suggested to the complainant that he had told [the appellant] on a number of occasions that he would do anything for him to make him 'feel alright' and that, when saying that, he was standing near him and started touching him. He suggested that the complainant then pulled [the appellant's] penis from his shorts and began to masturbate him, continuing for five or seven minutes. Counsel suggested that he then asked [the appellant] 'Are you right now to fuck me?' to which [the appellant] is said to have replied 'Okay, I'll try'. Counsel suggested that the complainant then lay on the bed and that [the appellant], lying on top of him, attempted to insert his penis into the complainant's anus in a consensual act with the complainant trying to assist penetration. Finally, counsel suggested that [the appellant] stood up and said 'Don't worry about it', put on his jeans and t-shirt and left the campervan, taking his bag with him to the shower block. The scenario put to the complainant was completely rejected by him in cross-examination [54].

39 A defence under s 24 of the Code, in the context of an offence alleging sexual penetration or an indecent act, without consent, will not arise for determination unless:

(a) there was, in fact, no consent; and

(b) there is some evidence, fit for the tribunal of fact's consideration, that at the material time the accused had an honest and reasonable, but mistaken, belief that the complainant consented to the sexual penetration or indecent act.

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See

WCW v The State of Western Australia

[2008] WASCA 232; (2008) 191 A Crim R 22 [7] (Buss JA) and the cases there cited.

40 The concept of honest and reasonable belief has subjective and objective elements. The subjective element is, ordinarily, peculiarly within the knowledge of the accused. The objective element must be capable of being measured against the evidence by the tribunal of fact. See CTM v The Queen [2008] HCA 25; (2008) 236 CLR 440 [8] (Gleeson CJ, Gummow, Crennan & Kiefel JJ).

41 If it is necessary for a trial judge to consider, at the close of the evidence in a criminal trial, whether a particular defence should be left to the tribunal of fact, the relevant question, in a case where (as in the present case) the legal burden is on the State and the evidential burden is on the accused, will be: is there evidence which, taken at its highest in favour of the accused, could lead a reasonable tribunal of fact, properly instructed, to have a reasonable doubt that each of the elements of the defence had been negatived? See Braysich v The Queen [2011] HCA 14; (2011) 276 ALR 451 [17], [36] (French CJ, Crennan & Kiefel JJ).

42 In the present case, there is no merit in grounds 1 and 2. In particular, there was no evidence which, taken at its highest in favour of the appellant, could lead a reasonable tribunal of fact, properly instructed, to have a reasonable doubt that the State had negatived the reasonableness of any belief the appellant may have had as to consent. I am of that opinion for the following reasons.

43 The appellant picked up a homeless man who accompanied him in a taxi to his campervan. According to the appellant's out of court statements, as noted in the running sheet:

(a) each of them drank and took pills in the campervan, and consensual sexual activity then occurred;

(b) the complainant told him that he was gay and that he offered sex to get by on the streets; and

(c) the appellant gave the complainant $30 to $50 and some food and clothing, but this was not in exchange for sex (emphasis added).

44 None of these facts and circumstances forms an arguable basis for an inference or conclusion that the appellant had a reasonable belief that the complainant consented to sexual activity with him.

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45 No reasonable tribunal of fact, properly instructed, could fail to be satisfied beyond reasonable doubt that the alleged consumption of drink and pills by the complainant was not a fact or circumstance on the basis of which the appellant may have had a reasonable belief as to consent. Also, no reasonable tribunal of fact, properly instructed, could fail to be satisfied beyond reasonable doubt that the complainant's alleged statements to the appellant that he was gay, and that he offered sex to get by on the streets, were not facts or circumstances on the basis of which the appellant may have had a reasonable belief as to consent. I emphasise that the appellant expressly said that the money, food and clothing he allegedly gave the complainant were not in exchange for sex.

46 Also, no reasonable tribunal of fact, properly instructed, could fail to be satisfied beyond reasonable doubt that all of the facts and circumstances noted in the police running sheet, taken in combination, were not facts and circumstances on the basis of which the appellant may have had a reasonable belief as to consent.

47 The facts and circumstances, taken at their highest in favour of the appellant, could not arguably lead a reasonable tribunal of fact, properly instructed, to have a reasonable doubt that the State had negatived the reasonableness of any belief as to consent the appellant may have had.

48 Further, and in any event, the trial judge's unchallenged finding of fact, beyond reasonable doubt, that the appellant behaved in a threatening or intimidating manner towards the complainant, in order to force compliance with his demand for sex [120], positively negated the reasonableness of any defence under s 24 of the Code.

The merits of ground 3

49 The offences occurred late on the night of 24 January 2009 or early in the morning of 25 January 2009.

50 The complainant gave evidence, in effect, that between 6.00 am and 7.00 am on 25 January 2009 he awoke while the appellant slept and, after some difficulty with the lock on the campervan door, managed to let himself out without waking the appellant. He then walked to a community centre where he slept for some time. In the afternoon, he walked to Royal Perth Hospital and went to the emergency department. He was seen there by a triage nurse at 8.59 pm. The nurse referred him to Dr Robinson who, as I have mentioned, recorded the complainant's complaint at about 9.30 pm.

(Page 17)

51 Before this court, counsel for the appellant submitted that the complainant was a homeless man who willingly accompanied the appellant to his campervan and made no complaint to anyone at the caravan park or at the community centre the next day. There was no doubt, so it was submitted, that the complainant did not complain about the alleged offences at the earliest reasonable opportunity. According to counsel, the trial judge should have 'assessed the delay in complaint in the light of all matters relating to its having been made, and then made a further assessment as to the import of the delay'. This, so it was submitted, would have been consistent with the decision of the High Court in Crofts.

52 Section 36BD of the Evidence Act 1906 (WA) provides:

Where on the trial of a person for a sexual offence or an offence under Chapter XXII of

The Criminal Code

(as enacted at any time) evidence is given or a question is asked of a witness which tends to suggest an absence of complaint in respect of the commission of the alleged offence by the complainant or to suggest delay by the complainant in making any such complaint, the judge shall -

(a) give a warning to the jury to the effect that absence of complaint or delay in complaining does not necessarily indicate that the allegation that the offence was committed is false; and

(b) inform the jury that there may be good reasons why a victim of an offence such as that alleged may hesitate in making or may refrain from making a complaint of that offence.

53 The trial judge directed himself about s 36BD and any delay by the complainant in making complaint, as follows:

It is apparent from the evidence that approximately 18 hours elapsed between the events complained of in the indictment and the complaint made by the complainant to the Emergency Department at Royal Perth Hospital.

There was very little challenge to the complainant in cross-examination as to his failure to make complaint of the alleged sexual offences committed against him before he did so at the hospital. There was some suggestion, as mentioned, that he failed to make complaint to people who were drinking outside at the caravan park when he made his way to the ablution block. There is no evidence that there were people drinking when he did so because he not only rejected the proposition but pointed out that his visit to the ablution block had been prior to the threats made to him and the sexual activity complained off. Delay in making complaint was thereafter only faintly pursued in cross-examination and barely touched upon, if at all, in the closing speech of counsel for

[

the appellant

]

. I am cognisant of the provisions of s 36BD of the

Evidence Act 1906

to the effect that where a question is asked of a witness which

(Page 18)

tends to suggest an absence of complaint or delay in complaint the trial judge should give a warning to the jury to the effect that absence of complaint or delay in complaining does not necessarily indicate that the allegation that the offence was committed is false and that he or she should inform the jury that there may be good reasons why a victim of an offence such as that alleged may hesitate in making or may refrain from making a complaint of that offence [118]. (emphasis added)

54 Crofts concerned an accused charged with thirteen counts of committing sexual offences against a child aged between 10 and 16 years. The complainant had delayed in making complaints about the alleged offending for periods of between six months and six years from the dates on which the acts were alleged to have occurred. Section 61 of the Crimes Act 1958 (Vic) provided, relevantly, that on the trial of a person for certain sexual offences, the judge must not warn, or suggest in any way to, the jury, that the law regards complainants in sexual cases as an unreliable class of witness. Section 61 also contained provisions substantially similar to s 36BD of the Western Australian Evidence Act. Toohey, Gaudron, Gummow and Kirby JJ referred to the statement of Barwick CJ (with whom McTiernan, Stephen and Mason JJ concurred) in Kilby v The Queen [1973] HCA 30; (1973) 129 CLR 460, 472, in relation to the significance of a want of timely complaint, where his Honour said:

In my opinion, quite apart from the fact that there may be many reasons why a complaint is not made, the want of a complaint does not found an inference of consent. It does tell against the consistency of the woman's account and accordingly is clearly relevant to her credibility in that respect (448).

Their Honours recorded that after the decision in

Kilby

:

In appropriate cases juries were told that the absence of timely complaint (if that be their conclusion) was relevant to the credibility of the complainant and a fact to be considered in evaluating the consistency of the complainant's evidence. There might be 'many reasons' to explain why the complaint was not made promptly. It was for the jury to weigh up those possible reasons. But it was also for the jury to weigh up the significance of the delay in complaining (448).

55 In Crofts, Toohey, Gaudron, Gummow and Kirby JJ approved, at 449 - 450, the following observations of Hunt J (Slattery CJ at CL & Carruthers J agreeing) in R v Davies (1985) 3 NSWLR 276, in relation to s 405B of the Crimes Act 1900 (NSW), which is comparable to s 36BD of the Western Australian Evidence Act:

I am unable to see from the statute generally any legislative intention … to preclude the trial judge - as a matter of common fairness - giving

(Page 19)

directions on the other side of the coin to those required by that section. Making obligatory the giving of directions that there may be good reasons for the absence of a complaint or for the delay in making it, whether or not such reasons were suggested in the evidence, is certainly to be seen as tilting the balance in favour of the complainant - no doubt because of the difficulty she may often have in articulating those reasons herself - but it should not be seen as standing the law on its head to exclude what in common fairness and common experience should be taken into account in favour of the accused (278).

The majority in

Crofts

added:

The purpose [of s 61] was not to convert complainants in sexual misconduct cases into an especially trustworthy class of witnesses (

Longman v The Queen

(1989) 168 CLR 79 at 86 - 87). It was simply to correct what had previously been standard practice by which, based on supposed 'human experience' and the 'experience of courts', judges were required to instruct juries that complainants of sexual misconduct were specially suspect, those complained against specially vulnerable and delay in complaining invariably critical. In restoring the balance, the intention of the legislature was not to 'sterilise' complainants from critical comment where the particular facts of the case, and the justice of the circumstances, suggested that the judge should put such comments before the jury for their consideration (

Longman

at 86, citing

R v Pahuja

(1987) 49 SASR 191 at 199, per King CJ;

R v Miletic

(unreported; Supreme Court of Victoria (Court of Appeal); 9 August 1996) at 20). The overriding duty of the trial judge remains to ensure that the accused secures a fair trial (cf

M v The Queen

(1994) 181 CLR 487 at 515, per Gaudron J). It would require much clearer language than appears in s 61 of the Act to oblige a judge, in a case otherwise calling for comment, to refrain from drawing to the notice of the jury aspects of the facts of the case which, on ordinary human experience, would be material to the evaluation of those facts (

Longman

at 86).

…

Two qualifications to the duty to provide the warning suggested by Kilby may be accepted. The first is where the peculiar facts of the case and the conduct of the trial do not suggest the need for a warning to restore a balance of fairness (R v Murray (1987) 11 NSWLR 12 at 18; M v The Queen (1994) 181 CLR 487 at 514 - 515). The second is that the warning should not be expressed in such terms as to undermine the purpose of the amending Act by suggesting a stereotyped view that complainants in sexual assault cases are unreliable or that delay in making a complaint about an alleged sexual offence is invariably a sign that the complainant's evidence is false (451).

(Page 20)

56 In M v The Queen [1994] HCA 63; (1994) 181 CLR 487, Gaudron J referred to the comments of Hunt J in Davies as to the existence of a 'general rule' to give a direction in accordance with Kilby, and noted:

However, that is not a hard and fast rule and a conviction will not be set aside simply because there has not been a direction of that kind (See

Reg v Preval

[1984] 3 NSWLR 647;

Reg v Murray

(1987) 11 NSWLR 12) (514).

57 In Cook v The Queen [2000] WASCA 78; (2000) 22 WAR 67, Anderson J (Pidgeon & Wallwork JJ agreeing) held that a 'balancing' direction was not necessary, as 'in the context of the trial as a whole, it must have been crystal clear to the jury that they were permitted to use the evidence of delay in complaining as relevant to the complainants' credibility' [113].

58 In Kailis v The Queen [1999] WASCA 29; (1999) 21 WAR 100, Malcolm CJ said, in relation to the type of direction in question:

[T]here is much to be said for the proposition that the interests of justice are better served if each case is approached in the light of its own facts, with directions to the jury being fashioned to take account of the assumption, if any, to which those facts might give rise, rather than by reference to an assumption expressed in general terms, but which, clearly, cannot hold good in all cases [125].

59 In the present case, there was no material delay by the complainant in making complaint. This must have been appreciated by counsel for the appellant at trial. As the trial judge noted, delay in making complaint was 'only faintly pursued in cross-examination' and was 'barely touched upon, if at all' in counsel's closing address. It is apparent that any minor delay in making complaint was not a matter of any significance at the trial.

60 The trial judge said (correctly) that the complainant's complaint to Dr Robinson was not evidence probative of the sexual assault complained of, but may have the effect of bolstering or supporting the complainant's credibility [28]. His Honour then noted that whether the complaint had that effect was a matter for further consideration [28].

61 The trial judge closely examined the complainant's evidence. As a result of a number of inconsistencies in the complainant's version of events, his Honour thought it prudent to look for some supporting evidence. As I have mentioned, he found support in the DNA evidence [94], [112], what his Honour characterised (correctly) as the 'fresh or early

(Page 21)

complaint' to Dr Robinson [110] - [111], and Professor Joyce's evidence as to intoxication [82] - [84].

62 After a careful examination of all of the relevant evidence, his Honour reached the following conclusion about the complaint:

His complaint, in my view, does support or bolster his credibility in relation to the allegation of non-consensual sex as between he and [the appellant]. He had had only a fleeting encounter with [the appellant]. He did not, it seems, know his name. Given his personal circumstances, his conduct in making his way to the Emergency Department at Royal Perth Hospital on the evening following the events complained of does, in my view, demonstrate consistency. I accept as mentioned earlier, that his complaint does not amount to proof that the acts complained of by him, in fact, did occur [111].

63 I am satisfied that, in the circumstances of the present case, it was unnecessary for the trial judge to direct himself about any delay in making complaint in accordance with a direction of the kind referred to by the majority in Crofts. No such direction was required to ensure that the appellant received a fair trial. There is no merit in ground 3.

The merits of ground 4

64 The trial judge noted that there was evidence as to the complainant's condition when he was seen by Dr Robinson and Dr Yeung:

In her evidence-in-chief Dr Robinson described the complainant's affect at the beginning of their interview. She said that he did not make eye contact and was apparently shaken although he communicated well. She found him a private room because he looked as though he needed privacy in order to speak to her. He was forthcoming in answering her questions. She contacted the Sexual Assault Resource Centre. No treatment was provided at the Emergency Department prior to the arrival of a doctor from that centre.

In cross-examination Dr Robinson said that she had been with the complainant for about 10 or 15 minutes and thereafter left him in the care of a nurse, returning from time to time. She said that he did not look well though there was no obvious physical injury. He walked slowly and sat in a chair slumped with head down [23] - [24].

65 Before this court, counsel for the appellant submitted that there was a 'need' for the trial judge to address 'the complainant's distress'. This 'need' arose, so it was submitted, because of 'the status of the complainant as a homeless man, who had been living on the streets for some time'. Counsel submitted that his Honour should have directed himself that 'the
(Page 22)

complainant's distress' may have been referable to matters other than the alleged sexual penetrations and unlawful and indecent assaults.

66 In a sexual penetration without consent or an unlawful and indecent assault case, the complainant's distressed condition can, depending on the circumstances, constitute corroboration. However, before it can have that effect, the complainant's distressed condition must implicate the accused. It must be reasonably explicable only on the basis of the alleged sexual penetration without consent or unlawful and indecent assault having occurred. See R v Gulliford [2004] NSWCCA 338; (2004) 148 A Crim R 558 [151] (Wood CJ at CL, Spigelman CJ relevantly agreeing & Howie J agreeing). As Wood CJ at CL observed:

Matters which can properly be taken into account include the time interval between the alleged assault and the observations of the distressed state, any conduct that may have occurred in the intervening period, and the circumstances in which the observation is made:

R v Flannery

[1969] VR 586 [151].

67 It is well-established that it may be necessary for a trial judge to give a warning to the tribunal of fact about the proper use to be made of evidence as to a complainant's distress. See R v Brdarovski [2006] VSCA 231; (2006) 166 A Crim R 366 [42].

68 In Eades v The Queen [2001] WASCA 329, Murray J (Templeman & Roberts-Smith JJ agreeing) said:

In a case of sexual assault, or concerning sexual offences generally, there is no question that the distressed condition of the complainant after the events in question may, if it is independently observed, be capable of being corroborative of the truth of her account, particularly in respect of the issue of non-consent. It is a question for the trial Judge whether the evidence is capable of being used in that way. As to that question, the Full Court of Victoria said in

R v Flannery

[1969] VR 586 at 591:

'In our opinion, evidence of the distressed condition of a prosecutrix may or may not be capable of amounting to corroboration according to the particular facts of each case. In determining whether it is so capable, regard must be had to such factors as the age of the prosecutrix, the time interval between the alleged assault and when she was observed in distress, her conduct and appearance in the interim, and the circumstances existing when she is observed in the distressed condition. Without attempting to enumerate exhaustively the circumstances in which such evidence may amount to corroboration, we are of opinion that if, regard being had to factors of the kind we have mentioned, the reasonable inference from the evidence is that there was a causal connexion

(Page 23)

between the alleged assault and the distressed condition, evidence of the latter is capable of constituting corroboration. If such inference is not open, the evidence is not, in our opinion, capable of amounting to corroboration. We should add that except in special circumstances … evidence of distressed condition will carry little weight and juries should be so warned by the trial judge in the course of his charge.'

As to the latter aspect, the case of

Flannery

was referred to by the Queensland Court of Criminal Appeal in

R v McDougall

[1983] 1 Qd R 89 at 91 where, speaking of the warning about the weight of such evidence, D M Campbell J, with whom the other members of the Court agreed, said:

'The reason for a warning is that distress may be feigned or may not reflect the complainant's state of mind at the time of the offence. But a warning is not called for in every case. It is not absolutely necessary that a jury be told that generally evidence of a distressed condition is of little weight.'

In my respectful opinion, that is sound in principle. Whether or not a warning of this character is required and if so, in what terms it should be given to assist the jury to a better evaluation of the probative value of evidence, as in the case of warnings to be given to the jury about other evidentiary matters, is to be guided by the principle that what, if anything, a trial Judge is required to do in that regard should be decided by considering what is necessary in the interests of justice to best assist the jury in their fact finding process, having regard to the particular circumstances of the case [32] - [34].

Narkle v The State of Western Australia

[2011] WASCA 160

26 JULY 2011

NARKLE -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 160