R v Cotter

[2005] NSWCCA 187

CITATION:	R v COTTER [2005] NSWCCA 187
HEARING DATE(S):	6 May 2005
JUDGMENT DATE:	6 May 2005
JUDGMENT OF:	Grove J at 28; Hulme J at 1; Simpson J at 29
DECISION:	Appeal against conviction is dismissed; Leave to appeal against sentence granted but that appeal is dismissed also.

PARTIES:	Regina Andrew James Cotter
FILE NUMBER(S):	CCA 2004/2862
COUNSEL:	Crown: D Frearson Appellant: M Johnston
SOLICITORS:	Crown: S Kavanagh Appellant: SE O'Connor

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/31/0225
LOWER COURT JUDICIAL OFFICER:	Coolahan DCJ

- 8 -

2004/1820

GROVE J
HULME J
SIMPSON J

Friday 6 May 2005

R v ANDREW JAMES COTTER

Judgment

1 HULME J: On 23 March 2004 the above named Appellant was arraigned on three charges:-

1. That on 15 February 2002 he did have sexual intercourse with TLH without her consent and knowing she was not consenting.
2. That on 15 February 2002 he did assault TLH thereby occasioning to her actual bodily harm.
3. That on 15 February 2002 he did assault TLH.

2 There will be no publication of the name of the complainant in the case. Hence it has been convenient to refer to her in the preceding paragraph and in the balance of these reasons as TLH.

3 To each charge the Appellant pleaded not guilty. On 25 March a Jury returned verdicts of not guilty on counts 1 and 3 and a verdict of guilty on count 2.

4 Later that day his Honour sentenced the Appellant by directing his release upon him entering into a bond pursuant to Section 9 of the Crimes (Sentencing Procedure) Act conditioned that he be of good behaviour for a period of 3 years and accepting the supervision of the New South Wales Probation and Parole Service for so long as that Service considered necessary. His Honour also made an apprehended violence order pursuant to Section 562B(e).

5 The grounds of appeal are:

1. The verdict of guilty on count 2 is unreasonable and cannot be supported having regard to the evidence and to the verdicts of not guilty on counts 1 and 3.
2. The sentence was manifestly excessive.

Ground 1

6 The only eye witnesses to the events said to constitute the offences charged were TLH and the Appellant. They had lived in a de facto relationship for some 10 years prior to 15 February 2002 and had three children. TLH asserted that on the morning of that day while the children were in the lounge room, after or perhaps still sleeping in a “tent” they had erected there and in which room at their request she had spent the night, the Appellant made advances to her which she rebuffed, that later while she was dressing in the bedroom he repeated these advances and after she had fully dressed pushed her down on the bed with a clear desire to have sexual intercourse. She asserted that she resisted but that he removed her pants, underpants and his own clothing, held her down, slapped her on both sides of the face, when she cried out to a daughter, put first his hand and then a pillow over her face for a short period, “probably just long enough to need a breath” and that, terrified by his actions she desisted from resisting further and submitted to intercourse occurring.

7 It was the Crown’s case that the face slapping was the assault which occasioned actual bodily harm and the incident with the pillow the assault, the subject of count 3.

8 According to the complainant, after the Appellant had finished, he left the room, she dressed, gathered up the children and drove to the Branxton Police Station and complained of being assaulted and raped.

9 The Appellant, who gave evidence, testified the intercourse was consensual and that at no stage did the complainant say or do anything to indicate she did not want to have sex beyond remarks to the effect, “all right, hurry up, let’s get it over with”. He said that after the intercourse he had lent over to kiss the complainant, she bit him on the lip and said “I’ve had enough, I’ve got you” and started going ballistic, swinging her arms in an attack on him. He said he picked up the pillow to help defend himself or deflect her attack. The Appellant denied that TLH had any injuries to her face at that stage and asked if she had any injuries to her arms he said that it was possible that when he was fending her off she might have copped an injury. He said that as soon as he could break away he left the room. While he admitted having had intercourse, the Appellant denied the substance of TLH’s evidence as to all 3 charges.

10 There was evidence from police officers that when seen that morning TLH was visibly upset, shaking and crying intermittently, her face was red and, on her cheeks there appeared to be marks within the red. One officer, Constable Shepherd, apparently a friend of TLH said that she saw TLH had a fresh bruise on her forehead. A doctor who examined TLH something of the order of 6 hours after the time at which TLH said the incident occurred said that he saw red marks and small bruises on TLH’s head, a red mark on one forearm and a thin red line with broken skin on the other.

11 Constable Shepherd and the doctor gave evidence of complaint, close to but not identical with, the account TLH gave to the jury.

12 I do not think it necessary for the purposes of these reasons to summarise at length all of the evidence which was given in the trial. It should be added however that it was common ground between TLH and the Appellant that for some period prior to February 2002, relations between the 2 had not been good, there was some improvement after they saw a marriage counsellor but towards the end of 2001 relations had again deteriorated and that during this period the Appellant was accustomed to seek sexual relations far more often than TLH desired they occur and if she could get out of it she did. She agreed that the Appellant pestered her for sex virtually every day and on occasions, perhaps as a “basic scenario”, consensual sex went like this, “Look, for God’s sake just hurry up and get it over with”. Both agreed that consensual intercourse had occurred a few days before 15 February 2002.

13 It should be mentioned also that TLH gave an account of movement on and near the bed and of being held down and rolled over for something of the order of an hour in total– an account which, in its detail, is not all easy to accept. Of course, if TLH was raped, that she should not remember every action and in logical order is not surprising but, in circumstances where there were 2, in many respects inconsistent, accounts of events, any unlikelihood in TLH’s evidence was something calculated to damage her credibility or reliability in front of a jury.

14 In the course of his summing up, Judge Coolahan drew to the jury’s attention the need for them to consider the three charges separately, that consent obtained by persuasion is still consent but apparent consent or lack of resistance obtained by violence or threats is not.

15 Taking the view that there was no corroboration of the complainant’s account of what had happened in the bedroom his Honour warned the jury that before they could convict on any of the counts on the indictment they would have to scrutinise the evidence of the complainant with great care. His Honour pointed out that before they could convict the Appellant of any of the counts the jury would have to be satisfied beyond reasonable doubt that TLH was both an honest and accurate witness in respect of what she said happened on the particular morning.

16 The considerations which arise when it is suggested that there is inconsistency between a verdict or verdicts of acquittal on the one hand and a verdict or verdicts of guilty on the other have been the subject of discussion in numerous authorities including McKenzie v R (1996) 190 CLR 348, R v Markuleski [2001] 52 NSWLR 82 and MFA v R [2002] 213 CLR 606.

17 It is unnecessary for the purposes of this appeal to dilate further on what was said in those and other cases where the issue has arisen beyond recording that the ultimate test is whether the verdict of conviction is, in the words of Section 6(1) of the Criminal Appeal Act “unreasonable, or cannot be supported, having regard to the evidence, or that … on any other ground whatsoever there was a miscarriage of justice”. It is not simply a case of pointing out that a jury that convicted the accused person on one charge on the basis, largely or exclusively, of a witness’ evidence was not equally persuaded by that witness in respect of one or more other charges.

18 Here TLH’s account of the assault occasioning actual bodily harm derived some support from the evidence of other witnesses that shortly afterwards she was seen to be suffering some injuries in a number of areas. Despite the Appellant’s evidence of TLH going “ballistic” before he left the bedroom, his evidence did not provide any sensible explanation for the vast bulk of what was seen by police officers soon after and by the doctor later in the day. Thus, putting aside the significance of the Appellant’s acquittal on the other charges, there was more than adequate evidence, only part of which emanated from TLH, to justify his conviction on the second count.

19 As the trial judge instructed the jury, the first count involved the Crown establishing 3 matters – sexual intercourse, which was conceded, absence of consent and knowledge in the Appellant of that absence of consent. Having regard to TLH”s evidence that she stopped resisting and that, possibly as a basic scenario over a significant period, if the Appellant pestered her enough her approach was “just hurry up and get it over with”, the jury may well not have been persuaded that at the time intercourse occurred, the Appellant did not know that TLH was not consenting. In saying that, I do not suggest that it is the conclusion I would, or they should, have reached. It is however sufficiently possible to answer the Appellant’s argument that because the jury did not convict him of the first count, it was unreasonable for them to have sufficient confidence in TLH’s credibility to convict him on the second count.

20 As I have indicated, TLH gave an account of a deal of activity on the bed where the matters of complaint occurred. In the context of her evidence that the duration of the pillow incident was “probably just long enough to need a breath”, the jury may have regarded that incident as either not intentional or, having convicted him of the more serious assault charge, as of no significance. I do not suggest that the latter would have been a strictly correct approach but, as courts have recognised, juries are not always completely logical and “Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law.” – R v Kirkman (1987) 44 SASR 591 at 593, quoted with approval by Gaudron, Gummow and Kirby JJ in MacKenzie v R (1996) 190 CLR 348 at 367.

21 Thus the Appellant’s acquittal on counts 1 and 3 does not persuade me that the Appellant’s conviction on count 2 is one which should be quashed. This being the only ground of appeal against conviction, his appeal in this regard should be dismissed.

Ground 2

22 The only matter argued under this ground was that “given the delay from offence to sentence and the good behaviour of the Appellant during the period, supervision of Probation and Parole for a further three years is not required”.

23 As Judge Coolahan recognised, immediately after the incident the subject of the charges, TLH and the Appellant separated. In his remarks on sentence his Honour observed, in a passage which was not challenged in the appeal as inaccurate, that:-

“… the accused is now 37 years of age, he has no prior convictions whatsoever. There was evidence before the Court on a voir dire hearing … of some emotional or psychological problems that the offender appeared to be suffering from shortly after the commission of the offence which required his being scheduled for four days in a psychiatric institution. I am told that he now … is receiving outpatient medical care for these problems.”

24 In submissions on sentence, counsel who appeared for the Appellant in the court below argued for the imposition of a recognisance rather than a harsher penalty. In the course of doing so, after referring to this treatment and saying that the Appellant’s psychiatrist and general practitioner were comfortable with his continuing care, he submitted, inter alia that:-

“ the Court’s communication of its seriousness of the offence would in the particular circumstances of his case be well founded with ongoing supervisory requirements of those people in that area and it would determine for him at least and bring home the seriousness of his conduct…(sic)”

and later,

“he would benefit in my respectful submission to your Honour of the imposition of a condition that he continue with his treatment until those in authority of the profession suggest that he may make his own way in the world …”

25 Given the information his Honour had as to the Appellant’s emotional or psychological problems and treatment, it is perfectly understandable that his Honour would wish to ensure his treatment continued until it was probably no longer needed. It would have been quite inappropriate, if not impossible, to attempt to lay the onus of supervision of this on the medical practitioners themselves and in that situation, it was clearly well within the proper exercise of his Honour’s sentencing discretion when imposing the bond sought, to impose the condition which is the subject of complaint in this ground. No error in his Honour doing so is shown nor, in my view, is there any error in his Honour’s selection of the term of three years for the bond.

26 I accept that given that the Appellant would not seem to have been guilty of any misbehaviour in the two years between the time of his offence and trial, his Honour need not have picked a period so long as three years; but he did so, and I am not satisfied that any error in doing so is shown. Sentencing judges have a discretion and error must be shown before this Court interferes.

27 I would give leave to appeal against sentence but dismiss the appeal. I have previously indicated the order I would propose in respect of the appeal against conviction.

28 GROVE J: I agree with Hulme J.

29 SIMPSON J: I also agree.

30 GROVE J: The order of the Court is the appeal against conviction is dismissed, leave to appeal against sentence granted, but that appeal is dismissed also.

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