R v Coram

[2006] QCA 313

SUPREME COURT OF QUEENSLAND

CITATION:

R v Coram [2006] QCA 313

PARTIES:

R
v
CORAM, Robert Graham
(appellant)

FILE NO/S:

CA No 97 of 2006
DC No 104 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Rockhampton

DELIVERED ON:

25 August 2006

DELIVERED AT:

Brisbane

HEARING DATE:

14 August 2006

JUDGES:

Jerrard and Keane JJA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal against conviction dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – GENERALLY – appellant was convicted of one count of unlawful and indecent assault (count 1) and acquitted of two counts of unlawful and indecent assault (counts 2 and 3) – appellant was fined $2000 – whether conviction on count 1 was inconsistent with acquittals on counts 2 and 3 and resulted in a miscarriage of justice

Mackenzie v The Queen (1996) 190 CLR 348, considered

COUNSEL:

A J Rafter SC for the appellant
M J Copley for the respondent

SOLICITORS:

Winning & Sorensen for the appellant
Director of Public Prosecutions (Queensland) for the respondent

1. JERRARD JA: On 14 March 2006, Mr Coram was convicted of having unlawfully and indecently assaulted N on 4 January 2002, and fined $2,000, the fine to be paid within three months.  He has appealed against his conviction on the ground that it was inconsistent with his acquittal on two other counts of having unlawfully and indecently assaulted N on the same day, in the same general circumstances.  Mr Rafter SC, his counsel on the appeal, contends the verdicts cannot stand together, as explained in Mackenzie v The Queen (1996) 190 CLR 348 at 366.

1. In that case the joint judgment of Gaudron, Gummow and Kirby JJ held that to decide whether an asserted inconsistency exists between different verdicts by a jury, suggesting compromise or confusion, the test is one of logic and reasonableness.  An appellant relying on inconsistent verdicts must satisfy a Court of Appeal that the two verdicts cannot stand together, meaning that no reasonable jury who had applied their minds properly to the facts in the case could have arrived at the conclusions they did.  That joint judgment emphasises that appeal courts must respect the function assigned by the law to juries, and be reluctant to accept as accurate arguments that verdicts are inconsistent and cannot stand together.  Importantly, different verdicts on different counts may simply show that a jury has carefully followed a trial judge’s instruction to consider separately the case presented by the prosecution in respect of each count.  Appeal courts have to be very cautious about setting aside verdicts, which are adequately supported by evidence, simply because the appeal court finds it difficult to reconcile them with verdicts reached on other charges.  Nevertheless, where the inconsistency appears an affront to logic and common sense and strongly suggests a compromise, or confusion, appellate intervention is necessary to prevent a possible injustice.

1. Turning to the evidence, Mr Coram is a naturopath, medical herbalist, acupuncturist and massage therapist.  He met N, a chiropractor, on 4 January 2002.  She had been visiting a chiropractor who shared the clinic at which Mr Coram practiced.  They had a discussion about exchanging services, meaning that he would massage her and she would give him a chiropractic adjustment, and their conversation involved a proposition, apparently emanating from him, that they could exchange or cross refer patients.

The prosecution case

1. Her evidence was that by agreement she presented herself at the clinic in the afternoon for the massage, and asked for back “rub”, because “my back is sore.”[1]  The discomfort was because she had driven that day from Brisbane to Rockhampton and was a little stiff.

   [1]At AR 17.

1. She swore that he told her to get ready, and said he would go and change, but she did not know what getting ready involved.  Accordingly, she followed him outside the room and asked what she was meant to do.  He told her that the best thing would be for her to get into her “birthday suit”, although some people kept their underwear on. 

1. She elected to do the latter, retaining her bra and underpants, and lay down on the massage table on her stomach, as he had apparently instructed her to do.  He entered, and she recalled that when the lights were dimmed, and he then advised that it would be better if she took off her bra when he massaged her back.  Somewhat reluctantly, she did that.  He then tucked a small “sheet” into her underwear, with the result that she felt as if she was wearing a G-string.  He massaged her legs and pulled her underwear down below her bottom, “as if I wasn’t wearing anything.”[2]  He then massaged from her buttocks to her shoulders, but on a number of occasions his thumbs or fingers would slip through her buttocks and touch her vulva, on the outer labia on either side.  That conduct constituted count 1.

   [2]At AR 18.

1. By then she was somewhat nervous and tense, but made no objection, and asked him some questions related to naturopathy.  He then asked her to turn over so he could continue the massage, and she did so.  He held up a sheet of some sort, which she expected him to place over her upper torso, but he did not.  Instead, he began massaging her pectoral muscles and pulled her underwear down to her pubis and slipped his hands down and over to her lower body “to my pubes”[3].  He asked “Do you ever get swelling down there?”, to which she somewhat abruptly replied “No”.[4]  She said that that he touched her “just above the vagina, a couple of inches above.”[5]  I would infer that she was describing being touched on her groin, but not on her labia or vulva or any part of her external genitalia.  That touching was count 2.

   [3]At AR 18.

   [4]At AR 18.

   [5]At AR 18.

1. She said that Mr Coram then continued to massage her stomach and breasts, and that when massaging her chest, he grabbed each of her nipples and twisted them.  She accordingly covered her chest with her arms, and he said something to the effect “[o]h, you’re ticklish or tense”.[6]  She did not reply.  Eventually the massage finished, she dried the massage oil off, and left.  She ultimately made a complaint to the police on 30 January 2002. 

   [6]At AR18.

1. It was put to her in cross-examination, and she denied, that she had said that she was stiff and sore all over; her evidence was that she had said only that her back was sore.  It was put, and she disagreed, that she was invited to remove her clothes down to her underpants if she was comfortable with that, prior to Mr Coram leaving the room.  She repeated that she had had to ask him what to do, and had been told to remove all her clothes.  The cross-examiner suggested that she had been asked if she wanted her back massaged, and she agreed she had been; it was put she had been asked if she wanted her buttocks massaged and she denied being asked that, or agreeing; it was put that she was asked if she wanted her neck massaged and her legs massaged, and she said she could not recall being asked either of those questions.  It was put, and she denied, that only some three quarters of her buttocks were exposed as she lay on her stomach and was massaged; and put and denied that his hands had not touched her labia as she was massaged when lying on her stomach.

1. Likewise it was put, and denied, that he had covered the upper part of her body at first after she had repositioned herself on her back, and put, but denied, that she had been specifically asked whether she wanted each of her neck, chest, abdomen, and legs massaged, and that she had expressly agreed.  It was put, and denied, that he had specifically positioned a sheet above her lower abdomen.  She likewise disagreed with the suggestion made to her that Mr Coram’s hands had not descended below the position of the sheet on her lower body, and likewise put and denied that he had not twisted either of her nipples. 

1. It was put, and denied, that he had not remarked on her being tense, and that he had not asked if she ever had a swelling in her pubic area; and put and denied that she had said, when asked “How was that?” at the end of the massage, that “It was good”; and she denied that she had thanked him.

1. There was other evidence to the effect that it would be entirely inappropriate to massage the front of the body of a female – or male – person who had complained only about a sore back and was receiving a massage for that purpose, and that there was no sensible reason for massaging the genitalia of a person with a sore back.  Cross-examination of other witnesses established that while N had told another woman on or about the day of the massage that Mr Coram had massaged her breasts, and that she had felt very uncomfortable with that, N had said nothing about her nipples being tweaked or twisted. 

The defence case

1. Mr Coram gave evidence in accord with the case put by his counsel to N, describing explicitly consensual massage of different portions of the body, but no touching at all of the labia or genitalia.  He readily agreed that he had massaged N’s breasts, but denied tweaking or twisting either nipple.  On his account her privacy was respected at all times and her express consent was obtained.  He called his receptionist to give evidence that N had been asked by the receptionist “How that was?”, and that N had said “how good it was”.

The verdicts

1. There was no complaint on appeal about any part of the summing up by the learned judge, which put each of the three counts to the jury, advising them of their right to reach different verdicts.  The conviction on count 1 necessarily means that the jurors accepted beyond reasonable doubt N’s description of what happened regarding that count, and it was open to them to do that.  Her description was of a situation in which she was repeatedly surprised by what was happening, but had continued to submit because she “had placed her trust” in Mr Coram.  The things causing her surprise included the reference to her birthday suit, the adjustment and then removal of her underwear as she lay on her stomach, the touching of her labia, then the fact that no privacy was later afforded for her upper body, and that once again her underwear was pulled down to some degree.  Further, her breasts were massaged, and all of this when she had described only a sore back. 

1. The acquittals on counts 2 and 3 do not necessarily imply any rejection of any part of that evidence.  Regarding count 2, there was no complaint that her genitalia were actually touched by Mr Coram as she was massaged when lying on her back, and the jurors were entitled to doubt whether, in those circumstances, there was any indecent touching to which she had not consented. 

1. Regarding count 3, it was the twisting of the nipples that was the basis of count 3, not the allegation that Mr Coram massaged N’s breast.  N’s evidence in chief included the specific assertion she had not consented to her “vagina”, pubic area, or nipples being touched, but that was the only non-consent she described.  The jury were thus obliged to conclude that she had consented to her breasts being touched, that not being the subject of a complaint, or any evidence of non-consent, before them, and it being clear that she made no complaint at all about that at the time.  The learned judge put count 3 to the jurors in these terms:

“Count 3 is exactly the same terms, and this is the incident where she said he touched her breasts.  In particular he touched her nipples and twisted them.”[7]

In those circumstances the fact that later that same day she told a woman with whom she was staying only about the breast massage making her uncomfortable, and said nothing about her nipples being specifically tweaked or twisted, is sufficient to explain the verdict of not guilty on that count.  The jury may not have been persuaded beyond reasonable doubt that that had happened, as she described, particularly because Mr Coram admitted somewhat reluctantly in his evidence that on occasions when massaging female breasts, he did (unintentionally) touch the nipple.  Further, the longer the massage continued without any protest or response from N, the more likely the inference she was in fact consenting.

[7]At AR 139.

1. It follows in my view that there is evidence to support the conviction on count 1 and that the jurors may simply have followed the instruction to consider each case separately, and not been satisfied that counts 2 and 3 were established with the same clarity as count 1.  Accordingly the verdicts are not inconsistent and are not an affront to logic and common sense.  I would dismiss the appeal.

1. KEANE JA: I agree with the reasons of Jerrard JA and with the order proposed by his Honour.

1. MULLINS J: I agree with Jerrard JA.