Okwechime v The Queen
[2023] ACTCA 25
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Okwechime v The Queen |
Citation: | [2023] ACTCA 25 |
Hearing Date: | 1 March 2023 |
DecisionDate: | 9 June 2023 |
Before: | McCallum CJ, Mossop and Charlesworth JJ |
Decision: | 1. The application in proceeding filed 25 January 2023 is dismissed. 2. The appeal is dismissed. |
Catchwords: | APPEAL – CRIMINAL LAW – Appeal against conviction – whether verdict of guilty was unreasonable or cannot be supported having regard to evidence – various matters said to support plausibility of appellant’s account – where matters raised by appellant together fail to make the verdict unreasonable – appeal ground dismissed APPEAL – CRIMINAL LAW – Leave sought pursuant to r 5531 – miscarriage of justice – whether absence of direction regarding appellant’s criminal status caused a miscarriage of justice – where appellant’s counsel at trial raised the appellant’s criminal status with the complainant in cross-examination – where appellant bound by the conduct of his counsel – leave to raise appeal ground refused APPEAL – CRIMINAL LAW – Appeal against sentence – whether sentencing judge erred in assessment of duration of choking offence – alleged that sentencing judge erred in finding that choking lasted for 15 seconds where such fact not established beyond reasonable doubt – where appellant’s counsel’s submissions at sentence accepted that choking lasted for 15 seconds – appeal ground dismissed APPEAL – CRIMINAL LAW – Appeal against sentence – whether sentencing judge erred by imposing a sentence unjustly disproportionate to the objective gravity of the offence – no specific error identified – no allegation of manifest excessiveness – appeal ground dismissed |
Legislation Cited: | Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 74, 80C, 111 Court Procedures Rules2006 (ACT), r 5531 Supreme Court Act 1933 (ACT), pt 8 |
Cases Cited: | Baumer v The Queen (1988) 166 CLR 51 Browne v Dunn (1893) 6 R 67 Veen v The Queen(No 2) (1988) 164 CLR 465 |
Parties: | Chidi Chike Okwechime ( Appellant) The Queen ( Respondent) |
Representation: | Counsel B Walker SC with P English ( Appellant) K McCann with B Morrisroe ( Respondent) |
| Solicitors Hugo Law Group ( Appellant) Director of Public Prosecutions (Respondent) | |
File Number: | ACTCA 35 of 2022 |
Decision under appeal: | Court/Tribunal: Supreme Court of the ACT Before: Norrish AJ Date of Decision: 30 August 2022 Case Title: R v Okwechime Citation: [2022] ACTSC 233 |
THE COURT:
Introduction
The appellant, Chidi Chike Okwechime, was tried before a jury on an indictment containing five counts. Each offence was alleged to have occurred on 16 May 2021. The charges and verdicts returned by the jury were as follows:
(a)Count 1: that the appellant engaged in sexual intercourse with the complainant without her consent and was reckless as to whether she had consented (digital‑vaginal penetration): verdict – not guilty.
(b)Count 2: that the appellant engaged in sexual intercourse with the complainant without her consent and was reckless as to whether she had consented (cunnilingus): verdict – guilty.
(c)Count 3: that the appellant engaged in sexual intercourse with the complainant without her consent and was reckless as to whether she had consented (digital‑anal penetration): verdict – not guilty.
(d)Count 4: that the appellant engaged in sexual intercourse with the complainant without consent and was reckless as to whether she had consented (penile‑vaginal penetration): verdict – guilty.
(e)Count 5: that the appellant intentionally and unlawfully choked, suffocated or strangled the complainant: verdict – guilty.
The primary judge found the appellant not guilty of a related charge of common assault which had been transferred from the Magistrates Court pursuant to Pt 8 of the Supreme Court Act 1933 (ACT): R v Okwechime [2022] ACTSC 233 at [8]‑[24].
The appellant was subsequently sentenced to imprisonment as follows:
(a)Count 2: two years and six months.
(b)Count 4: four years.
(c)Count 5: one year and three months.
The aggregate sentence was five years and three months’ imprisonment.
The appellant has appealed against his conviction on counts 2, 4 and 5. He has also appealed against the sentences imposed on counts 4 and 5.
Non-publication orders under s 111 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) were made by the primary judge protecting the identity of one witness and another person referred to in the evidence. No application was made to vary or discharge those orders and as a consequence the names of those persons are anonymised in these reasons. A statutory prohibition on the publication of the identity of the complainant also applies: Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 74.
Grounds of appeal
In the Further Amended Notice of Appeal the grounds of appeal are:
a.The verdicts of the jury on Counts 2, 4 and 5 should be set aside on the ground that they are unreasonable, or cannot be supported, having regard to the evidence.
b.A miscarriage of justice arose on account of the failure of the Presiding Judge, where objection had been previously raised, and prior admonition given to the complainant to prevent the receipt of evidence of the appellant’s alleged status as a criminal, to not provide a direction when such material was received by way of complaint evidence from the witness, [NE].
c.The Sentencing Judge erred in his assessment of the duration of the Count 5 offence.
d.The Sentencing Judge erred by imposing a sentence in relation to Count 4 that was unjustly disproportionate to the objective gravity of the offence.
Factual overview
The factual overview of the case is largely derived from the summary of the evidence given in the appellant’s written submissions.
The complainant
At about 8:30pm on Saturday 15 May 2022, the complainant attended her cousin’s 21st birthday party in Conder. She was drinking vodka cruisers and jelly shots. She consumed one line of MDMA. The party finished and the complainant arranged to meet a friend at the Assembly nightclub in Braddon. Having met the friend, at about 12:30am she walked to another nightclub, Kokomo’s, with him. She ran into a schoolfriend. She felt “pretty drunk” at that point. Around this time her friend told her that he wanted to leave and was getting an Uber. She responded “I don’t want to go yet. I’ll go soon … I’ve got [schoolfriend] here.” Her schoolfriend introduced her to a group of six or seven men that were sitting at a table within the nightclub. This group included the appellant. It also included Zachary Robb, who had tattoos over his neck, hands and under his right eye. The complainant described the males as a type that she had never previously spoken to in her life. The appellant had tattoos on his hands and neck. The complainant spoke with the group and at some stage said that she told them that she had nearly finished her journalism degree. Some of the males told the complainant that they hated journalists and women. The appellant told the complainant to ignore the males and that they were just joking. As a result of this interaction the complainant thought that the appellant was “nice and pleasant and fine”.
The complainant asked the appellant several times if he could arrange for her to have some cocaine. The appellant did this and the complainant went with the appellant and a few other men into the disabled toilet of the nightclub and snorted one or two lines of cocaine. The appellant did not consume any cocaine or illicit drugs during the night. The complainant was intoxicated by this stage.
Whilst in the disabled toilet cubicle, the complainant said that she accidentally dropped her phone in the toilet. This led to it not working. However, other witnesses said that the complainant deliberately threw her phone in the toilet. Nawar Ayoub, one of the men in the group, gave evidence that the complainant did this after the males in the toilet had called her a “snitch” because she said that she worked as a journalist. A video taken by Mr Robb as a form of insurance given the complainant’s claims that she was a journalist shows cocaine being used in the cubicle, including by the complainant.
The group was in the bathroom for 14 minutes. The complainant and the appellant were the last to leave, staying alone for two minutes and 56 seconds. The appellant gave evidence that the complainant propositioned him for sex in the bathroom at this time. The complainant denied that.
The complainant accepted that she flirted with the appellant at the nightclub.
A short time later the group left Kokomo’s and went to the Fiction nightclub. The complainant gave evidence that the group was initially not permitted to enter because of some of their tattoos and ended up having to bribe the bouncer. Mr Robb gave evidence that he knew the bouncers at this nightclub and that he asked the group to wait a while so that they could enter without paying the cover charge. The group was allowed in and went downstairs and sat at tables near the toilets. The complainant described herself as feeling “really drunk”.
At one point Mr Robb was in the male bathroom with another man. The complainant followed Mr Robb in to ask for more cocaine. The complainant said that she conversed with the other man in the main area of the nightclub and that he bought her a drink, although this was not shown on the CCTV.
At some point the complainant said that she would go home. However, her phone was not turning on. She went to the bar and asked the bartender if she could charge it. The complainant was told that she could only charge her phone in an emergency. The complainant used her phone as a wallet and the only phone number she could remember was her ex-fiancé’s, whom she did not want to contact.
The appellant asked the complainant if she wanted to come back to Mr Robb’s house as there was apparently a party there. The complainant said she wanted to go home. She asked the appellant “Do you have a phone charger?” and he said “Yeah we’ve got a phone charger.” She then agreed to return to Mr Robb’s house.
Sometime after 4am the appellant, complainant and Mr Robb left the Fiction nightclub and walked to a car that was driven by Veronica Anthony.
The complainant said that she fell asleep during the car ride to Mr Robb’s house. She said that one of the men kept putting a vape in her mouth.
Once they arrived at Mr Robb’s apartment, the complainant saw nobody else there and realised no music was playing. She was “very intoxicated” at this stage. Her evidence was that she said “I thought we were going to a party. Can I charge my phone and go home?” The complainant said that the appellant told her “We can get alcohol. We can go back to my house if you want.” The complainant said she replied “No, I’m going to go home. Can I put my phone on charge?” The complainant then said she put her phone on the charger and realised it would not turn on. She denied in cross-examination that when she arrived at Mr Robb’s residence she asked the appellant if there were any drugs or alcohol available.
In cross-examination the complainant agreed that the appellant gave her his phone and she entered her address into the phone but did not ultimately order an Uber. She agreed that this must have occurred while she was on the couch with the appellant. The complainant denied that at this point she jumped onto his lap and began kissing him on the couch.
At the apartment, Mr Robb and Ms Anthony went into a bedroom. The complainant gave evidence that she went and knocked on the bedroom door and said “I thought we were at a party” to which Mr Robb said “get the hell out of the room.”
The complainant returned to the couch and said “I want to go home. I’m really hungry. Do you have any two-minute noodles? I want to eat something. I really want to go home.”
While on the couch the complainant said that the appellant started kissing her on the face. She pulled away and repeatedly said “Stop, I don’t want this.” The complainant claimed that the appellant then pulled her underwear down a few centimetres and began to digitally penetrate her. It was this allegation that formed the basis of count 1 on which there was a verdict of not guilty.
The complainant gave evidence that the appellant said “I want to eat you out” before performing cunnilingus on her. This allegation formed the basis of count 2 on which there was a verdict of guilty. The complainant gave evidence that she said many times: “Get off me. I don’t want to do this. Stop. Get off me. I don’t want to do this. Please.” She said she wanted to go home. Her evidence was that the appellant performed oral sex very violently on her: “He was like gnawing, like gnawing at me.” The complainant said that she was on the last two days of her period and would not even have consented to her long-term partner doing something like that to her.
The complainant said that the appellant then carried or “kind of dragged” her into another room in the apartment that had dark grey carpet (the spare room). There was a clothes horse with tracksuit pants, socks, underpants and a fluorescent work shirt on it. She said “The next part gets really blurry because I don’t remember walking there but I’m pretty sure he carried me into the bedroom” and “I’m pretty sure he kind of dragged me in there. Not dragged like a caveman but I was wobbling around.” She said that the appellant “ripped off all my clothes and kept kissing me.” She said that she was “really, really crying.” She said “Stop. I want to go home.”
She gave evidence that the appellant then digitally penetrated her anus using two or three fingers. She could feel his fingernails scratching her while he was doing this. She described it as extremely painful and violent. This allegation formed the basis of count 3 upon which there was a verdict of not guilty. She said that he bit and sucked at her neck while doing this and described it as “very animalistic.” At this point the appellant said “Get me hard. Get me hard.” She said that she continued to ask the appellant to stop and tried to get away from him. She said “Get the fuck off me.” The complainant said that the appellant pushed down on her whole body not allowing her to get up. This formed the basis for the transferred charge of common assault upon which the primary judge found the appellant not guilty.
The appellant then penetrated the complainant’s vagina with his penis. The complainant said that this act of sexual intercourse involved about 40 thrusts and continued for 15 to 20 minutes. This allegation formed the basis of count 4 upon which there was a verdict of guilty. During the incident the complainant was thinking “I’m being raped. I’m being raped.” She said she was crying and telling the appellant to stop, saying she just wanted to go home and just wanted her dad.
When the complainant was crying the appellant placed both his hands around her neck and applied pressure. When her tears became “hysterical” the appellant said words to the effect of “Stop saying that, I hate you telling me to stop.” The allegation of placing of pressure on her neck forms the basis for count 5 on which there was a verdict of guilty. Her evidence was that this continued for “about 15 seconds … could’ve been longer, could’ve been less.” The complainant said “I can’t breathe.” Her vision went blurry and she felt like she blacked out. She felt nauseous and sick. The appellant let go of her and she crawled towards her clothing. The appellant then grabbed her leg and dragged her back towards him.
She said she was “bawling my eyes out”. She stood up and collected clothing and put on her skirt and shirt. She tied her jacket around her waist. She carried her underwear. She disagreed with the proposition, put to her in cross-examination, that she buttoned up her shirt, tucked it in and tied her jacket around her waist.
The complainant and the appellant then got into the lift together and the appellant ordered the complainant an Uber, to get her home. When asked whether she wanted an Uber, the complainant said “Get the fuck away from me” and then ran to a row of townhouses to find a door that was open to ask for help.
Her attendance at the Canberra Hospital and examination there was described by other witnesses. She was cross-examined about a post on Instagram that indicated she sustained a black eye from the incident. She agreed that she could not be sure whether that occurred from the incident or having fallen a number of times at hospital. She said that she recalled being hit in the face during the incident and had not fallen on her face in the hospital. She said that on each occasion that she fell or fainted in hospital her mother was by her side. Her mother gave evidence that she was only present with the complainant when she fell in hospital following her second admission in relation to bowel issues.
In cross-examination it was suggested to her that she had made a false complaint of rape against the accused:
And that for whatever reason you decided to make a false complaint of rape against Mr – sorry, Chidi Okwechime?---No, that is completely incorrect. I have no shame in sleeping with somebody. I would not put myself through this much damage, pain and my family for nothing. This is not ideal. This is horrendous.
The complainant was questioned about her decision to contact a producer from 60 Minutes approximately a week before the commencement of the trial. She said:
Actually, I want to try and change certain things in the legal system that protected – that aren’t helpful for victims – yes. And I actually want to advocate for women and sexual violence because this is the only thing that’s keeping me from committing suicide – everyday – because I don’t feel like my life is worth living since this event.
The complainant agreed that she said to a producer at 60 Minutes “I planted the seed with [the Crown Prosecutor] and [the solicitor for the Crown], that I am trying to pivot off this so that I can handle it.” She explained that this was to “change this system. I’m not happy with how this happened to me and my life. I want to shine light on injustices in the legal system … pivoting means I need to find a reason to live after this. I don’t want to live if I don’t have a reason that this happened.”
She agreed that she had told the producer that:
I am wanting and willing to tell my story, minus the fact that there was drug usage. I only want to talk about being incoherent from drinking et cetera and not the intimate parts of the act, but can on some, like begging for my life.
She accepted that she did not want the fact that she had used drugs to be reported: “Well, I would like to get a job in the future, so no, I didn’t want it to reflect that I’d done drugs.”
The appellant
The appellant gave evidence at the hearing. He said that he met the complainant at Kokomo’s nightclub. She came up to him, introduced herself as a journalist and was flirting, talking and asking for cocaine. He told her that he could get her some cocaine from a friend to help her out. When in the bathroom everyone except the appellant had more than one line of cocaine. The appellant said that while in the toilet the complainant told him she “wanted to fuck” and the appellant thinks he said “Maybe later”. He said at this point the complainant was rubbing the appellant’s chest and legs.
When the group went to the Fiction nightclub they had to wait outside as the bouncer, being Mr Robb’s friend, was trying to arrange for them not to pay any cover charge. Once inside, the appellant went to the toilet to urinate. He only subsequently found out that the complainant had followed him into the male toilets as a result of watching the CCTV footage.
He said that outside of the bathrooms the complainant was flirting with him, talking about sex, saying that she was a model, a journalist, that she wanted to fly him around the world as his sugar mum and that she wanted more cocaine. This gave the appellant the impression that the night was heading towards a sexual encounter. He said that when the complainant did not receive any more cocaine at Fiction she became angry and upset and made demands of the appellant to get her some more. He said she eventually calmed down and he asked her if she wanted to come back to Mr Robb’s home. He did this with sex in mind. She said yes and that she was happy to come back with them. During the car trip the complainant sat in the back middle seat next the appellant and was wide awake.
At Mr Robb’s apartment the complainant asked if there was any cocaine or alcohol. The appellant replied that there was not and then she got angry and said she wanted to go home. The appellant gave the complainant his phone so that she could order an Uber. However, having entered details into the Uber app the complainant cancelled the order. He said she then jumped straight on the appellant’s lap on the couch and started kissing him. About a minute later she stood up and took off her underwear. The appellant then proceeded to digitally penetrate her with two fingers and performed oral sex on her. She did not protest about this. He said it was “Positive, happy, just normal.” On his account, they stayed like this for around five minutes and then the appellant asked the complainant if she wanted to go into the spare room. She said “Yes” and they both walked into that room.
Once inside the spare room the complainant took her skirt off and the appellant helped her unbutton her top and bra. The appellant’s evidence-in-chief continued:
Can you remember what – if she took her shoes off?---No. Shoes were left on.
Shoes were left on?---Yes.
What happened then?---She got on the floor, proceeded again oral/digital sex.
Hang on. When she got on the floor was she sitting up, lying back on her front, side?---Lying back.
On her back?---On her back.
Naked except for her shoes?---Yes.
The appellant gave the complainant a “hickey”. The complainant had not said “No” or “Stop”. After a couple of minutes the appellant said “Do you want to fuck?” to which the complainant replied “Yes.” He got on the floor and proceeded to have intercourse with her. However, after a maximum of two thrusts she jumped up and said “You just raped me.”
The appellant had not been wearing a condom and took no precautions in relation to birth control. He denied holding down the complainant’s arms, choking her or grabbing her by the leg.
He said that he was confused by the complainant’s allegation of rape. He stopped having sex with the complainant, got up and said “If you want to go, I will order you an Uber.” The complainant kept repeating that he had just raped her to which the appellant replied “What are you talking about?” They both then stood up, got changed and the appellant walked the complainant out of the building to make sure she was safe and ordered her an Uber using the address that she had previously entered into the phone. As she walked out of the apartment the appellant took a short video of the complainant. She was dressed with her jacket around her waist at this time.
Once downstairs the complainant ran away from the appellant, screaming and telling him not to follow her. The appellant then went back to Mr Robb’s apartment to tell them what just happened. During this time, the Uber driver called the appellant to enquire where their passenger was.
Following this, the appellant went back into Mr Robb’s apartment and banged on Mr Robb’s bedroom door. He told Mr Robb that “This girl just accused me of raping her”. His evidence was that Mr Robb thought he was joking and was shocked. He felt stressed. He spoke to Mr Robb about the incident for about “Five, ten minutes”, before taking an Uber home. He said Ms Anthony heard the conversation between him and Mr Robb and “She was shocked too. She didn’t believe it either.”
Zachary Robb
The prosecution called Mr Robb. He had known the appellant for seven years prior to the incident. Mr Robb was in a relationship with Ms Anthony.
He was out with the appellant on 15 May 2021 and supplied the cocaine to the complainant in the bathroom at Kokomo’s nightclub.
At the Fiction nightclub, Mr Robb was urinating in the male toilets and asked the appellant to hold the door of the disabled cubicle closed so that he and a friend could take some cocaine there. After urinating Mr Robb noticed the complainant in the male toilets. He told his friend that the complainant was a journalist which prompted his friend to leave the toilets. Mr Robb then had a line of cocaine in the disabled toilet cubicle. The complainant kept asking Mr Robb for a line of cocaine. He refused and the complainant became angry.
He described the appellant and complainant as being very flirty, “Like she was sort of all over him.” He said that towards the end of the night the complainant asked him if there was any cocaine at his house to which she replied “No” and “It’s not a party house.” However, the complainant still agreed to come back with the appellant to the apartment.
Ms Anthony picked up the group in her car and drove them back to the apartment. Mr Robb saw the complainant cuddling up with the appellant in the back seat of the car.
At the house the complainant came into the bedroom and asked for a blanket “for [the appellant] and her”. Mr Robb said that he and Ms Anthony stayed in his bedroom with the door about half open. At one stage he looked back through the door and saw the complainant and appellant cuddling on his lounge room couch. He described the complainant “laying on him.” Five or 10 minutes later he saw the appellant and complainant “get off the lounge and walk to my spare room.” He said that the complainant walked first and the appellant followed her.
Less than five minutes later he heard the front door open and said to Ms Anthony that they must be going to the appellant’s house. It appeared as though they were “going to hook up.”
He said that five or 10 minutes later the appellant “stormed in” to the apartment “panicking like in distress” and said “This girl has literally just said that I raped her … like I went to put my dick in her and she said you just raped me.” Mr Robb said he thought that this was a joke and tried to calm the appellant down.
Mr Robb said that the walls in the apartment were “Not very thick at all” and that he could hear his previous flatmate snoring. He did not hear any screams of “Stop it” or anything like that.
Veronica Anthony
Ms Anthony’s evidence was that during the car ride the complainant was telling her that she was a model, did journalism and was “just talking about herself.” She saw no vaping. She said the complainant was wide awake during the journey. She saw the complainant cuddling up with the appellant in the back seat of the car. She said that there was a phone charger in the car but the complainant never asked to use it.
She agreed with the proposition put to her in cross-examination that the appellant and complainant looked as if they “might hook up”.
She said that the appellant came back into the apartment and said “What the hell” and that “she just freaked out and like ran away”. She heard this while she was in the bedroom. She did not hear the appellant saying that “She said I raped her”.
She did not hear any screams of “Stop it” or anything like that.
Complaint to NE
After the complainant left the appellant at the front of Mr Robb’s apartment building, she ran to a row of townhouses and tried every gate until she found one that was unlocked. The occupant, NE, opened the door. He noticed immediately that she was distressed but still able to communicate. She told him “I’ve been horribly raped” and that her phone was not working as it had fallen to the ground. She said “it hurts terribly” and “can you see the bruising around my collarbone?” She said that she was the only girl at the apartment. She said to NE that the appellant had said “If you tell anyone about this, I’m going to kill you.” His evidence was that she described him as “a bikie and powerful and was able to hurt people” and that he had “bragged” about those traits. When police arrived he heard the complainant telling police that she had been anally and vaginally raped.
Complaint to Acting Sergeant Richards
At around 6:05am Acting Sergeant Brad Richards arrived at NE’s residence. He observed the complainant to be distraught and crying. He observed bruising to her neck. The complainant confirmed that this was from biting. Sergeant Richard asked the complainant if she had “been penetrated both vaginally and anally”, to which the complaint replied “Yes.”
Complaint to Constable de Waal-Hart
Constable de Waal-Hart arrived shortly after Sergeant Richards. The complainant made a complaint about being vaginally and anally raped. She told the constable that she had been choked for 15 seconds and that she had said “Stop you’re going to kill me” and that the appellant had said “I’m only joking. Don’t say that, you’re making it weird.” After having been taken to the Canberra Hospital the complainant told Constable de Waal-Hart that she had two lines of cocaine and MDMA.
Jessica Merchant
ACT Ambulance officer Jessica Merchant arrived at the residence at around 6:19am. She observed the complainant to be emotional and distressed. She observed some bruising around the complainant’s knees. The complainant told her that she had been bitten and choked for approximately 15 seconds. Ms Merchant observed bite marks around the complainant’s neck which had yet to develop into any form of bruising.
Complaint to her mother
The complainant was transported by ambulance to the Canberra Hospital for examination. The complainant’s mother arrived there at around 6:40am. The complainant complained to her mother about her right cheekbone which her mother touched and felt a raised line or ridge. The complainant’s mother also saw redness and swelling on her left rib and a long, large bruise to her left upper arm.
The complainant told her mother that she had been raped in the laundry area and she was saying “No, I don’t want this. I want to go home. Please stop this.” She complained about being choked, seeing stars and saying “Stop, I can’t breathe. You’re killing me.” She said that the appellant responded “Stop talking like that. Why do you have to say that?” She told her mother that the appellant had pulled her back when she tried to crawl away. She said that the appellant had performed oral sex on her on the couch and had said “Make me hard.” She also told her mother that she had been anally penetrated.
Complaint to her father
The complainant’s father gave evidence that he attended the Canberra Hospital at roughly 6:00am. He noticed his daughter’s face was swollen, her neck had bite marks and that she had bruising on her ribs. Within 15 minutes of him arriving the complainant told him that the person who assaulted her had violated her rectum and vagina and bitten her like an animal. She said that the appellant had choked her while she was saying “Stop” to which he responded “I don’t like the way you are speaking. Stop talking like that.” She also said that the appellant had dragged her into a room where the assault happened.
Medical evidence
The complainant was judged unfit for medical examination at 9:00am on 16 May 2021 and again at 2:05pm that afternoon. Dr Virginia French conducted an examination at 9:00pm on 16 May 2021. However, due to the complainant’s distressed state, a history of the incident was not taken. As a result, the information recorded by Dr French was in part told to her by the police and in part volunteered spontaneously to her by the complainant. The information recorded included: “[P]enile/vaginal penetration with ejaculation, penile/anal penetration uncertain if ejaculation occurred, and suction and biting to the neck.” Dr French conducted a genital examination but the complainant did not wish to proceed with a top to toe physical examination. No injuries or abnormalities were detected in the vagina or anus. Dr French said that it was of no significance that no injury was detected in the complainant’s anus notwithstanding the complaint of scratching and no lubrication.
DNA swabs were taken from the complainant’s genitals and anus.
At 3:00am on 17 May 2021 the complainant had a fall in the hospital. At 2:55pm Dr French conducted a top to toe examination of the complainant. The complainant was still distressed at this time, “so it wasn’t the perfect examination”. She conceded that it was difficult to obtain an accurate history from the complainant. Matters recorded in the contemporaneous notes of Dr French included:
He grabbed me by the leg when I was trying to get away. I was face down.
Reported that she fell asleep in the car on the way to the apartment.
He kept putting a vape into my mouth.
Isn’t sure if it was his penis or his fingers in her bum.
When he was inside me he was biting my neck.
In relation to strangulation, Dr French recorded “About 15 seconds. On top of me. I was lying back on the floor. Eyes went black”. She also paraphrased the complainant as “… saying to stop and [she] wouldn’t stop saying this and he strangled her to try to stop her from talking.”
Dr French’s notes record that the complainant told her she had taken Valium on 15 May 2021 and that she was also prescribed fluoxetine for depression. The toxicology certificate indicated that substances including diazepam, cocaine, MDMA and fluoxetine were detected in the complainant’s urine and blood. The complainant told Dr French that she had more than one line of cocaine. At the hospital the complainant was given paracetamol, codeine, oxycodone, ketorolac and fentanyl for pain relief.
Dr French gave evidence about photographs of various injuries which she took of the complainant during her top to toe examination. That evidence is summarised below.
Right face-oval bruise to the right cheek: “There was no specific recollection of how the injury occurred that was offered. She has mentioned that she was face down at some point and certainly impact of a curved surface against a hard flat surface could produce a bruise such as this.”
Right neck-bruise less than 0.5 cm in diameter, 3.5 cm above the right sterno‑clavicular joint: The allegation was that the complainant had been strangled with two hands around the neck. The doctor said “So my opinion would be that a bruise of this size in that location supports an account of being strangled with a hand. The bruise is on a protected area of the body so we would consider it unlikely to be a non-accidental injury … And the size of the bruise, it would be in keeping with what we would call a fingertip bruise … So an account of a two-handed strangulation with a .5 centimetre round bruise on a very protected area of the neck is in keeping with that account.” In cross‑examination Dr French agreed that the bruise to the right-hand side of the complainant’s neck could potentially be “Consistent with a less duration, less energetic love bite.”
Bruise on the left-hand side of her neck: “[She said] she had been bitten to the neck – I think sucked and bitten to the neck, and these bruises in my opinion are supportive of that account.”
Rectangular bruise on the left upper arm: “The shape of the bruise is oblong and may reflect the surface or the type of compression applied to produce the bruise and it would be a result of blunt force trauma.” She said that no specific account was offered in relation to that bruise but “upper arm injuries with an account of restraint would certainly be in keeping with [such an injury].”
Bruise on the left upper abdomen: “[The complainant] said she was thrown around the laundry room and that she was face down at some point and certainly if there were a flat surface and her body was pushed against that, the curve of that lower rib would have certainly been prominent and blunt force could have caused a bruise such as that.”
Bruise on the inner right knee: The doctor said that this would be “suspicious for non‑accidental injury. One possible account would be forced separation of the legs but there was no specific account offered of that.”
Cluster of three bruises on right lower leg: “The significance of a cluster of bruises makes them more likely to be non-accidental. The location of that is more likely to be non‑accidental because it’s a slightly protected part of the body. And there was an account offered … that the alleged assailant tried to grab [the complainant] as she was trying to get away. That comment was made when we were examining these bruises and I determined that the arrangement and appearance of these bruises would support the account of being gripped by the ankle.”
A bruise below the knee on the back of the right leg: The only account was of the complainant being gripped by the leg. The doctor said it was “Difficult to determine if that would be the likely cause of this bruise, but certainly possible. The back part of the leg is subject to less accidental injury …”
Dr French also gave evidence about a subsequent presentation, about a week after the incident, of the complainant to the Canberra Hospital. She was complaining of pelvic abdominal pain and constipation. The doctor expressed the opinion that the constipation was caused by the large amounts of opiate pain relief which the complainant had been prescribed. She said that the complaint about persistent pelvic abdominal pain supported her allegation of sexual assault.
DNA evidence
Swabs were taken from the complainant’s anus and neck, returning mixed DNA profiles. Apart from the complainant’s DNA, it was not possible to identify the source of the other DNA. No sperm traces were located in the swabs taken from her vagina and anus. No DNA other than that of the complainant was detected in those swabs.
Clothing examination
None of the clothing worn by the complainant on 15 May 2021 was found to have any rips in it.
Ground (a) – Unreasonable verdict
Appellant’s arguments
The oral argument on the appeal differed in emphasis from the matters raised in the appellant’s written submissions.
The focus of the appellant’s oral argument was upon the contemporaneous complaint made by the appellant to Mr Robb and Ms Anthony that he had just been accused of rape. As the evidence of Mr Robb and Ms Anthony about this conversation had not been challenged, it should be accepted that this conversation occurred. It was not put to the appellant during cross‑examination that the statements he made to Mr Robb and Ms Anthony were false expressions of surprise having regard to what had occurred. In the absence of such a challenge, the submission was that there must have remained a reasonable doubt as to whether the appellant’s expression of surprise was sincere, and hence a reasonable doubt as to whether the appellant had been reckless as to the complainant’s consent. The appellant relied upon the decision in Hofer v The Queen [2021] HCA 36; 95 ALJR 937 at [28] for the proposition that if the prosecution was to submit that the complaint made by the accused was feigned or a false one then that should have been put in cross-examination.
The appellant also submitted that a number of aspects of the evidence affirmatively established that his version of events was not inherently implausible and, even if not affirmatively believed, might be true, in the sense that there is a reasonable possibility that it was true. The matters relied upon focused on aspects of the evidence given by the complainant and matters arising out of the evidence given by Mr Robb and Ms Anthony. Those matters “Should have prevented the jury from reaching any verdicts of guilty beyond reasonable doubt.” The various matters relied upon will be addressed in more detail below.
Further, the appellant relied upon the lack of uniformity among the verdicts and submitted that this indicated that the jury did not accept all of the complainant’s evidence in relation to the incident. That applied to the allegation of digital penetration (count 1) and digital penetration of the complainant’s anus (count 3). It was submitted that the jury’s finding of not guilty in relation to counts 1 and 3 damaged the credibility of the complainant in a manner that rendered the remaining verdicts unreasonable or unable to be supported having regard to the evidence.
The test in M v The Queen
The function of the court when addressing a ground of appeal asserting that a verdict is unreasonable or cannot be supported by the evidence was identified in M v The Queen (1994) 181 CLR 487 at 493-495:
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 or 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 regard to those considerations.
…
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. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
(Footnotes omitted.)
The test in M is not to be confused with the legal question of whether a verdict of guilty was open on the evidence. Nor is it to be confused with the function of the jury at trial of determining whether the offence has been proved beyond reasonable doubt.
For the purposes of determining this ground of appeal, the whole of the evidence before the jury was not put before this court. Rather, as occurred in Pell v The Queen [2020] HCA 12; 268 CLR 123 at [10]: “Each party placed before the Court all the evidence that it considered relevant to the determination of the [ground of appeal] and each party addressed written and oral submissions as to the inferences to be drawn from it.”
The appellant’s complaint evidence
As indicated above, the appellant placed at the forefront of his argument the contemporaneous complaint that he made to Mr Robb and Ms Anthony.
The evidence of the accused was that when he left the complainant downstairs outside the apartment he went back up to the apartment, banged on Mr Robb’s door, told him to come out and told him that “This girl just accused me of raping her.” He subsequently said similar words to Ms Anthony.
Mr Robb said:
Chidi like stormed in and I could see he was panicking, he was like putting his hands on his head, he was like panicking and I thought what’s going on and he goes – he like – sort of like he’s like, ‘Can you just come talk to me for a second like outside of your bedroom’ and I said, ‘Yes’. I go, ‘Are you all right?’ and then he’s like walking around like panicking like in distress and I go, ‘What’s going on?’ and he’s like – he said, This girl has just literally just said that I raped her’ and I said, ‘What?’ I go just, ‘No. You’re crazy’ and then he’s like, ‘She literally just said like I raped her’. I go, ‘What happened?’ and he goes – he’s like, ‘Literally like I went in that room like we walked in there and soon as I – like I went to put my dick in her she said you just raped me’ and then I said to him – I almost thought it was a joke at the start, I was – like nearly held back laughter. I said, ‘You just tripping. You just crazy like maybe you’ve had too much to drink tonight'. I go, 'Just don't worry about. Just calm down’. I go, ‘It couldn’t have happened’ like – you know what I mean, like – and he’s like – just like – he’s real distressed, he’s panicking like – he looked like – you know what I mean and then I said, I was like, ‘Just calm down, it’s all good’.
In cross-examination the issue was touched on briefly:
And you’ve described he seemed to be in some sort of shock or disbelief?---Yes. He was almost panicking, yes.
Now, you said what you’ve told the jury about coming down and “Don’t worry.” You know, “I was here.”?---M’mm.
Did you have this conversation in front of Veronica or separately from her?---Veronica was in my room.
Ms Anthony said “Chidi came in and just like pushed the door open and said like, ‘What the hell’” and that “She just freaked out and like ran away and he tried to get her an Uber.” In cross-examination she said she did not hear Chidi say “She said I raped her.” She said he seemed shocked and bewildered.
The only factual statement made to Mr Robb or Ms Anthony that was inconsistent with the complainant’s version of events was his description that “Like I went to put my dick in her she said you just raped me.” If that was intended to be a summary of the whole of the sexual interaction or alternatively the part of the sexual interaction that led to the allegation of a lack of consent then that was obviously inconsistent with the complainant’s version of events. Insofar as his statement related solely to the penile-vaginal intercourse, it is contrary to the complainant’s version in that the event involved a much longer period of intercourse, her protests and the choking. However, it also did not accurately describe the accused’s version of what occurred which involved two full thrusts of his penis with the complainant’s vagina – not accurately described as “I went to put my dick in.”
In the context of the prosecution case, it was very clear that there was a challenge to the accuracy of that statement as a description of either the whole of the sexual interaction or of the penile-vaginal intercourse. It was a necessary part of the prosecution case that this was a self-serving, inaccurate or incomplete description of what occurred. That is because it was fundamentally inconsistent with the version of events given by the complainant and the witnesses who gave evidence of her complaints afterwards. It was inconsistent with the complainant’s version, not only because it did not make reference to the earlier sexual acts but also because it did not refer to the duration of the penile‑vaginal intercourse and choking described by the complainant. As each of the prosecution witnesses had given evidence prior to the appellant, these matters would have been clearly understood by the appellant and counsel for the appellant.
In support of the contention that the prosecution ought to have expressly put to the appellant that his complaint was self-serving, the appellant relied upon the decision in Hofer v R at [28]. In that passage a majority of the court found that there was no reason, in principle, why the rule in Browne v Dunn (1893) 6 R 67 should not be followed in criminal trials and stated the general rule as follows:
As a general rule defence counsel should put to witnesses for the Crown for comment any matter of significance which is inconsistent with or contradicts the witnesses account and which will be relied upon by the defence.
Unlike Hofer, the situation in the present case was not one involving a defendant giving evidence that had not been put to a prosecution witness and thereby denying the witness the opportunity to respond to the allegation. The present case was one where there was no specific challenge to the evidence of the accused who was fully on notice of the case he was to meet and of the version of events that was put against him. When understood in that context, to the limited extent that the evidence of his complaint was inconsistent with the prosecution case, it is not a case in which the reasoning in Hofer could be applied. It was certainly not a case where the genuineness of his complaint stood alone as an uncontested and objective fact inconsistent with the appellant’s guilt. Rather, the complaint and its genuineness was available to be assessed by the jury in the context of the whole of the evidence including the medical evidence and the evidence of both the complainant and the accused as to what had occurred.
That is how the matter was approached at trial. It is clear that counsel for the appellant understood that, to the extent that the complaint was inconsistent with the prosecution case, its genuineness was in contest and to be assessed in light of the whole of the evidence, submitting in his closing address “You would have to not only have already rejected the accused’s denials but somehow discounted that evidence as confected.”
That is also how the jury understood the evidence. It was theoretically possible that the jury could have found the appellant guilty on the basis that it accepted his version of events in relation to the penile vaginal intercourse (two full thrusts) but that this was done with at least recklessness as to consent. In such a case, what was said by the appellant immediately afterwards might have been significant in determining whether recklessness was established. However, that is clearly not what the jury did. Given that it found that count 2 (cunnilingus) and count 5 (choking) were proved beyond reasonable doubt it is clear that the jury did not accept the appellant’s limited description of the penile vaginal intercourse. Rather, it accepted beyond reasonable doubt at least recklessness as to the absence of consent in relation to the cunnilingus and that the choking occurred during the penile-vaginal intercourse. In other words, even though there was a not-guilty verdict in relation to count 3, the jury must have substantially accepted the complainant’s version of the intercourse the subject of count 4. It was in that context that the appellant’s complaint to Mr Robb was to be considered.
Therefore, the appellant’s contentions about the significance of his contemporaneous statement must be assessed in light of the potential for the jury to reject his version of the physical acts involved in the penile-vaginal intercourse and accept the complainant’s version of the physical acts that occurred. In that context, his statement was simply one piece of evidence that must be considered along with all the other evidence in the case.
It is next necessary to consider the collection of matters which the appellant says, in combination with the appellant’s complaint to Mr Robb, indicate that the verdict is unreasonable or cannot be supported by the evidence. These were matters which were said to lend support to the plausibility of the appellant’s version of events. They also included some matters said to cast doubt upon the reliability of the complainant’s version.
Intoxication of the complainant: The submissions of the appellant placed significant reliance upon the intoxication of the complainant. They point to her intoxication with MDMA, alcohol and cocaine and that by the time of reaching Mr Robb’s apartment she was very intoxicated. They also point to her perception of the appellant and Mr Robb as potential sources of cocaine.
The appellant’s submissions do not reach a conclusion as to the significance of intoxication. It may be that the implied submission was that the intoxication may have led the complainant to act as the appellant said she did. Alternatively, it may be said to reflect upon the reliability of the complainant’s evidence generally, particularly in so far as her extreme intoxication may have affected her subsequent ability to recall some parts of what had occurred. The complainant’s variable evidence as to the means by which she and the accused went from the couch to the spare room is illustrative. So too is the uncertainty in her account as to whether she had been anally penetrated by the appellant’s penis or by his fingers.
However, it does not follow that the jury could not consider the complainant reliable in relation to the acts for which the accused was convicted, particularly given the objective medical evidence of her physical injuries. The effect of the appellant’s evidence at trial was that the allegation of rape was an invention after the consensual acts of digital penetration and cunnilingus in the living room and further acts of digital penetration and cunnilingus in the spare room. It was for the jury to consider whether the complainant’s intoxication would be of particular salience in relation to this scenario, and particularly as to whether intoxication would encourage a false complaint generally or the specific false complaint made to NE.
The other theme in the approach of counsel for the appellant at trial was to suggest some generalised unreliability arising from differences between the evidence as to what occurred leading up to arrival at the apartment. Attention was drawn at trial to the evidence of Mr Robb, Ms Anthony and the appellant about what happened at Kokomo’s, Fiction and in the car. In relation to this theme in the appellant’s case, and contrary to the thrust of the appellant’s submissions, the complainant’s intoxication was in fact a matter which tended to explain inconsistencies in her evidence or differences in recollection between her and the other witnesses (who were also intoxicated). That was because intoxication would make it less likely that she would accurately recall details of matters occurring at the nightclubs of only indirect relevance to any of the incidents giving rise to the charges. Because of this, the complainant’s intoxication was a fact which did not clearly detract from her credibility so as to necessarily give rise to a reasonable doubt as to the accused’s guilt.
Flirting and return to the apartment: The submissions rely upon the fact that the complainant was flirting with the appellant at various points throughout the night and that she said that the appellant was “Nice and pleasant and fine”. The submissions also pointed to Ms Anthony’s evidence that the complainant was cuddling the appellant in the back of the car.
The complainant accepted that she was a “Flirtatious, friendly person” and had danced because she was a “Friendly, fun person in general.” She agreed that at one point in the CCTV she was flirting with the accused. Mr Robb described the complainant and accused as being “Flirty” and “Like, she was sort of like all over him. I could tell he was like sort of feeling her too, like. They were like – yes, like having fun.”
So far as the car trip was concerned, the complainant gave evidence that she fell asleep in the car and the accused kept putting a vape in her mouth. Referring to what had been shown in a portion of CCTV footage from one of the nightclubs she said: “You've seen the footage [of the night club] beforehand, he kept putting a vape in my mouth that I didn't want and that's what happened again in the car.” She said she was leaning on the accused’s shoulder and said “I was literally asleep on his arm. That’s how safe I felt with him at the time.”
The complainant reported to Dr French what had occurred in the car who recorded: “'Reported that she fell asleep in the car on the way to the apartment” and "He kept putting a vape in my mouth."
Mr Robb said that he was sitting in the front seat of the car and observed the complainant “Getting real cuddly up next to” the appellant in the back seat. Ms Anthony said that during the car trip the complainant was talking “Non-stop … Just about herself”.
The accused gave evidence that during the car trip the complainant was leaning on him the whole time and talking to Ms Anthony.
The submissions made on behalf of the appellant appear to presume that this behaviour is consistent with the evidence of the appellant and inconsistent with the evidence of the complainant. On the contrary, the evidence about her behaviour is consistent with both versions of what ultimately occurred. Nothing about the complainant’s earlier conduct in talking to and flirting with the accused, going back to Mr Robb’s apartment or her conduct in the car indicates an intention to have sexual intercourse with the appellant or consent to any of the acts which were alleged or admitted to have subsequently occurred. They do, however, provide a very modest foundation for a doubt as to the accused’s recklessness as to consent. As explained below, one explanation for the not-guilty verdict on count 1 was that the jury had such a doubt in relation to the initial digital penetration. The conduct of the complainant prior to the alleged offending was clearly an issue that formed part of the overall circumstances which needed to be considered by the jury. However, it was not a matter which necessarily gave rise to a reasonable doubt as to the accused’s guilt in relation to counts 2, 4 and 5.
Typing the complaint’s address into the Uber app: The complainant accepted that she had typed her address into the Uber app on the appellant’s phone. The appellant’s evidence was that she had then “cancelled it, jumped straight on my lap, started kissing me.” The complainant’s evidence elicited in cross-examination accepted that her address was in his phone and accepted the possibility that, rather than him having entered the address, she had put the address into his account. However, she denied having cancelled the order in order to start kissing the appellant:
I suggest that he gave you his phone for you to order an Uber and you put your address into his account. Could that have happened?---Yes.
And that you didn’t proceed to order the Uber. You cancelled it and then jumped into his lap and started kissing him?---I deny that completely.
The typing of the complainant’s address into the app on the appellant’s phone does not undermine the complainant’s version of events or give support to the accused’s version. On both versions it occurred before any kissing commenced. The appellant’s version was that because there was no cocaine or alcohol at the apartment the complainant “Got angry again” and said she wanted to go home. He offered to call an Uber and gave her his phone. She put her details in the phone. She then “cancelled it, jumped straight on my lap and started kissing me.”
In fact, the entry of the address details into Uber supports the complainant’s version of events, namely that upon discovering that there was no party at the premises, she wanted to leave and took steps to do so. It was at about that point that the appellant commenced his unwanted sexual conduct. On the appellant’s version the complainant, being only motivated by cocaine and alcohol, being angry and wishing to leave, suddenly changed her mind and initiated the sexual encounter.
The entry of the address details into the Uber app does not provide a compelling reason to conclude that the appellant’s version of events might be true. It is consistent with a motivation on the part of the complainant to leave the premises. It fits only very awkwardly into the narrative given by the appellant.
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