Norris v The Queen

[2022] NTCCA 5

CITATION:Norris v The Queen [2022] NTCCA 5

PARTIES:  NORRIS, Mathew Wayne

v

THE QUEEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

JURISDICTION:  CRIMINAL APPEAL from the SUPREME COURT exercising Territory jurisdiction

FILE NO:CA 9 of 2020 (21830568)

DELIVERED ON:  14 March 2022

HEARING DATE:  16 February 2021

JUDGMENT OF:  Grant CJ, Barr and Brownhill JJ

CATCHWORDS:

CRIME – Appeals – Appeal against conviction – Unreasonable verdict

Applicant found guilty of sexual intercourse – Whether verdict unreasonable and not supported by evidence at trial – The purported inconsistencies, discrepancies and other inadequacies identified by the applicant did not lead to a satisfaction that the jury, acting rationally, ought to have entertained a reasonable doubt as to proof of guilt – Application for leave to appeal dismissed.

Criminal Code 1983 (NT), s 411

BCM v The Queen (2013) 303 ALR 387, FN v The Queen [2021] NTCCA 5, Foster v The Queen [2021] NTCCA 8, Lynch v The Queen [2020] NTCCA 6, GAX v The Queen (2017) 344 ALR 489, Libke v The Queen (2017) 230 CLR 559, Lynch v The Queen [2020] NTCCA 6, M v The Queen (1994) 181 CLR 487, McDonough v The Queen [2021] NTCCA 9, MLW v The Queen [2022] NTCCA 2, Pell v The Queen (2020) 268 CLR 123, R v M, WJ [2004] SASC 345, SKA v The Queen (2011) 243 CLR 400, Stuart v The Queen [2010] NTCCA 16, Wheeler v The Queen [2020] NTCCA 10, Willcocks v The Queen [2021] NTCCA 6, referred to.

REPRESENTATION:

Counsel:

Applicant:In person

Respondent:  V Engel

Solicitors:

Applicant:Self-represented

Respondent:  Office of the Director of Public Prosecutions

Judgment category classification:    B

Number of pages:  31

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Norris v The Queen [2022] NTCCA 5

No. CA 9 of 2020 (21830568)

BETWEEN:

MATHEW WAYNE NORRIS

Applicant

AND:

THE QUEEN

Respondent

CORAM:    GRANT CJ, BARR & BROWNHILL JJ

REASONS FOR DECISION

(Delivered 14 March 2022)

THE COURT:

1. On 20 June 2019, the applicant was found guilty by a jury of a single count of having sexual intercourse with a female victim without consent.  The alleged offending took place on 16 July 2018.  On 25 July 2019, the applicant was sentenced to a term of imprisonment of five years and six months, with a non-parole period of 46 months and six days.  The sentence and non-parole period were backdated and deemed to have commenced on 16 July 2018.

2. On 28 July 2020, the applicant filed an application for an extension of time within which to make application for leave to appeal and an application for leave to appeal, both dated 21 June 2020.  After the applicant’s application for an extension of time was refused by a single judge, he applied to have his application(s) determined by the Court of Criminal Appeal.[1] 

3. The applicant contends that the jury’s verdict was unsafe and unsatisfactory.  Leave is required to appeal against conviction on any ground that involves a question of fact alone or that involves a question of mixed law and fact.[2]  It is clear that the applicant requires leave.

4. At the hearing, the respondent did not press any objection to the grant of an extension of time within which to make application for leave to appeal.  The Court determined to hear the applicant’s and respondent’s arguments as to the merits of the appeal in order to determine whether leave should be granted (and, if so, whether the appeal should be allowed). 

   The Crown case

5. The Crown case at trial may be summarised as follows.  On Monday, 16 July 2018, the complainant was living on board the fishing boat Angelina C which was moored at the Frances Bay Marina in Darwin.  The applicant was working and living on another vessel, which was moored at the same marina.

6. The applicant would come on board the Angelina C to socialise with the complainant and the skipper of the boat.  The complainant had had consensual sexual relations with the applicant on two previous occasions prior to 16 July 2018. 

7. On Sunday, 15 July 2018, the skipper of the Angelina C was cleaning the boat as the owner was due to do an inspection the following morning.  The skipper stayed up all through the night and into the morning of 16 July 2018 for that purpose.  The complainant helped the skipper clean the boat for some of that time, but went to bed at some time after midnight.

8. Some time before sunrise on Monday, 16 July 2018, the complainant was asleep in bed when the applicant entered the cabin she was in.  She was woken as a result of feeling her underwear and shorts being pulled down her legs.  The complainant told the applicant to ‘stop’ and tried to prevent her clothing from being removed.  The applicant was undeterred, and removed her underwear and shorts then attempted to insert his penis into her vagina.  He was unsuccessful in doing so on a number of occasions due to the complainant clenching the muscles of her vagina and moving her body to resist.

9. The applicant then utilised more force and successfully penetrated the complainant’s vagina with his penis and engaged in sexual intercourse without her consent.  It was an agreed fact between the parties that penile-vaginal sexual intercourse occurred, and that the applicant ejaculated on the complainant’s leg and then wiped his penis with a handkerchief.  There was short conversation between them and subsequently the applicant left the room.

10. The skipper then entered the galley area of the Angelina C wearing a head torch and saw the applicant standing naked outside the complainant’s cabin.  The skipper saw the applicant begin to get dressed.  The skipper, obviously unaware that the applicant had been in the room, told the applicant, ‘[The complainant is] in there, don't go in there.’

11. The skipper then went to the upper deck and returned to the galley area a short time later.  When he came back down, the applicant was gone.  The skipper knocked on the door to the complainant’s cabin but there was no response.  He opened the door and saw the complainant crying inside the cabin.

12. When asked by the skipper what had happened, the complainant said to him, ‘Don't worry about it’.  The skipper observed that the complainant was crying, and asked, ‘Did he rape you?’  The complainant responded by nodding.  The skipper tried to ask further questions, but the complainant made it clear that she did not want to talk about the matter with him any further.

13. The skipper left the complainant’s cabin and returned to the top deck.  He heard the shower running in a nearby shower block and then a short time later saw the applicant walk from the shower block back towards the Angelina C.  As that was happening, the skipper of another boat moored beside the Angelina C had a conversation with the skipper of the Angelina C about what had happened.  When the applicant attempted to get back onto the Angelina C, the two skippers refused to allow him back on board the vessel.

    The evidence at trial

14. The material parts of the evidence given by the various witnesses at trial may be summarised as follows.

    The complainant

15. The complainant gave evidence before the jury on 17 and 18 June 2019.  Her recorded statement was played to the jury and she then gave oral evidence.

16. The complainant’s evidence was that she came to live on the Angelina C after having experienced an unrelated sexual assault involving two other men.  That previous assault occurred approximately two weeks prior to the incident in question.  The complainant stated that she had told the skipper of the vessel what had happened to her and he had invited her to stay on the Angelina C.

17. The complainant stated that she had met the applicant prior to 16 July 2019, and that she had consensual sexual intercourse with him on two previous occasions.  The complainant stated that by 16 July 2019 things had changed between her and the applicant since the last time they had had sexual intercourse.  She stated that two days before 16 July 2018, she and the applicant happened to meet by chance, and during this encounter he touched her and she flinched.  At that time, the applicant asked the complainant why she was flinching and why she did not want to have sex.  The complainant told him that she had been recently sexually assaulted and that was why things had changed.  The complainant also told the applicant that she had not reported the alleged sexual assault involving the two men to the police.

18. The complainant stated that she had consumed methamphetamine on Sunday, 15 July 2018 and was on ‘the come down’ from the methamphetamine and tired when she went to bed.  She said that the door to her cabin did not have a lock on it and so could not be locked.  She stated that she was asleep and woke up when she felt her shorts and underwear being pulled down by the applicant.  She said she had told the applicant ‘no’ and told him to ‘stop’, but he persisted using force and had non-consensual penile-vaginal sexual intercourse with her.

19. After the sexual intercourse had taken place and the applicant had left, the complainant was crying in her cabin.  When the skipper spoke to her, she told him that she did not want to say what had happened and not to worry about it.  She stated that the skipper then told her to come upstairs and sit on the couch where she fell asleep.

20. In cross-examination, it was put to the complainant that while the applicant was at sea, and when his boat was within range, she would have mobile phone contact with him.  The complainant gave evidence that the applicant did have her phone number at one point, but that she did not believe she had mobile phone contact with him.  She stated that it was possible they had mobile phone contact, but she did not have him on Facebook and she used Facebook for most of her social contacts.

21. It was put to the complainant that the skipper and the applicant had both been supplying her with methamphetamine in the period leading up to the incident in question.  The complainant agreed that both men had been supplying her with methamphetamine.  

22. In was put to the complainant that at some time after the applicant had entered her cabin on the morning of 16 July 2018, he said to her, ‘I have a hard cock for you’.  The complainant agreed that the applicant had said those words.  The complainant stated that she had previously explained to the applicant why she did not want to have sex with him, but he still came into her cabin about 5:30 on that morning and forced himself on her.

    Evidence of the skipper

23. The skipper gave evidence that he and the complainant were platonic friends, and there was not, and had not been, any sexual relationship between them.  Prior to the incident in question, the complainant had told him that she had been sexually assaulted by two men.

24. The skipper stated that the applicant would invite himself onto the Angelina C and was tolerated when he was on board.  The skipper stated that the applicant would often overstay his welcome, and that he had to ask the applicant to leave the Angelina C on a few occasions prior to the incident in question.

25. The skipper gave evidence that he had consumed methamphetamine on the afternoon of Sunday, 15 July 2018.  He said he did so because methamphetamine kept him awake and would allow him to clean the boat before the owner returned on the Monday.  The complainant was helping him clean the boat on the Sunday.  At some stage on the Sunday afternoon, the complainant told the skipper that she was annoyed with the applicant because he was pushing her to organise a party and she was not interested in doing so.  The complainant also told the skipper that she did not have any sexual interest in the applicant.

26. The skipper gave evidence that he and the complainant had a toasted sandwich for dinner at around midnight.  The applicant was not on board the Angelina C at that time.  The skipper said that he thought the complainant had gone to bed around 12:30am or 1.00am on Monday, 16 July 2018.

27. The skipper gave evidence that he was wearing a head torch while he was walking around and cleaning the boat in the early hours of the Monday morning.  He saw the applicant standing naked outside the door to one of the cabins.  The door to the cabin was closed.  He told the applicant that the complainant was asleep in that cabin and not to go in there because she needed sleep.  The skipper then went upstairs, and the applicant was gone by the time he came back down a couple of minutes later.

28. The skipper opened the complainant’s cabin door in order to speak to her to see if she was all right.  He told the complainant that he was going to turn the light on and did so.  He saw the complainant sitting against the wall with the blanket wrapped around her and crying.  He said that the complainant appeared traumatised, so he asked her what had happened.  The complainant said, ‘Don't worry about it’.

29. The skipper then asked the complainant if the applicant had had sex with her.  She said ‘yes’ and nodded.  He asked the complainant if she was awake when the applicant had come into the cabin, and she said ‘no’.  He then asked her directly if the applicant had raped her, and she responded ‘yes’.  The skipper told the complainant to go upstairs.

30. The skipper then had a conversation with the skipper of another boat which was moored beside the Angelina C.  He told the other skipper what had happened.  The applicant then started walking from a nearby shower block back towards the Angelina C.  The skipper told the applicant not to come onto the boat.

31. In his evidence-in-chief, the skipper stated that he did not see the skipper of the other boat hit the applicant.  However, in cross-examination the skipper admitted that he had seen that happen.  He said that was not something he wanted to say during the course of his earlier evidence because he wanted to leave the other skipper out of things, and because it had taken place after the event.

32. The skipper gave evidence that he did not call the police in relation to the alleged sexual assault because he was complying with the complainant’s wishes.

    Evidence of Police Officer Sean Clark

33. Police Officer Sean Clark gave evidence that at 7:40am on Monday, 16 July 2018 he and Police Officer Jason Chisholm were tasked to attend the Frances Bay Marina in relation to a complaint concerning a general disturbance.  On arrival he spoke to the applicant, who was the person who had made the complaint to police.  The applicant was sitting on the steps of the Seafood Council building.  Officers Clark and Chisholm activated their body worn video cameras when they spoke to the applicant.  Officer Clark stated that the applicant told him that he had been involved in an incident and had been accused of sexual assault.

34. Officer Clark went with his partner to the Angelina C and he spoke to the complainant, who said that she had been woken up and then sexually assaulted by the applicant.  The interaction with the complainant was captured on body worn video.  Officer Clark subsequently established a crime scene.

    Evidence of Police Officer Jason Chisholm

35. Police Officer Chisholm gave evidence in similar terms to Officer Clark, and his body worn video recording of the conversation between the applicant and police was played.

    Sexual Assault Referral Centre nurse

36. The nurse at the Sexual Assault Referral Centre subsequently examined the complainant and took a history from her.  The nurse gave evidence that the complainant appeared distressed at times during the course of the examination, but that she was coherent.

37. The nurse stated that her notes were a paraphrased version of the history which had been given by the complainant.  Relevantly, the complainant had told her that she had woken up to a person having sexual intercourse with her.

    Evidence of the applicant

38. The applicant gave evidence over the course of two days on 18 and 19 June 2019.

39. The applicant stated that he previously had sexual intercourse with the complainant on two occasions, and that the incident the subject of the complaint and subsequent charge was the third occasion on which they had sexual intercourse.

40. The applicant said that when he was at sea on another vessel prior to the incident in question, he would ring both the complainant and the skipper and talk about drugs and sex during the course of those conversations.

41. The applicant said that he was back on shore and had used methamphetamine on the Friday, Saturday and Sunday leading up to the incident in question. 

42. The applicant gave evidence that he had a conversation with the complainant in the middle of the day on Saturday, 14 July 2018.  At the time, they were together in the galley area of the Angelina C and no one else was around.  He stated that he asked the complainant for a ‘head job’. However, oral sex did not take place because, as he explained in evidence-in-chief:

    There were moments of this alleged rape that had previously happened to her and it was the middle of the day, so there was a mixture of things.

43. The applicant stated that the complainant had spoken to him about the recent sexual assault she had experienced.  He also stated that he had asked the complainant about police involvement, and she told him that none was taken.

44. As to the circumstances of the alleged offence on Monday, 16 July 2018, the applicant gave evidence-in-chief that the complainant was awake at the time he first went to her cabin; that she invited him into her cabin; that they ‘spooned’; that they both assisted in taking her pants off; and that they had consensual sex.  The applicant gave evidence that the complainant did not tell him to stop and that he did not see her cry.

45. The applicant stated that after his shower, he went back to the boat and the skipper asked him if he had raped the complainant.  The applicant stated that he was shocked and said ‘no’, and that the other skipper had then hit him in the face.  The applicant stated that he went to call the police.

46. In cross-examination, the applicant denied that the complainant had flinched when he had previously touched her. He confirmed that in the same conversation in which the complainant told him that she did not want to have oral sex with him, she had told him about the previous alleged sexual assault involving two other men.

47. In response to questions in cross-examination, the applicant said that he was not on the Angelina C in the late hours of the night on Sunday or in the very early hours of the morning on Monday when the complainant went to her cabin to retire for the evening.  He said that he had boarded the Angelina C at about 3 o’clock or 4 o’clock on the Monday morning after the complainant had gone to bed.  He denied that the complainant was asleep when he entered her cabin.  The applicant also denied that he was emboldened in his advances on that morning because he knew that the complainant had not reported the earlier unrelated sexual assault to police.  However, he agreed that at no time before she had gone to bed did the complainant say to him that he could come into her cabin and have sex with her.

48. The applicant stated that after he came back from the shower and attempted to reboard the Angelina C, the skipper asked if he had raped the complainant.  The applicant rejected the suggestion that after he became aware that the skipper of the Angelina C knew about the complainant’s allegation of rape, he had raced to make a complaint to police about being assaulted by the skipper of the other vessel so that he could get in first with his story.

49. The applicant repeated that he never saw or heard the complainant crying after the act of sexual intercourse, and denied that he knew the complainant had been crying before he left the boat.  It was put to the applicant that when police came to speak to him that morning, he immediately volunteered the following statement:

    I jumped into bed with her.  It was consensual and then fucken afterwards fucken she’s pulled all this crying act and I’ve jumped in the shower and (inaudible).

50. It was suggested to the applicant that this statement was unprompted by the police, and was made in response to Officer Chisholm’s question, ‘G'day, mate. How you going?’  It was put to the applicant that, based on the body worn footage of his conversation with attending police, he knew that the complainant was crying before he left the boat and had a shower, and before his later conversation with the skipper.  The applicant rejected that suggestion.

    ‘Unsafe and unsatisfactory’

1. Against that background, the ground of appeal which the applicant seeks to press is that the jury’s verdict was ‘unsafe and unsatisfactory’. That ground does not conform with the language of s 411(1) of the Criminal Code 1983 (NT), which provides that the Court of Criminal Appeal must allow an appeal if it is of the opinion that the verdict of the jury should be set aside ‘on the ground that it is unreasonable or cannot be supported having regard to the evidence’, or ‘that on any other ground there was a miscarriage of justice’.[3] As is apparent from the authorities discussed further below, the contention or conclusion that a verdict is unreasonable or cannot be supported having regard to the evidence is often expressed in terms that the verdict is ‘unsafe and unsatisfactory’. For the purpose of this application, we will proceed on the basis that the formulation ‘unsafe and unsatisfactory’ is a reference to the criteria in s 411(1) of the Criminal Code.

2. The principles governing appeals on this ground of appeal have recently been reviewed by this Court in a series of decisions.[4]  We largely repeat those reviews for ease of reference.  In M v The Queen, the High Court stated:

   Where a court of criminal appeal sets aside a verdict on the ground that it is unreasonable or cannot be supported having regard to the evidence, it frequently does so expressing its conclusion in terms of a verdict which is unsafe or unsatisfactory. Other terms may be used such as ‘unjust or unsafe’ or ‘dangerous or unsafe’. In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, ‘none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand’.

   …

   Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe and unsatisfactory, the question which the court must ask itself is whether it 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. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regards to those considerations.[5]

3. The test in M v The Queen has been affirmed in subsequent decisions of the High Court.[6] An appeal of this kind requires an appellate court to make its own independent assessment of the whole of the evidence, and to determine whether, having regard to any advantages the jury had, it holds a reasonable doubt about the guilt of the appellant. The task of conducting an independent assessment of the evidence requires an appellate court to weigh any competing evidence that might tend against the verdicts reached by the jury.[7] 

4. In considering convictions for sexual offences, where it may be assumed that the jury assessed the complainant’s evidence as credible and reliable, there may be countervailing evidence which nonetheless required the jury, acting rationally, to have entertained a reasonable doubt as to guilt. The High Court has explained the process in the following terms:

   The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in the light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.[8]

5. By way of example, in Pell v The Queen[9] the unchallenged evidence of the opportunity witnesses was inconsistent with the complainant’s account.  The evidence of those other witnesses was that at the time the conduct was alleged to have taken place the accused would have been greeting congregants near the Cathedral steps and at all times accompanied by an acolyte, and the place in which the conduct was alleged to have taken place would have been subject to the continuous traffic of people in and out.  Having regard to that evidence and direct inconsistency, there must have remained a reasonable possibility that the offending had not taken place and there ought to have been a reasonable doubt as to guilt. 

6. In terms of resolving any doubt held by an appellate court, the majority in M v The Queen said:

   In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.[10]

7. In Libke v The Queen, Hayne J expressed the process of reasoning as follows (citations omitted):

   But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt.[11]

8. This formulation does not impose a stricter test than was laid down in M v The Queen. In Pell v The Queen, the High Court confirmed that the statement from Libke extracted above was consistent with what was said by the majority in M v The Queen.[12]

9. The matters which an appeal court may take into account in determining whether it was open on the evidence to be satisfied of guilt beyond reasonable doubt cannot be exhaustively catalogued. Matters which might give rise to a reasonable doubt include whether a lengthy delay in making complaint requires particular caution; whether there are material inconsistencies between the initial complaint and the evidence given at trial; whether the surrounding circumstances suggest some ulterior purpose for a complainant’s account; whether a complainant’s testimony should be considered unreliable due to intoxication or some impairment of memory or suggestibility; whether there is a real possibility that the complainant’s account was a reconstruction; whether collusion between a complainant and some other interested party cannot be excluded beyond reasonable doubt; or whether there are internal inconsistencies in the complainant’s evidence, or inconsistencies with other evidence (as in the Pell case), which necessarily give rise to a reasonable doubt.

10. Where it is asserted on appeal that a complainant’s evidence contained discrepancies, displayed inaccuracies, and otherwise lacked probative force that should lead to the conclusion, after making full allowance for the advantages enjoyed by the jury, that a jury, acting rationally, must have entertained a reasonable doubt as to guilt, the determination involves a two stage process.[13]

11. The first stage involves determining whether each of the discrepancies and inaccuracies asserted by the appellant were in fact present in the evidence. The second stage involves determining whether such discrepancies and inaccuracies as there were, when taken either individually or in combination, go to the essential features of the complainant’s account of the offences;[14] and, if so, whether they necessarily give rise to reasonable doubt or whether they ‘were explicable in a manner that did not provide a basis for them to reflect on [the complainant’s] credit’.[15]

The applicant’s contentions on appeal 

1. The applicant’s essential contention is that there were inconsistencies and discrepancies in the evidence of the complainant which were such that it was not open to the jury to have been satisfied beyond reasonable doubt as to the applicant’s guilt.

2. The first discrepancy asserted by the applicant related to the complainant’s evidence that the previous sexual assault on her by two men occurred two weeks prior to the incident in question, and that the assault was the reason for her decision to move to the Angelina C, whereas at the time of the incident in question she had already been living on the vessel for a period of ‘two dole checks’ or four weeks.  While it is true that in her evidence-in-chief the complainant said that the previous sexual assault had occurred some two weeks prior, during the course of her cross-examination the complainant agreed that she remembered getting two dole payments while she was living on the Angelina C, meaning that she had been living on the vessel for ‘four weeks tops’ prior to the incident in question.  By extrapolation from that answer, the minimum period she had been on the Angelina C was two weeks and one day.

3. The second discrepancy asserted by the applicant was that the complainant lied about how many previous occasions she had engaged in sexual intercourse with the applicant.  During the course of her recorded statement to police the complainant had said she had only had sexual intercourse with the complainant on one occasion.  However, she did go on to tell police in the course of that same recorded statement that she had also engaged in oral sex with the applicant on another occasion.  During the course of her cross-examination, the complainant clarified that when police first asked her whether, and on how many occasions, she previously had sexual intercourse with the applicant, her Clintonesque understanding was that sexual intercourse meant penile-vaginal intercourse and did not include oral sex.  She made it plain, both to police in the course of the recorded statement and during the course of cross-examination, that she had penile-vaginal intercourse with the applicant on one prior occasion and oral-penile intercourse with the applicant on another prior occasion.

4. The third discrepancy, or set of discrepancies, asserted by the applicant hinge on a highly subjective, idiosyncratic and erroneous analysis of various aspects of the complainant’s evidence about what took place in the cabin. 

5. The applicant says that the complainant’s evidence to the effect that he was already naked when he got onto the bed with her is a fabrication because it was dark and she therefore could not see him, and she was covered by a blanket (or sleeping bag) and she therefore could not have felt his state of dress or undress.  The complainant’s evidence in that respect was that she could not see the applicant because it was dark, and that he felt naked.  It was not her evidence that she was covered by a blanket at the time she awoke to feel the applicant with his legs between her knees attempting to remove her shorts and underwear. 

6. The applicant says that the complainant’s evidence to the effect that her head was facing to the left towards the power point and light switch was a fabrication, because on her description the power point had to be to her right.  A proper analysis of the evidence shows the complainant’s account to be that she was lying with her head at the end of the bed which was closest to the door and facing left towards the door.  On that orientation, the power point and light switch would have been to her left.

7. The applicant says that the complainant fabricated her evidence to the effect that as she was sleeping and when she awoke she was lying flat on her stomach with her hands crossed underneath the pillow and her legs ‘half apart’.  The submission is made on the basis of the applicant’s unqualified assertion that the adoption of such a position was highly unlikely given that it would have caused ‘breathing restrictions and lower back discomfort’.  Not only was there no evidence to that effect, and nor is the applicant unqualified to express an opinion in those terms, but the assertion is inconsistent with common experience.

8. The applicant says the complainant fabricated her evidence to the effect that she was tightening or clenching her vaginal muscles in an attempt to prevent him from inserting his penis into her vagina.  This submission is made on the basis of the applicant’s assertion that an attempt to tighten the pelvic floor muscles while in that position would raise the hips, place a strain on the lower back and cause breathing difficulties.  Again, there was no evidence to that effect and the applicant is unqualified to express an opinion in those terms.  As the respondent submitted at hearing, the applicant’s view about whether the complainant was able to clench her vaginal muscles in that position would have been inadmissible at trial and is irrelevant in the determination of this appeal.

9. The fourth basis asserted by the applicant for doubting the complainant’s account was that she had been ‘interrogated’ by the skipper in the aftermath of the incident; that the skipper was motivated by some sort of animus towards the applicant; and that the complainant’s responses implicating the applicant were motivated by her feelings of guilt and conflict (presumably at having engaged in consensual sexual intercourse with the applicant).  A number of observations may be made about that submission, and in relation to the assessment of the relative credibility of the complainant and the applicant.  Even on the applicant’s case, the complainant had said she was not interested in any sexual relationship with the applicant little more than 36 hours prior to the incident in question.  Despite that indication, the applicant turned up to the complainant’s cabin unannounced in the early hours of the morning, got on top of the complainant and said ‘I’ve got a hard cock for you’, and maintained that the complainant nevertheless gave non-verbal consent to sexual intercourse.  The complainant manifested immediate distress, and it may understandably have been difficult for her to give intimate details concerning the cause of that distress without some prompting or interrogation.  The skipper was cross-examined in relation to the questions he had asked the applicant.  That cross-examination did not disclose any element of emotional blackmail or coercion, and nor was any such suggestion put to the complainant during her cross-examination.  Finally, the applicant’s submission in this respect is contingent on an unlikely level of suggestibility in an adult woman.

10. In addition to those matters, the applicant sought to adduce new evidence as to a text message he had received from the skipper on the afternoon of Friday, 13 July 2018, the call logs from his phone between 8 and 16 July 2018 and a calendar with handwritten notations.  The calendar was more of an aide memoire to the applicant’s submissions concerning the timing of various events, and would not be characterised as evidence on normal principles.  So far as the text message and the call logs are concerned, they are properly characterised as ‘new’ evidence rather than ‘fresh’ evidence, because they were available at the time of trial or could have been discovered with reasonable diligence.  As this Court observed in Wheeler v The Queen, ‘[n]ew evidence will only be received by an appellate court if the evidence is strong enough to show that the appellant is innocent or that a doubt as to the appellant’s guilt exists such that the conviction should not be allowed to stand’.[16]

11. The text message was a complaint by the skipper that the applicant had – unfairly – not provided methamphetamine to the complainant as he had apparently agreed to do, in circumstances where she had gone to a degree of effort to source the methamphetamine for the applicant and he had made ‘good money’ during his last stint at sea.  The applicant sought to place reliance on this message for three purposes.  First, it demonstrated that both the complainant and the skipper felt antipathy towards him and so had a motive to make a false allegation of rape against him.  Second, it undermined the credibility of the accounts given by the complainant and the skipper to the effect that the complainant was annoyed because the applicant wanted her to arrange a party, when in truth the source of her annoyance was that he had not provided her with methamphetamine.  Third, it demonstrated that he had ongoing and extensive communications with the skipper and the complainant in relation to ‘drugs and sex’.  The import of that last submission would seem to be that the communications were indicative of, or at least consistent with, a continuing willingness on the part of the complainant to engage in sexual activity with him.  Those submissions must be rejected.

12. The applicant stated he had told the counsel who represented him at the trial that the complainant was upset over methamphetamine rather than any request by him to organise a party, but that his counsel advised him to ‘veer away from any talk of drugs’ and would not pursue that line of questioning.  That would seem unlikely in circumstances where many of the questions put by counsel in cross-examination were directed to drug use on the part of the complainant, the skipper and the applicant.  A more likely explanation for the failure to pursue the matter is that it was likely to show the applicant in a poor light, and unlikely to yield any advantage in terms of convincing the jury that the complainant made a false allegation of rape on the basis of a gripe over drugs.  In any event, the applicant subsequently provided the methamphetamine to the complainant, making it even less likely that she had some motive to lie on that basis.  That single text communication also provides no support for the contention that there had been extensive communications in relation to ‘drugs and sex’, or that the complainant was receptive to further sexual activity with the applicant.

13. The call logs record an outgoing telephone call of one minute’s duration from the applicant’s mobile telephone number to the complainant’s mobile telephone number on Tuesday, 10 July 2018, some three days prior to his return from sea on Friday, 13 July 2018.  The call logs also record a number of telephone communications between the applicant and the complainant on 13, 14 and 15 July 2018, which was at a time after the applicant had returned from sea.  The applicant asserts on this basis that the complainant was lying in her evidence when she said that she did not have telephone contact with him when he was at sea.  As already described above, the complainant’s evidence on the topic was a little more equivocal than was represented by the applicant.  The relevant passage in the cross-examination was as follows:

    Because you had mobile telephone contact from time to time when his boat was within range, did you not?  – – – I don’t believe I did, no.  I believe that he did have my number at one point, but I never had him on Facebook and I – I love my Facebook.  I don’t believe that to be true.  Possibly, I – but I honestly don’t believe that.

14. As is apparent from that extract, the complainant conceded that it was possible that there was some telephone contact while the applicant was at sea.  However, it is unsurprising that the complainant had no recollection of a one minute telephone call from the applicant which took place 12 months previously.  It was never put to her in cross-examination that there was a call at some specific time about some specific subject matter which might have prompted her memory.  If the call logs had been produced and the complainant cross-examined in relation to those records, she would presumably have accepted that a telephone call took place at that time. 

15. None of the criticisms of the complainant’s evidence disclose inconsistencies or discrepancies of a kind which would lead, on a review of the whole of the evidence, to a conclusion that it was not open to the jury to find the accused guilty of the offence charged.

16. The applicant’s oral submissions and handwritten documents present a somewhat unfocused commentary on evidence given at the trial, and include sentencing submissions and remarks.  They also include reference to the contents of a statutory declaration of at least one witness, which would not appear to have been received into evidence at trial.  By reference to those matters which have been traversed above, the applicant highlights his disagreement with the evidence led in the Crown case and asserts purported conflicts or discrepancies between evidence which supports the guilty verdict and evidence which, he says, shows that he is innocent (or at least raises a reasonable doubt as to his guilt). The following passage typifies the applicant’s approach:

    When considering all the facts and then tying it all in with the evidence, there is no possible way that the verdict matches any reality or the truth of what happened in this event.

    Believe me, I know, I was there remember.

    There is no reason to question my belief; I have told the truth all along.

1. The jury’s verdict provides a powerful reason to question his belief.  The applicant’s submissions in relation to the complainant’s credibility depend on the applicant’s version of critical events, which the jury clearly did not accept.  As the respondent submitted, the basis of many of the applicant’s attacks on the verdict is simply that the complainant’s evidence was inconsistent with his own evidence.  So much is apparent from the fact that the high point, although not the end point, of the applicant’s written materials was that the jury’s verdict of guilty was based on the ‘inconsistency and lies of the prosecution and complainant’, and was the result of ‘minimal’ deliberation time on the part of the jury.

2. As to the last criticism, the jury’s deliberation time was said by the applicant to have been approximately three and a half hours, which was insufficient to enable the jury to have ‘thoroughly upheld their responsibility in respectfully considering the evidence at hand’. The applicant contends that ‘the jury has proven that they are a body that cannot be entrusted with the main responsibility in determining guilt or innocence, when clearly they can’t even be trusted with sufficiently addressing the evidence that was available to infer’. He then submits as follows: ‘When the evidence is looked at on the whole, it is clearly obvious that the complainant is an untrustworthy witness and her evidence should not have been accepted’. The fact that the jury deliberated for three and a half hours is unexceptional, and it is not possible to draw any inference in favour of the applicant’s contentions from that fact.

3. The applicant’s repeated references to the fact that he was the one who contacted police for help on the morning in question is also not determinative of the matter.  That fact was clearly before the jury, the jury had the benefit of viewing the body worn video recordings of the applicant’s complaints and presentation at that time, and there is a plausible explanation for the applicant’s conduct in calling police which is in no way consistent with his innocence.  The applicant has not identified or established anything in the nature of an objective obstacle which would stand in the path of the jury’s reasoning to a guilty verdict.  He has not identified any basis on which it could be said that the jury must (as distinct from might) have entertained doubt about his guilt.[17]  Accordingly, there are insufficient prospects of success on appeal to warrant a grant of leave.

   Disposition

4. None of the applicant’s contentions has merit, and the appeal has no prospects of success.  Accordingly, leave to appeal is refused.

______________________________

[1]      Criminal Code 1983 (NT), s 429 (2); Supreme Court Rules 1997 (NT), r 86.22(6). 

[2] Criminal Code, s 410.

[3]See the observations of the Court of Criminal Appeal in Stuart v The Queen [2010] NTCCA 16 at [31]-[33].

[4]      MLW v The Queen [2022] NTCCA 2 at [59]-[67]; McDonough v The Queen [2021] NTCCA 9 at [7]-[14]; Foster v The Queen [2021] NTCCA 8 at [2]-[4]; Willcocks v The Queen [2021] NTCCA 6 at [18]-[24]; FN v The Queen [2021] NTCCA 5 at [15]-[21]; Lynch v The Queen [2020] NTCCA 6 at [16]-[22].

[5]      M v The Queen (1994) 181 CLR 487 at 492-493 per Mason CJ, Deane, Dawson and Toohey JJ.

[6]      SKA v The Queen (2011) 243 CLR 400 at [11]-[14]; GAX v The Queen (2017) 344 ALR 489 at [25]; Pell v The Queen (2020) 268 CLR 123.

[7]      SKA v The Queen (2011) 243 CLR 400 at [24] per French CJ, Gummow and Kiefel JJ.

[8]      Pell v The Queen (2020) 268 CLR 123 at [39].

[9]Pell v The Queen (2020) 268 CLR 123.

[10]    M v The Queen (1994) 181 CLR 487 at 494 per Mason CJ, Deane, Dawson and Toohey JJ.

[11]     Libke v The Queen [2007] HCA 30; 230 CLR 559 at [113].

[12]Pell v The Queen (2020) 268 CLR 123 at [44]-[45]; see also Tyrell v The Queen [2019] VSCA 52 at [70].

[13]Foster v The Queen [2021] NTCCA 8 at [4] per Grant CJ, Kelly and Brownhill JJ.

[14]See Lynch v The Queen [2020] NTCCA 6 at [38], citing BCM v The Queen [2013] HCA 48; 303 ALR 387.

[15]    See Lynch v The Queen [2020] NTCCA 6 at [38], citing R v M, WJ [2004] SASC 345.

[16]Wheeler v The Queen [2020] NTCCA 10 at [7]; citing Ratten v The Queen (1974) 131 CLR 510 at 517-518; Mickelberg v The Queen (1989) 167 CLR 259 at 301; R v Abou-Chabake [2004] NSWCCA 356 at [63].

[17]Libke v The Queen (2007) 230 CLR 559 at 596-597, per Hayne J (Gleeson CJ and Heydon J agreeing).