O'Rafferty v The Queen
[2014] ACTCA 35
•21 August 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | O’Rafferty v The Queen |
Citation: | [2014] ACTCA 35 |
Hearing Date: | 6 May 2014 |
DecisionDate: | 21 August 2014 |
Before: | Murrell CJ, Penfold and Ross JJ |
Decision: | 1. The appeal is allowed, and the verdict and conviction are set aside. 2. There is to be a new trial. |
Category: | Principal Judgment |
Catchwords: | CRIMINAL LAW – Appeal and New Trial – defence case not properly put to jury by trial judge – miscarriage of justice – appellant lost a real chance of acquittal – appeal allowed – new trial ordered. |
Legislation Cited: | Evidence Act 2011 (ACT), s 116 Supreme Court Act 1933 (ACT), ss 37O, 37O(2)(a)(iii) Criminal Appeal Rules (NSW), r 4 |
Cases Cited: | Domican v The Queen (1992) 173 CLR 555 Maraache v R (2013) NSWCCA 199 RPS v The Queen (2000) 199 CLR 620 |
Parties: | Kevin Henry O’Rafferty ( Appellant) The Queen ( Respondent) |
Representation: | Counsel Ms A Francis ( Appellant) Ms M Jones ( Respondent) |
| Solicitors Aboriginal Legal Service (NSW/ACT) Limited ( Appellant) ACT Director of Public Prosecutions ( Respondent) | |
File Numbers: | ACTCA 39 of 2013; SCC 148 of 2012 |
Publication Restriction: | Complainant’s name and identifying information |
Decision under appeal: | Court: ACT Supreme Court Before: Nield AJ Case Title: R v Kevin Henry O’Rafferty Court File Number: SCC 148 of 2012 |
The Court:
Introduction
Kevin O’Rafferty and Jason Dodd went to trial on an indictment containing four counts:
(a)two counts of sexual intercourse without consent by Mr O’Rafferty acting in company with Mr Dodd: and
(b)one count each of an act of indecency without consent and sexual intercourse without consent by Mr Dodd acting in company with Mr O’Rafferty.
All the charges related to the same complainant. The offences charged against Mr O’Rafferty involved respectively cunnilingus and digital penetration of the complainant’s anus.
On 17 June 2013, a jury found Mr O’Rafferty guilty of one of the charges of sexual intercourse without consent, but not guilty of the other. Mr Dodd was found guilty on both counts.
Grounds of appeal
Mr O’Rafferty appeals against his conviction, on the following grounds, as set out in the amended notice of appeal:
(a)The trial judge failed to properly put the defence case.
(b)The directions in relation to the complaint evidence gave rise to a miscarriage of justice.
(c)The trial miscarried by reason of the trial judge failing to direct the jury in relation to the dangers of identification evidence as required by section 116 of the Evidence Act 2011.
(d)The verdict is unreasonable.
Operation of s 37O
Section 37O of the Supreme Court Act 1933 (ACT) specifies the orders that may be made in a conviction appeal.
37O Orders on appeal
(1)The Court of Appeal has the following powers in relation to the order appealed from:
(a)to confirm, reverse or amend the order;
(b)to give any order it considers appropriate, or refuse to give an order applied for;
(c)to set aside the order (completely or in part) and remit the proceeding to the court constituted by a single judge for further hearing and decision, subject to any directions the Court of Appeal considers appropriate;
(d)to set aside the verdict and order in a trial on indictment and order a verdict of not guilty (or another verdict) to be entered;
(e)to order a new trial, with or without jury, on any appropriate ground;
(f)to award enforcement of any order, or remit the proceeding to the court constituted by a single judge for enforcement of the order.
(2)The Court of Appeal on an appeal against conviction must—
(a)allow the appeal if it considers that—
(i)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
(ii)the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision of any question of law; or
(iii)on any other ground there was a miscarriage of justice; or
(b)dismiss the appeal.
(3)However, the Court of Appeal may also dismiss an appeal against conviction if it considers that—
(a)the point raised by the appeal might be decided in favour of the appellant; but
(b)no substantial miscarriage of justice has actually occurred.
Appeal grounds (a), (b) and (c) were argued on the basis that the failings in his Honour’s charge to the jury had caused a miscarriage of justice. An appellant who relies on a miscarriage of justice under s 37O(2)(a)(iii) has the onus of establishing that miscarriage.
Operation of r 5531
The first hurdle for the appellant is the operation of r 5531 of the Court Procedures Rules 2006 (ACT) (the Rules):
5531 Appeals to Court of Appeal—grounds of appeal against conviction or sentence
Unless the Court of Appeal otherwise orders, the following must not be allowed as a ground for appeal against conviction or sentence unless objection was taken at the trial by the party appealing:
(a) a direction given by the trial judge;
(b) the trial judge’s failure to give a direction;
(c) the trial judge’s decision about the admission or rejection of evidence.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order otherwise ordering.
This rule would appear to exclude reliance on appeal grounds (b) and (c) without order of this Court, as to which there has been no application under Pt 6.2 of the Rules.
In Munro v The Queen [2014] ACTCA 11, Burns J said at [130]-[131]:
In the present proceeding, there was no application made under r 5531 with respect to those grounds the appellant now seeks to agitate, which were not the subject of an objection at the trial. Appellants should not consider the provisions of r 5531 to be a formality which may be neglected. It is at the heart of the adversarial system that an accused chooses the manner in which his or her defence to criminal charges is conducted. Almost inevitably, this means that forensic decisions must be made on issues that arise in the course of the trial, such as objections to evidence or an objection to a direction given by the trial judge. The person best placed to make such an objection, by reason of familiarity with the basis on which the defence is being conducted and the atmosphere of the trial, is counsel for the accused. Where no such objection is taken, this Court is entitled to infer that counsel saw no unfairness or injustice in what was done.
The operation of r 5531 is itself sufficient to dispose of Grounds of Appeal (b)(i) and (b)(iii). In the event, I have considered those grounds on their merits, but future appellants should not assume this will always be the case.
10. Counsel for the appellant submitted, however, that a complaint about a direction or a failure to give a direction was not caught by r 5531 if the claim was that the direction or failure to give a direction had caused a miscarriage of justice. She relied on Regina v Demiroz [2003] NSWCCA 146 at [62] to [65] in relation to the asserted failure to give a direction about the identification evidence in accordance with the Evidence Act 2011 (ACT), although that case appears to have been decided without reference to r 4 of the Criminal Appeal Rules (NSW). No authority was cited for the proposition that the complaint direction was not covered by r 5531 if it was said to have caused a miscarriage of justice, but there may be an argument to the effect that s 37O of the Supreme Court Act, in identifying a miscarriage of justice as a ground for overturning a conviction, overrides any restriction otherwise applicable under r 5531.
11. Counsel for the respondent submitted that appeal ground (a), the trial judge’s failure to put the defence case to the jury, was also caught by r 5531. Counsel for the appellant also disputed this, relying on Maraache v R (2013) NSWCCA 199 (Maraache) at [83] and [102], in which the Court declined to apply r 4 of the Criminal Appeal Rules and gave leave for the appeal to proceed on the ground that the trial judge had failed to put the defence case to the jury (although in that case, the Crown took the position that if the Court found that the defence case had not been put to the jury, then it would accept that there had not been a fair trial, and would not seek to rely on r 4: at [84]).
12. In the event, we have not needed to resolve the question whether an appeal ground relating to a direction given by the trial judge, or a failure by the trial judge to give a direction, is caught by r 5531 even where it is said to have caused a miscarriage of justice.
13. Nor have we needed to determine whether a claim that the trial judge has failed to put the defence case to the jury is caught by r 5531. This is because, having considered that claim, we have concluded that in this case there has been a miscarriage of justice and accordingly, if leave under r 5531 were necessary, we would grant such leave.
The trial
14. The charges were laid in relation to events in the evening of 17 May 2012 or the next morning, at a flat occupied by Mr Dodd. The complainant told her story in a taped record of interview (TROI) with police that was conducted on 18 May 2012, the morning after the incident.
Outline of events
15. The complainant, who was 16 years old, had been living in a youth refuge and attending a local secondary school. Around 9.30 pm on 17 May 2012 the complainant had gone to Mr Dodd’s flat with a friend, CR. Mr Dodd, the appellant (sometimes referred to as “Rags”), and the appellant’s nephew Terence O’Reilly were at the flat. The complainant knew Mr Dodd fairly well, and had met the appellant on several previous occasions. The two young women had been drinking, and were quite intoxicated. CR went into one of the bedrooms and went to sleep. The complainant stayed in the lounge room with the men, and after a while she fell asleep on the couch.
16. The complainant’s evidence was that before waking up the following morning in one of the bedrooms, she woke briefly on three occasions during the night (identified as Episodes 1, 2 and 3 in the extract from her TROI below) to find herself still on the couch and the subject of sexual attention from one or more men; on each occasion she quickly slipped back into unconsciousness. This is detailed in her answer to one of the early questions in the TROI:
A8Either from the best of knowledge I was raped by two or three guys from twelve am this morning onwards to I don’t know that time. Um, what happened was I met up with a friend and we were going to go to her mate’s house, um, she’s known him for a while, so I thought it would be all “g”. Um, before then, I was drinking alcohol, by the time I got to my friend friend’s house, who is Jayson, who lives at Manuka at the Stuart Flats. I was very drunk and tired. When we got there, my friend went and laid down on the bed and went to sleep. I stayed out in the lounge room and chatted to the people that were there, which included Jayson, Kevin and Terrence, Kevin’s nephew.
Q9Yep.
A9After that I had a little bit more to drink then I finished drinking at around ten thirty, eleven. After getting to Jayson’s at, I think nine thirty, nine o’clock, I’m not too sure on the time. Um, I – yeah, pretty much I went and checked on my friend, she was still asleep, so I was like, all right, cool. I came back out, have another drink, um, not feeling too good. I lied down on one of the couches. And I don’t know, I pass out at like – I don’t know, eleven forty-five, midnight. And then I don’t know what happened, but I do remember [Episode 1] like kind of waking up and seeing three men around me, two were on top of me, one was licking my genitals, the other was sucking my nipples and playing with them. Um, then I don’t know what happened. Then the next time I think I went back and passed out. And then what happened was then the next time I opened my eyes [Episode 2], Jayson, I think or Kevin, I don’t know, someone was fingering me. And then I went back into unconsciousness and then, yeah, the next time I opened my eyes [Episode 3], um, yeah, um, Jayson is now on top of me and put his penis into my vagina. I couldn’t do much because one, I was underneath him, two, I think Kevin was kissing me, so I couldn’t talk and all that. And I didn’t feel like I could like move at all. And then pretty much, I passed out again and I wake up in the morning and pretty much I remember I was asleep on the couch. I vaguely remember like the things that I remember seeing, like to me it’s like really did that happen or is that a dream or yeah. And then when I awoke, I was on a bed with no clothes on from the waist down. I had my bra on, and my T-shirt that I was wearing. Um, I hopped out and looked around for my clothes. Um, I couldn’t find my underwear, I found boxers that I was wearing and my pants. Put them on, I saw Jayson asleep on the couch, and Kevin and Terrence were no where to be seen. They must have gone back to wherever they were staying. Um, and yeah, I left as soon as I could. Walked, - I was walking back to the refuge. And school was along the way, I stopped off at school, borrowed a friend’s phone to call the refuge to come and pick me up from school. And yeah, also I remember when I woke up in the morning, my vagina and my anus were really, really like were in extreme pain, like really aching and like yeah, sore.
17. The complainant gave the following more detailed description of what the appellant had done to her:
Q151Okay. And you’ve said the next thing you woke up and there were three men. Is that right?
A151Yep.
Q152Tell me everything you remember about that part?
A152Um, I opened up my eyes, like just and I feel like shit and I just like, kind of like, look up, and I’m just like – I see Terrence, Kevin and Jayson.
Q153And when you’re motioning with your hands, what do you mean, what are you doing there? Where they were standing is that what you?
A153Yeah.
Q154Yeah. Do you think you’d be able to draw - - -
A154Where they were?
Q155On the couch yeah, when you woke up at that point, yeah.
A155My head and then Kevin was in that area, Terrence was over here and Jayson was like here.
Q156And the circles that you’ve drawn there for Jayson and Kevin, you’ve drawn them over the top of where you’ve indicated you were laying. What do you mean by that?
A156Um, they were touching me in those places, um, which is covered by the circles.
Q157Okay.
A157Yep.
Q158Okay. So you’ve woken up, you’ve got Kevin and Jayson, you said that they were touching you in the areas covered by the circles. So tell me about touching?
A158Oh, do I have to again?
Q159I know it’s difficult we just need to try and get, for us, I’d like to get as much possible detail on everything that you remember. And so if you can run me through it. So just – you’ve woken up and you’ve seen Jayson, Terrence and Kevin. And you’ve said that – you’ve indicated by the drawing, Jayson and Kevin were touching you. Just tell me everything you remember about that part?
A159Well, um, Jayson was touching my breasts, sucking on them. Kevin was playing with my genitals using his mouth and fingers.
Q160And when you say...
Q160Both anus and vagina, yeah, it was, yeah, and then I passed out again.
Q161So when you initially went to sleep what were you wearing?
A161Everything.
Q162Everything you described earlier?
A162Yep.
Q163And when you’ve woken up, the first time, to find Jayson, Kevin and Terrence around you. What were you wearing then?
A163I couldn’t – oh, I was still wearing my bra and my T-shirt, no pants, no underwear, no boxers.
Q164Okay. So if I can take you to the part where you said that Kevin was licking and touching your vagina and anus is that what you said?
A164(No audible reply)
Q165Tell me everything you remember about that?
A165That’s pretty much what I remember about that.
Q166Okay. And you say he was touching and licking. Can you tell me – can you describe to me what was actually happening?
A166Yeah, he was fingering my anus and licking my vagina.
Q167Whereabouts on your vagina was he licking?
A167Near the clitoris and inside.
Q168Okay. And when you say “licking”, tell me more about that?
A168Sucking, licking.
Q169And you said that was around your – near the clitoris and also inside. And when you say, “inside”, what do you mean?
A169He stuck in his tongue and wiggled it around.
Q170Inside what though?
A170Inside my vagina.
Q171And when you say he was fingering your anus, tell me about that?
A171That was – that’s it, he was just fingering.
Q172How did you know he was doing that?
A172I could feel it.
Q173How did you - - -
A173I’ve been fingered before, not in the anus, but I know what fingering feels like, and if he was fingering my vagina, it would have felt different to my anus.
Q174How did you know it was his finger?
A174It was slim and he spread his two fingers apart, pretty much at one point, and I was like, nuh, it’s his fingers.
Q175Okay.
A175And that’s when I realised.
Q176So when you say he spread his fingers apart, how many fingers was he using?
A176Two.
Q177Two. Okay. And at what point did he spread them apart?
A177I don’t know at random, random times.
Q178So you’ve woke up and Kevin was licking and sucking around your clitoris and also his tongue was going inside your vagina. Is that what you’ve said, just so I’m clear?
A178Yes.
Q179Yep. And at the same time his two fingers were inside your anus. Is that right? Okay. And how long do you think that lasted?
A179I don’t know.
Q180Don’t know.
A180My eyes were like open, I don’t know, it was a very short time and then, yep.
Q181Okay. And in terms of what you were feeling, can you tell me about that?
A181I was feeling very scared. I didn’t – like I was in shock pretty much. I couldn’t really like talk because my mouth was like really full of like saliva and stuff and I was like, yeah.
Q182Okay. And focusing on Kevin, did he say anything?
A182Not that I heard.
...
Q196Okay. And back to Kevin, where was he in relation to you on the couch?
A196He was down – he was pretty much right in-between my legs.
Q197What part of his body was between your legs?
A197His head.
Q198Okay. And where was the rest of his body. Do you remember?
A198Like he was kind of on the couch – he had one of his – like hands on my left leg keeping it on the ground whilst his other hand was like fingering my anus and licking my vagina and, yeah.
...
Q214Yep, okay, no worries. So just before that last suspension we were talking about Kevin and whether or not you remember what he was wearing during that first time that you woke up. Can you tell me – tell me what you remember?
A214I don’t remember what Kevin was wearing.
...
Q240Okay, okay. And I know I asked you this earlier, but do you remember how long when you’ve first woken up and Kevin was down near your vagina and Jayson was touching and licking your breasts. How long that lasted for?
A240I think I was like there for like – I knew what was happening, for like in between five and ten seconds.
Q241Okay, okay, no worries. So you passed out again and what’s happened then?
A241Either one, two, either Kevin is kissing my lips so I can’t talk and nuh, I can’t remember which one is which.
...
Q250Okay. So the areas that while this person, you’re not sure who it was. Is that right?
A250I’m totally confused.
Q251That’s all right, take your time.
A251Um, I know that one time Jayson was kissing my lips but then I also – I remember it was either this time or like the next time that I woke up that Kevin was also, like they’d changed like spots.
18. The sketch prepared by the complainant during this conversation was as follows:
19. When she awoke the next morning wearing only her bra and t-shirt, the complainant found most of her other clothes (although not her underpants), left the flat, and went to school, where she made her first complaint about the incident.
20. In evidence given at a pre-trial hearing and recorded for the trial, the complainant was asked about Answer 9 quoted at [16] above:
You then say, “And then I went back into unconsciousness, and then, yes, the next time I open my eyes, yes, Jason is now on top of me and has put his penis into my vagina. I couldn’t do much because I was underneath him; (2) I think Kevin was kissing me, so I couldn’t talk and all that.” So you said to police you think Kevin was kissing you. Is that right?---Yes, because it was either Kevin or Jason. Someone was doing it.
Somebody was doing it?---Yes.
Then pretty much – I’m sorry. And, “I didn’t feel like I could move at all.” And then you go on to say, “And then pretty much, I passed out again, and I wake up in the morning. And pretty much, I remember I was asleep on the couch.” So when you woke up in the morning, you were asleep on the couch?---(No audible reply)
That’s what you told police?---I do not remember that at this stage.
All right. You then say, “I vaguely remember, like, the things I remember seeing. Like, to me, it’s, like, really did that happen or is that a dream or – yes.” You recall saying that to police?---Yes.
And that’s what your memory still is. You can’t say whether this was a dream or not, can you?---No, but I do have – I do know something, that when I woke up at – yes.
Your answer to my question was that you can’t say whether or not this was a dream. Is that right?---No, but I can say quite firmly that I know that that was not a dream. It did feel like it may have been a dream when I woke up. But shortly after, I realised that it wasn’t. And I still stand by it was not a dream.
Complaint evidence
21. Before the police interview mentioned at [14] above, which began at 3.54 pm on 18 May 2012, the complainant had made complaints to several people.
22. The complainant’s first complaint about the incident was made to several school friends shortly after she left Mr Dodd’s flat, as follows:
“Hey, guys. Something happened to me last night. I didn’t like it. Something happened at Jason’s house whilst I was there. [CR] was there with me, but in the morning, she wasn’t. I don’t know where she is or what happened. Can I please borrow someone’s phone so I can call the refuge.”
23. GF in evidence reported the complaint as follows:
[AB41, lines 9-10, lines 20-44]
She said that the night before, three men had raped her.
...
All right. So when you said that she told you that she’d been raped, if I can take you back a bit, did she give you any details of what happened before that? Just that they’d gone over to Jason’s flat to have a bit of a drink, probably smoke some weed and just, like, chill out, basically.
Okay, and – yes? And she told me – yes, she told me she was quite drunk and that she’d actually passed out. And when she passed out [CR] had had a fight with Jason and had been asked to leave.
And did she say anything else about what happened when she passed out? That she woke up with three men on top of her.
And did she say anything else about them being on top of her? She said that they told her to, “Shut up bitch” and that she had tried to fight, but could not get them off her.
And so as for what happened that morning when she arrived at school did she tell you what happened between then, and arriving at school? She just said that she’d basically gotten up and ran to school straight away.
And when she arrived did you notice anything about her physical appearance? Yes. She was wearing no shoes. She had a tear in her shirt. Her jeans had no top button and the fly was broken, so they were gaping at the front and she just looked quite distraught, and was crying and yes.
24. JP, another school friend, said that the complainant looked “a bit dishevelled” when she arrived at school, and the zipper on the complainant’s jeans was broken. The complainant said to her “I’ve been raped”, at the Manuka flats, by a man she named as Jason, and that Kevin and his nephew were involved.
25. CR was at school when the complainant arrived on the morning of the incident. She gave the following evidence:
All right, so you said that she looked distressed and so did you have a conversation with her?---Yes, I did. So the first thing was we asked her how she was and she just basically went straight out with it and said that Rags, Jason, and she mentioned some – a third person, that she was not sure who he was but suspected to be Rags’ cousin, had raped her. And she did not actually specify that it was penis to vagina intercourse but she did imply it and that was definitely how we interpreted it. She explained that she was going in and out of consciousness throughout the incident and that – yes, that that was pretty much all she could remember from it, and that she was just – could not really communicate much more than that. Me and [GF] decided to start asking her some simple important questions like if she had had a shower so she could get a rape kit and then our friend Jillian came into the conversation and we decided to take her to the refuge and the – one of the workers there, Mich, took over it from there. But we explained what happened and [the complainant] became very emotional at that point, basically, just expelled all her emotions so – yes.
And did you notice anything about her physical appearance?---She was wearing the same clothes as she was the night before except I cannot remember exactly what it was. But I definitely noticed that at the time.
26. At the refuge, the complainant spoke to two of the support workers, Michelle Kirkwood and Lee Diep, but both of them heard the details of the complainant’s complaint only from her school friends.
27. Dr Catherine Sansum gave evidence of her consultation with and examination of the complainant, which began at 11.36 am on 18 May 2012. The complainant reported being sore in the vaginal and anal regions.
28. Dr Sansum’s report became Exhibit G in the trial. Some of the material quoted below was recorded by a nurse who was present at the examination; Dr Sansum confirmed that page 6 of the report, as corrected, reflected the complainant’s report of the incident (the contents of the report as corrected, but not the corrections themselves, are shown in the table reproduced at [32] below).
29. The report recorded the names of the assailants as Jason, Kevin and Terence, and the circumstances of the assault as follows:
-Drunk at Jasons flat.
-“Woke up because I had passed out”
-3 men – Jason, Kevin and Terence were there
-“Passed out again on couch”
-Woke in the morning very sore, around vagina, bottom.
-Woke up in bed, Jason was asleep on the lounge. Had bra and t-shirt on. Naked waist down.
-No one else in the flat
-“Then I left”
-“Couldn’t find undies to put on, only boxer shorts”.
30. In her report of the consultation with the complainant, the details of the sexual assault as she reported them were recorded by Dr Sansum as follows:
-She remembered being held / grabbed by Jason and Kevin
-Jason and Kevin had been “lying on me”
-Her vagina, anus and mouth had been penetrated by Jason’s penis and fingers
-Her vagina and anus had possibly been penetrated by Kevin (she thought this had happened but was unsure regarding the exact nature of the penetration)
-There had been oral contact from Jason to her vagina, anus, mouth and breasts
-There had been oral contact from Kevin to her vagina
31. Under the heading “Summary of Offence”, the report recorded that both Jason and Kevin had grabbed or held her, and restrained her by lying on her, but Terence had done neither. The complainant was unsure in relation to all three men whether they had struck her with their hands, choked or strangled her, or bitten her. She denied that any of them had kicked her or burned her. That is, her description of the non-sexual aspects of the incident did not distinguish between Jason and Kevin.
32. In relation to details of the sexual contact, the complainant’s answers were recorded as follows in relation to Jason and Kevin (she was recorded as “Unsure” in all respects about Terence, and “Unsure” about all three men in relation to ejaculation):
33. Dr Sansum in evidence described what the complainant had told her as follows:
And she said that she had been assaulted at sometime after midnight on Friday, 18 May 2012?---Yes.
She said she had been consuming alcohol and was in Jason’s flat?---Yes.
And passed out?---Yes.
She woke up and noticed that three men were present, Jason, Kevin and Terrence?---Yes.
She passed out again on the couch?--- That is correct.
When she awoke in the morning she was sore around the vaginal and the anal area?---Yes.
She woke up in a bed, Jason was asleep on the lounge?---Yes.
When she awoke she was wearing a bra and T-shirt, she was naked from the waist down?---Yes.
And she found her boxer shorts but could not find her undies?---Correct.
And said, and I quote, “Then I left”?---Yes.
Now, at page 5 and six of your examination notes she went into some detail in terms of the nature of the alleged assault?---Yes.
And was it the case that she said she remembered being held grabbed [sic] by Jason and Kevin?---Yes.
Jason and Kevin had been “lying on me”?---Yes.
Her vagina, anus and mouth had been penetrated by Jason’s penis and fingers?---Yes.
Her vagina and anus had possibly been penetrated by Kevin. She thought this had happened but was unsure regarding the exact nature of the penetration?---Yes.
But there had been oral contact with Jason to her vagina, anus, mouth and breasts?---Yes.
And there had been oral contact from Kevin to her vagina?---That is correct.
And you undertook an examination?---Yes, I did.
And can you please explain to the jury what that examination revealed?---The examination – first of all, we do a head to toe examination looking for any other injuries, and then we do a genital examination. And the examination that we did for [the complainant] showed that she had a 5-centimetre linear abrasion or a scratch on her right forearm. The genital examination then revealed that she had mature female genitalia. There were two pieces of foreign matter on the inner surfaces of the labia minora and I collected those with a swab and sent them for forensic analysis. There were three 2 to 3 millimetres superficial linear abrasions or scratches in the area known as the posterior fourchette, which is where the two labia major meet at the base of the vagina. There was marked tenderness with the examination and insertion of the swabs, so that was into the vagina, and also marked anal tenderness with the examination and insertion of the swabs.
...
Now, you formed the conclusion – well, you formed the observation that the visible injuries noted on [the complainant] were abrasions?---Yes.
And you’ve explained to the court what abrasions are and you’ve said that, “The linear abrasions noted in the genital area were on the posterior fourchette,” and you said, “This is the area at the base of the vagina where the labia major meet.”?---Yes.
Now, you’ve said, “Injuries such as those noted are indicative of the application of blunt force trauma.” What do you mean by that?---Well, abrasions is, as I’ve said there, are caused by a combination of blunt force and friction So, the presence of abrasions, whether it’s to the vagina or anywhere, indicates that there’s been the application of blunt force combined with friction. It’s what the injury is. It’s how they’re caused.
And is that also due to the anatomy of what particular areas?---Well, abrasions can occur anywhere depending where the force has been applied.
And just in terms of day to day life, in your medical experience what’s the likelihood of sustaining abrasions to that area?---Sustaining abrasions to that area just with what we do with our everyday life would be incredibly unusual. It’s an area that’s normally protected by the anatomy, by clothing.
The appellant’s presence in the flat
34. The complainant’s friend CR, with whom she had gone to Mr Dodd’s flat, gave evidence about events during the night in question (although not about the sexual assault). When CR and the complainant arrived at Mr Dodd’s flat in the evening they were very intoxicated; as well, CR had had an asthma attack and was hoping to find a puffer. She said she had gone into one of the bedrooms and fallen asleep, and had woken up sometime later. She gave this evidence:
So at some point you said that you woke up after you went to sleep?---Yes.
And do you remember what time it was?---No, I do not remember exactly. All I know it was late. It was probably somewhere between 9 and 11 o’clock.
...
All right. So you said that you went to sleep either in Jason’s room or the spare room?---M’mm.
And you woke up?---M’mm.
And what happened when you woke up?---So I was still intoxicated. I walked out. [The complainant] was passed out. Jason and Rags - - -
Let me stop you there. Where was she passed?---She was passed out on the couch that was on the – that was, like, up against the wall next to the entrance door, so - - -
...
And then what happened?---Okay, so Jason and Rags were both there and then as – like, we were all just hanging out and then Rags would have left and then me and Jason began having an argument about the events of that day, which then became very heated, and many previous arguments were brought into that argument. And it escalated very quickly, to the point where eventually I decided that I was no longer comfortable being friends with him at all and I decided that I wanted to terminate the friendship once and for all. So I packed up all of my bags, all of my belongings, and I contacted by boyfriend at the time, Matthew Hull, to ask him to come and pick me up. And – and then I exited the flat and left [the complainant] there passed out.
Okay. Do you remember what time that was that you left?---Not exactly, but I would say it was approximately 1 o’clock.
35. In cross-examination, she gave the following evidence:
Did you eventually make a statement to the police?---I did.
And you have seen a copy of that statement?---Yes.
Now, that statement was made in March of this year, do you agree with that? ---Yes.
In the statement did you say this at paragraph 22, “After Rags left the unit there was just myself, Jason and [the complainant] who was passed out on the couch left inside.”?---Yes.
Did you say, “I then started to talk to Jason about the previous events of the day when he had told my boyfriend to leave his unit because of us kissing.”? ---Yes.
“And a heated argument escalated from here” - - -?---Yes.
- - - “resulting in us yelling, screaming and swearing at each other and the argument was initially about the events where he had told Matt to leave the unit.”?---Yes and my other friends.
And moved into other disagreements between the two of you?---Yes.
And did you tell, in your statement you say this, “This argument lasted somewhere between 2 am and 4 am that morning.”?---No I don’t think so.
Sorry, “Lasted until somewhere between 2 am and 4 am that morning.”?---Yes I may have said that, yes.
...
And at the time of leaving the flat [the complainant] was still on the couch passed out?---Yes
And did you look at [the complainant] while she was passed out?---Yes.
How was she clothed?---As I mentioned earlier I don’t remember exactly what she wearing but she was wearing adequate clothing. That’s all I can - - -
When you say adequate clothing you mean her top half was covered?---Yes, absolutely. She was wearing a T-shirt that would have been covering her neck. She always wore, sort of, boyish clothes you could say.
And what about the bottom half?---She was wearing, as I said I can’t be sure exactly, but she always wore boyish clothes and her favourite thing to wear was, you know, sort of long shorts kind of thing but I can’t be sure exactly what she was wearing that day. All I know is that she was very adequately clothed at that point in time.
Could you see her legs?---Her calves probably. I’m pretty sure she, like, yes, she may even had had pants on. I can’t be exactly certain, sir.
Can I ask you this, there was nothing about her clothing that concerned you at the time?---No, absolutely not.
...
Mr LAWTON: [CR], in your evidence this morning you said that before you had the argument with Mr Dodd, Rags had left the unit?---Yes.
And your evidence this morning was that when you left the unit after that argument and put your stuff into your boyfriend’s vehicle the only people left in the unit, effectively, were Mr Dodd and [the complainant]?---Yes.
You spoke to the prosecutors about a week on 12 June. I’m sorry, a couple of days ago on 12 June didn’t you? Did you tell them this, “That after Rags left I’m sure that Rags came back. As it was night he was there and stayed there.” Do you recall telling that to the prosecutor?---No I don’t think so.
So, just to absolutely clear, your evidence is that Rags had left the unit before this screaming match with Jason?---Yes but also to be absolutely clear [the complainant] was 110% sure that he was involved in the incident that night and - - -
I’m sorry just - - -?---Yes. Well, I did answer your question.
36. In re-examination, CR said:
...And he asked you some questions particularly about you saying, “After Rags left I’m sure Rags came back and seeing it was night he was there and stayed there.” And he said that you don’t remember saying that. Now, I just want to clarify this with you so things are sure?---Yes.
So, you said that you had the asthma attack and you went to sleep?---Yes.
When you woke up from the asthma attack do you remember Rags being there?---Not 100% but yes I’m – yes that’s exactly how I remember it. So, once again I was very intoxicated but that’s exactly how I remember it, yes, he was there. And also, as I said earlier, I’m pretty sure Luke was there as well.
And do you remember how much time passed between waking up from the asthma attack and you going?---No, not exactly.
And just in terms of your memory of the evening, you’ve said that you were very intoxicated. How has that affected your memory of the evening?---Well, it was already very blurry the day afterwards and as time’s gone on it’s become more and more blurry obviously. It’s been almost a year since the incident so, yes, it’s kind of hard to pinpoint events precisely.
Forensic evidence
37. Evidence was given by an AFP Forensics Officer to the following effect:
(a)She had received for forensic examination the following items:
(i)fingernail scrapings from Mr Dodd (both hands);
(ii)fingernail scrapings from the appellant (both hands);
(iii)several items of clothing;
(iv)DNA reference samples from Mr Dodd and the appellant;
(v)the complainant’s medical examination kit.
(b)One pair of men’s underpants (accepted to be Mr Dodd’s underpants) was tested and revealed a DNA profile from which the appellant was excluded as a contributor but from which Mr Dodd and the complainant could not be excluded, and it was 170 billion times more likely that the mixed DNA profile originated from the two of them than from Mr Dodd and an unknown contributor. There was also an insignificant quantity of DNA from a possible third contributor.
(c)The quantity of DNA on the underpants was quite high, which made it less likely that it had been deposited on the underpants by secondary or tertiary transfer.
(d)Saliva is usually a good contributor of cells containing DNA.
(e)No male DNA, no semen and no saliva was detected in the various genital swabs from the complainant taken by Dr Sansum. However, a woman’s vagina is “particularly dense with cells”, and the “heavy density” of the woman’s cells may “overwhelm” any cells from other people that are present in a low density; “our tests can detect samples that have a low level of DNA, but if the primary source is so significant, there’s potential of not seeing that secondary, really low level of DNA, if it is there”.
(f)DNA was found in the appellant’s fingernail scrapings, but the appellant himself was the major contributor and there was not enough information to allow the minor contributor to be identified.
(g)A partial male profile, from which Mr Dodd and the appellant could excluded as contributors, was found in apparent saliva from the complainant’s breast.
The accused
38. Mr Dodd gave evidence at the trial. The appellant did not. Nor did the appellant’s counsel cross-examine Mr Dodd.
Appeal ground (a) – failure to put defence case to jury
Complaint evidence
39. Apart from the complaint evidence, the Crown case:
(a)in relation to both accused – relied on medical evidence that indicated that the complainant had been subjected to rough sexual activity involving among other things “blunt force trauma”; and
(b)in relation to Mr Dodd – relied on DNA evidence linking him with the complainant.
40. There was no DNA evidence linking the appellant with the complainant, but there was DNA material from which the appellant was excluded as a possible contributor (the material found in Mr Dodd’s underpants).
41. There was evidence suggesting that the appellant had left Mr Dodd’s flat at some point during the night, and might not have been present at the time of the incident described by the complainant (at [34] to [36] above). The only specific evidence of his presence at the time of the incident came from the complainant.
42. Thus, in relation to the appellant, the complaint evidence was particularly important.
Inconsistencies in complaint evidence
43. Counsel in written submissions said that “the complaint evidence was not internally consistent and was not consistent with the complainant’s account at trial as to the conduct of the three men.” The evidence, and the relevant inconsistencies, were identified by counsel as follows:
(a)In a complaint to GF, the complainant said that there were three men on top of her and that she tried to fight but could not get them off her. This was inconsistent with the complainant’s evidence that was contained in her TROI, given in the pre-trial hearing, and explained in the diagram she drew which was described as showing the areas in which the men were touching her (Questions and Answers 152 to 156, quoted at [17] above); that evidence was to the effect that Mr Dodd was on top of her kissing her breasts, the appellant was between her legs and Mr O’Reilly was on her left.
(b)In Dr Sansum’s report, recorded in Exhibit G, the complainant is recorded as attributing an act of cunnilingus to both Mr Dodd and the appellant, but at no other point (for instance in her police TROI or in her oral evidence at the trial) did she describe Mr Dodd performing cunnilingus.
(c)Similarly, as recorded in Exhibit G, the complainant attributed anal penetration to both Mr Dodd and the appellant, but gave no evidence otherwise of Mr Dodd penetrating her anus.
Directions about complaint evidence
44. The trial judge gave the following directions about the complainant’s complaints:
Now, members of the jury, you should carefully examine the evidence of the complainant. You should carefully examine that evidence because, as I have said, there is only four people who could know anything about whether something happened and, if it did, what it was. The second reason you should examine the complainant’s evidence carefully is, as I’ve said already, the Crown relies upon it, and the Crown has the onus, burden and obligation to prove the guilt of the accused beyond reasonable doubt, and that applies to each of them equally.
Members of the jury, if, upon your consideration of the complainant’s evidence, you accept it, then you are entitled to do so and you are entitled to act upon it. Of course, members of the jury, the complainant’s evidence is not the only evidence. You do not consider the complainant’s evidence in isolation, ignoring the other evidence. You consider her evidence in relation to the other evidence, cross-referencing it, so to speak, with the other evidence that you have heard to see whether, as I’ve said this already, there’s something which supports or undermines what she has said.
Now, I have told you, members of the jury, that you can accept the evidence of [JP, GF and CR] as to the complaint made by the complainant to them when she arrived at Narrabundah College. As I said to you, the law considers this, obviously, to be a complaint, and the way you can use it is this: you can use the complaint of having been raped made by the complainant to her three friends when she arrived at Narrabundah College in two ways. Firstly, in support of the thing complained of. In other words, members of the jury, the fact of the complaint can be used as evidence with other evidence of the thing complained of, of the rape.
Secondly, you may use the complaint in determining the weight, that is the value, that you will give to her evidence because the fact that the complainant complained of having been raped by the accused may assist you in your task of assessing the complainant’s evidence. And that is because, members of the jury, the fact that the complainant complained of having been raped may show consistency of conduct on the part of the complainant because, members of the jury, you would expect that, if somebody had been raped, as the complainant complained of having been raped, that person would complain about it at the earliest appropriate opportunity to someone in whom that person had confidence and trust.
You would think, members of the jury, that that is the conduct of a truthful person who had been raped and, therefore, the complainant’s evidence of having been raped may increase the weight, that is, the value, that you give to the complainant’s evidence of what she said happened to her.
Of course, members of the jury, in relation to the complainant’s complaint to her friends of having been raped, I tell you these two things: making a complaint about something does not make the thing complained of necessarily true, and repeating the complaint about something does not make the thing complained of any more necessarily true.
...
45. There were inconsistencies in the complaints as made by the complainant to the various recipients, but none of the inconsistencies described at [43] above was drawn to the jury’s attention by his Honour. In particular, the discrepancy between the complainant’s report to Dr Sansum that both Mr Dodd and the appellant had performed cunnilingus on her and penetrated her anus and the absence of any such allegations against Mr Dodd in any of the complainant’s narratives of the incident, was not pointed out to the jury.
Need to put defence case to jury
Authorities relied on
46. Counsel for the appellant relied on Maraache for the proposition that a failure by the trial judge to put the defence case adequately to the jury will produce a miscarriage of justice.
47. In Maraache, Emmett JA said at [73] and [74]:
In a criminal trial, a trial judge is bound to direct the jury as to any principle of law or rule of practice applicable to the case, and a misdirection or non-direction on such a matter will usually mean that the trial has miscarried. However, matters of fact and the arguments in relation to them are in a different category. A trial judge is not bound to discuss all the evidence or to analyse all the conflicts in the evidence and, by itself, the failure of a trial judge to do so does not mean that there has been any miscarriage of justice. Nevertheless, the requirement of fairness means, ordinarily, that the respective cases for the prosecution and the accused must be accurately and fairly put to the jury. However, that requirement does not oblige the trial judge to put to the jury every argument put forward for the accused.
Whether the trial judge is bound to refer to an evidentiary matter or argument ultimately depends upon whether a reference to that matter or argument is necessary to ensure that the jurors have sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence. If, having regard to the complexity of the factual issues for the jury to determine, the trial judge has not put the defence case adequately, such that the jury may misunderstand or not understand it, then the jury will not be in a position where they can properly act as judges of the facts and thus there will be a miscarriage of justice. The idea of a summing up is to present for the jury the issues of fact that they have to determine (R v Zorad (1990) 19 NSWLR 91 at 105). Consequently, the way in which the case was conducted and the inherent complexity of the factual issues to be determined necessarily bear on the extent to which the judge is bound to comment on, or discuss, the evidence. Discussion or comment that is justified or required in one case may be neither required nor justified when a similar case is conducted in a different way (Domican v R [1992] HCA 13; (1992); 173 CLR 555 at 560-561).
48. Fullerton and Schmidt JJ said at [101] and [102]:
In R v Meher [2004] NSWCCA 355 Wood CJ at CL referred with approval to the judgment of Isaacs J in R v Tomazos (Court of Criminal Appeal, 6 August 1979, unreported) where his Honour said:
... A trial according to law includes as an essential prerequisite that the trial judge has put fairly, cogently and with clarity to the jury the accused’s defence. The weaker the defence the more essential it is for his defence such as it is to be put to the jury so that they can consider it in the light of the Crown case and evaluate it as part of their assessment together with the Crown evidence to see whether the Crown has discharged its onus of proof.
It can properly be said that the accused fairly lost a chance of acquittal because his case was never put to the jury by the trial judge. It is completely insufficient for a trial judge simply to say to the jury in effect, “Well, you have heard all that has been said on behalf of the accused by his counsel; it is unnecessary for me to say anything more”. The trial judge must lend the weight of his judicial position and authority to putting before the jury himself the case for the accused.
We are of the opinion that even if it might fairly be said that the applicant’s case was not compelling, he was entitled to have the trial judge refer the jury to how his defence was advanced in the context of the evidence upon which he relied (particularly since the Crown case and the evidence on which the Crown relied was addressed in the summing up), and that a miscarriage of justice has been occasioned by his failure to do so.
49. Counsel for the appellant also referred to R v Meher [2004] NSWCCA 355 (Meher), pointing to what the NSW Court of Criminal Appeal said at [76] and [77]:
It is trite law that the fundamental task of a trial judge is to ensure a fair trial. That will involve not only instructing the jury about the law. It extends to identifying the issues, relating the law to those issues, and assisting the jury to understand how it is that the accused may be guilty of the offence charged in the indictment, or of any alternative offence open upon that indictment. It also requires the judge to explain why it is that the accused asserts that his guilt has not been established beyond reasonable doubt and to give any directions which, in accordance with the Evidence Act or established case law, call for a particular explanation or caution. So far as the accused is concerned, it is the case which the defence makes that the jury must be given to understand, including any matter that is properly open upon which they might find for the accused: Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107.
There is no obligation to go beyond those matters that are of direct relevance for the trial, nor is there a need for a judge to painstakingly read all of the evidence to the jury, or even to analyse all of the conflicts in it: Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555 at 560-561. What is required is a fair and balanced summary of the law, the issues, and the respective cases for the prosecution and the defence.
50. The High Court’s remarks in Domican v The Queen (1992) 173 CLR 555 at 560-561 also bear repeating in this case:
In a criminal trial, the distinction between directions on matters of law and directions on matters of fact or argument is fundamental. A trial judge is bound to direct the jury as to any principle of law or rule of practice applicable to the case, and a misdirection or non-direction on such a matter will usually mean that the trial has miscarried. But matters of fact and the arguments in relation to them are in a different category. A trial judge is not bound to discuss all the evidence or to analyse all the conflicts in the evidence and, by itself, the failure of a trial judge to do so does not mean that there has been any miscarriage of justice. Section 405AA of the Crimes Act 1900 (N.S.W.), which came into force after the trial of the appellant, provides that a judge of the Supreme or District Court need not summarise “the evidence given in the trial” if he or she is of the opinion that in all the circumstances a summary is not necessary. Nevertheless, the requirement of fairness means that ordinarily the respective cases for the prosecution and the accused must be accurately and fairly put to the jury. But that requirement does not oblige the judge to put to the jury every argument put forward by counsel for the accused. This Court has said that it “is hardly necessary to say that as a reason for granting a new trial, after a conviction in a criminal case, it is not enough that the presiding judge has not mentioned to the jury all the matters which were set up on behalf of the accused as affecting probabilities”. Whether the trial judge is bound to refer to an evidentiary matter or argument ultimately depends upon whether a reference to that matter or argument is necessary to ensure that the jurors have sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence. Consequently, the conduct of the case necessarily bears on the extent to which the judge is bound to comment on or discuss the evidence. Discussion or comment which is justified or required in one case may be neither required nor justified when a similar case is conducted in a different way. [citations omitted]
51. In RPS v The Queen (2000) 199 CLR 620, the High Court (Gaudron ACJ, Gummow, Kirby and Hayne JJ) said at [41] and [42]:
Before parting with the case, it is as well to say something more general about the difficult task trial judges have in giving juries proper instructions. The fundamental task of a trial judge is, of course, to ensure a fair trial of the accused. That will require the judge to instruct the jury about so much of the law as they need to know in order to dispose of the issues in the case. No doubt that will require instructions about the elements of the offence, the burden and standard of proof and the respective functions of judge and jury. Subject to any applicable statutory provisions it will require the judge to identify the issues in the case and to relate the law to those issues. It will require the judge to put fairly before the jury the case which the accused makes. In some cases it will require the judge to warn the jury about how they should not reason or about particular care that must be shown before accepting certain kinds of evidence. [citations omitted]
Defence case put by counsel
52. The closing submissions made by the appellant’s counsel at trial were as follows:
MR LAWTON: Ladies and gentlemen, this isn’t a jigsaw puzzle that really fits together at all, in my submission. I want to really start off by focussing where my friend, in her closing address, ended.
The issue of this DNA and the issue of the blunt force trauma creating these abrasions. I’m not sure that there’s been any evidence before you of any blunt force trauma to the particular area where those abrasions are. There’s evidence of – if you accept [the complainant], and I’ll come to her in a moment – there’s evidence about her being forcibly penetrated in the anus and fingered in the vagina, but that appears to have been after cunnilingus was performed on her.
Now, just for a moment leave ... aside the problems with the account given by [the complainant]. I’ll take you to those in a while but let’s look at the objective DNA evidence and what is there of Mr O’Rafferty? What DNA is there of Mr O’Rafferty on [the complainant]. There’s none, none at all. Despite being accused of licking her vagina and licking her clitoris and despite the evidence of Ms Keglovic to you that saliva generally provides a good source of DNA, there is no evidence of his DNA on her vagina. Despite the evidence of Ms Keglovic that forceful friction between fingers and the anus is likely to cause the transfer of DNA between the person inserting their fingers and the person who’s having them inserted into her, what evidence or what DNA of Mr O’Rafferty is on her? None.
Now, the prosecutor suggests to you that this can be explained away by the wearing of clothes after the incident. But remember that saliva, allegedly or as explained by Ms Keglovic, is a good source of DNA. Is all the DNA to be wiped off? Can you be satisfied of that in that time period? And in particular can you be satisfied of that when the evidence of [the complainant] is this, when she got up in the morning she had no pants on. She didn’t put on the Speedo type jock underpants when she got up. She put on boxer shorts. Now, ladies and gentlemen, you bring your common sense to you when you come to a trial. Boxer shorts have less contact with the genitals than would a set of jockey type underpants or Speedo type underpants. So, where’s the opportunity for this DNA to be rubbed off and rubbed off to the extent there’s no DNA of Mr O’Rafferty or, indeed, I interpose of Mr Dodd?
The other issue that causes some trouble with [the complainant]’s account, in my submission, is when did this in fact occur? The prosecutor has quite properly conceded that you should probably accept the evidence of Constable Bamford as to the conversation she had with [CR] as to when she was collected, when this argument took place and when she left the premises. It appeared it occurred later in the morning. So, when she’s gone is when this is supposed to have occurred. Now, the problem with that, in my submission, ladies and gentlemen, is that makes the time period for this DNA to be rubbed away even less than what the Crown would hope you have. They would hope that could say that it was as much as 10 hours between her being examined by Dr Sansum and when the assault occurred. Can you be satisfied of that? In my submission you can’t.
The Crown prosecutor has focused quite a bit on [the complainant]. You have to assess her credibility. If she believes that she was sexually assaulted then of course she’s going to be credible. But what’s the issue here? When did it occur? How did it occur? And who did it to her if it happened? The problems, I’d suggest to you, ladies and gentlemen, is that her initial complaints are very vague. All she says to her friends is that I was raped by three men. Now, [JP] gave evidence the other morning clearly distressed and that’s clearly understandable, ladies and gentlemen. If a friend of yours came to you and said I’d been sexually assaulted of course you would be distressed. Of course you would be distressed at having to recall those events. But, ladies and gentlemen, that doesn’t mean that because your friend told you it happened and it upset you that it happened.
The learned prosecutor would ask you say because she’s told people that it’s happened you can use that as evidence that it did happen. Now, that’s a rather circular argument isn’t it? If you tell people something happened to you, the fact that you’ve told them doesn’t mean that it happened. It may mean that you believed it happened but it doesn’t mean it actually had to have happened. And this is where we, I’d suggest, the problems are for, ladies and gentlemen, because if you put to one side what [the complainant] believes happened and then look to the objective evidence, in particular this DNA, and the complete absence of this DNA on her that’s where, in my submission, you’re going to have a reasonable doubt.
So, the complaints she makes to her friends and even the complaints as you’ll recall on the 000 call to police are not specific at all. She simply says generally, “I was raped.” It’s not until she’s first examined by Dr Sansum at about 11.30 am on the morning of the 18th, that we start to get some details. Now, this is where, ladies and gentlemen, you’re really going to have to scrutinise her evidence closely because the account that she gives to Dr Sansum is ultimately different to the account that she gives to the police some 4 or 5 hours later.
Now, let’s just digress for a moment in terms of assessing the credibility of witnesses. As the Crown prosecutor said to you in respect of [CR], well perhaps there’s some parts you can accept, perhaps there’s other parts you can’t accept. And don’t forget that [CR] told everyone that she was very intoxicated. Now, what the prosecutor didn’t remind you of, of course, was that [the complainant] was also very intoxicated throughout this incident. You’ve heard the account that she gave of how much she’d had to consume, how much alcohol she’d consumed. Just because the prosecutor glossed over that issue it doesn’t mean it doesn’t go away. It’s an issue that you have to consider when you’re assessing the credibility of [the complainant].
So, look carefully at what she said to Dr Sansum. She talked about:
“Her vagina, anus and mouth had been penetrated by Jason’s penis and fingers. Her vagina and anus had possibly been penetrated by Kevin. She thought that this had happened but was unsure regarding the exact nature of the penetration. There had been oral contact from Jason to her vagina, anus, mouth and breasts. There had been oral contact from Kevin to her vagina.”
Now, when you look at those notes, there’s a little bit of information which obviously my friend Mr Sabharwal will draw your attention to, but it’s significant, in my submission, as well in terms of the DNA evidence that the Crown places so much reliance upon, that single bit of DNA that’s found inside the boxer shorts of Mr Dodd.
When you look at page 4 of 20 of those notes you’ll note that there’s some brief notes of the description and what does [the complainant] say where Jason is when she left? Jason is asleep on the lounge. Now, that’s the lounge that she was on before. So, that’s the lounge that she was lying on and there’s no dispute that she’d passed out on earlier in the evening. Now, remember what the evidence of Ms Keglovic was in terms of the shedding of skin of the transfer of DNA. Remember that immediately before him sleeping on that couch she was sleeping on that couch.
Then turn to the record of interview or the record of conversation which was played to you on the video between Constable Thompson and[the complainant], her account of what she said was happening. Her account that she says her anus was forcefully opened with these two fingers of Mr O’Rafferty and yet there’s no DNA of her under his fingernails. There’s no DNA of him on the swabs of her anus. There’s no DNA of him anywhere, ladies and gentlemen.
Also look at the fact that she describes that the room was dim when all this was going on yet she’s able to describe clothing in detail although you’ll note that I put to her in cross-examination about the description of the clothing that she gave of Mr O’Rafferty. The problem is, ladies and gentlemen, that her complaint is that. It’s a complaint and only as it goes on do we start to get any sort of detail of what she says happened and when we do get that detail, first to Dr Sansum and then to the police, there are differences between them. So, you need to consider that when you assess whether or not you can be satisfied beyond reasonable doubt of what happened.
Finally, ladies and gentlemen, I want to touch on something that, again, [the complainant] said to the police. When she participated in the photo board identification of Mr O’Rafferty – look, there’s no doubt that Mr O’Rafferty was there during the course of the evening – but she’s asked at question 23, “Is this the man that you say in your statement sexually assaulted you?” And her answer is, “I’m pretty sure.” Now, ladies and gentlemen, you have to be satisfied beyond reasonable doubt. There’s no magic to that term and his Honour will give you directions about it but “pretty sure” is not beyond reasonable doubt. “Pretty sure” is not beyond reasonable doubt when there’s no DNA evidence where there should be DNA evidence. And if anything, there’s DNA evidence on one of her breasts of another man entirely.
Now, ladies and gentlemen, you have to be satisfied beyond reasonable doubt that Mr O’Rafferty and Mr Dodd did these things. It’s not being “pretty sure” that they did these things. His Honour will give you some directions about the burden of proof. That burden never shifted to Mr O’Rafferty and Mr Dodd. It didn’t shift to Mr Dodd because he gave evidence. It didn’t shift to Mr O’Rafferty because he exercised his right to silence. You have to be satisfied beyond reasonable doubt on the prosecution evidence that these four offences occurred. If you can’t then it’s your duty to acquit and it’s as simple as this, ladies and gentlemen, it can’t be, in my submission. Something might have happened. [The complainant] might be pretty sure that something happened but that doesn’t mean you can be satisfied beyond reasonable doubt. [emphasis added]
53. It is apparent from the foregoing that the elements of the defence case were:
(a)the absence of DNA evidence against the appellant;
(b)the credibility of the complainant in her allegations of rape, especially by reference to the vagueness of her complaints, the inconsistencies between what she told Dr Sansum and what she told the police several hours later, and her admitted intoxication;
(c)the scope for the complainant’s DNA to have got into Mr Dodd’s underpants by secondary transfer; and
(d)the complainant’s identification of the photograph of the appellant with the words “I’m pretty sure”.
Defence case put by trial judge
54. Mr Dodd’s case was that nothing of a sexual nature involving him or anyone else took place with the complainant in his flat on the night concerned. This was put explicitly to the jury by his Honour as follows:
Mr Dodd has said to the police, and I use his words, “that the complaints are bullshit, that they’re crap.” He has denied doing anything to the complainant. Specifically he denied sexually abusing her. He denied licking and kissing her breasts. He denied penetrating her genitalia with his penis. As has been pointed out to you, the DNA of neither accused was found on the body of the complainant. Indeed, another male’s DNA was found on one of her breasts. You have the evidence of Ms Keglovich as to DNA.
...
If it should be, as Mr Sabharwal said, if it should be that you accept the evidence of Mr Dodd that he did nothing, then that’s the end of it, insofar as he and the other accused is concerned. If you accept his evidence that he did nothing that’s the end of the Crown’s case. You find him not guilty, and because you find him not guilty, because nothing happened, you find Mr O’Rafferty equally not guilty, because nothing happened. You’ve got to assess his evidence in the same way as you assess the evidence of the other witnesses.
55. In relation to the case put on behalf of Mr O’Rafferty, his Honour said to the jury:
There’s a suggestion that Mr O’Rafferty was not there after – well, at least at the time that [CR] left. She said the people in the unit at that time were the complainant asleep on the lounge fully clothed and Mr Dodd awake and standing after their argument. If you’re not satisfied beyond reasonable doubt that Mr O’Rafferty came back to the flat and that he did the things that the complainant complains that he did, then you’ll find him to be not guilty of the offences because you won’t be satisfied beyond reasonable doubt that he was there.
56. The case put on behalf of Mr O’Rafferty was not adequately put to the jury by the trial judge. Indeed we think the problem is compounded by the fact that the trial judge suggested that, save in one respect, the complainant’s accounts were consistent. In the course of his charge his Honour said:
Members of the jury, you know what happened. The complainant left Mr Dodd’s flat and walked to Narrabundah College. She arrived at Narrabundah College and spoke to [GF] first then to [JP] and then to [CR]. You have the evidence that [JP] said that she was – they all said that she was distressed, her clothing and hair were dishevelled. [CR] said that her pants were broken. You have the jeans. They’re exhibit J. The police confirmed that the button from the top is missing and the zipper is broken so that it can’t be activated.
[CR] said that she saw that – the complainant pointed out that the jeans were broken. [JP] referred to the fact that she was wearing white Volley-style shoes. [GF] said that she was not wearing any shoes. And, as I’ve said, look at the photographs and decide for yourselves whether when she got on the bus what colour are the shoes she was wearing.
You know what happened after she arrived at the school; the telephone call was made. Carmel came, took her back to the refuge. She saw Ms Kirkwood, she saw Ms Diep. Telephone calls were made to ACT Policing. She was taken to the hospital. She was examined at the hospital, and you have the notes and report of the examination. She was spoken to by police, and you have the recording of the police interview. None of those things are in dispute. None of those are in dispute. What’s in dispute is what, if anything, happened in Mr Dodd’s flat when the complainant was there and otherwise alone.
Did Mr Dodd in the presence of Mr O’Rafferty sexually abuse her? Did Mr O’Rafferty in the presence of Mr Dodd sexually abuse her? Was Terrence there? That is why the Crown’s case rests upon the complainant. It’s for you to assess the complainant’s evidence carefully, as I have said to you. You do that in isolation with the other evidence carefully, as I have said to you. You do that not in isolation with the other evidence; you take into account the other evidence. You take into account the complaint that she made to [GF] and then [JP], and then to [CR].
You take into consideration the complaint to Ms Kirkwood and Ms Diep. You take into account the way that she appeared to those people, her state of distress, or being distraught. You take into account that she locked herself in the bathroom. Then she locked herself in the bedroom when she was crying. You take into account what she told the doctor when she was examined. You take into account what she told the police when she was interviewed. All of those things you take into consideration.
All of those things are not really in dispute. Indeed, the only inconsistency appears to relate to whether she was wearing white Volley-style shoes or no shoes at all. There does not seem to be any dispute that she’d lost the button off her jeans, that the zipper was broken so that it could not be used as a zipper, she appeared dishevelled, she appeared distressed, she was crying, she made a complaint of being raped. You take into account when assessing her evidence all of the other evidence. You look into the evidence generally to see if there’s something which supports or undermines what she has said. [emphasis added]
57. There is one further aspect of his Honour’s remarks which illustrated the unbalanced nature of the charge. His Honour’s closing remark to the jury was as follows:
Mr O’Rafferty was charged with two counts of sexual intercourse in company, cunnilingus and penetration. You consider each of them separately. If you find that he did those things in the company of Mr Dodd, you find him guilty of both. If you find that he did one of those things in the company of Mr Dodd, you find him guilty of that one. If you find that he was not there, you find him not guilty of both and you don’t have to consider anything else. If he wasn’t there, then Mr Dodd couldn’t have been in company. If he was there, Mr Dodd could have been in company. They’re questions for you to decide.
58. Significantly his Honour did not put the other alternative to the jury – that Mr O’Rafferty was present but did not sexually assault the complainant – though he mentioned this earlier.
Conclusions
59. We conclude that appeal ground (a), that the trial judge failed to properly put the defence case, has been established. We further conclude that this failure has deprived Mr O’Rafferty of a real chance of acquittal, and that there has accordingly been a miscarriage of justice. We are not convinced for the purposes of s 37O(3) of the Supreme Court Act that the miscarriage of justice has not been substantial.
60. Accordingly, the appeal must be allowed. We shall set aside the appellant’s conviction, and order a new trial.
| I certify that the preceding sixty [60] numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: Date: |
6