R v Fangupo - [2003] NSWCCA 61

No judgment structure available for this case.

CITATION: R v FANGUPO [2003] NSWCCA 61

HEARING DATE(S): 12/03/03

JUDGMENT DATE:
17 March 2003

JUDGMENT OF: Meagher JA at 1; Dowd J at 2; Barr J at 3

DECISION: Appeal dismissed

CATCHWORDS: Criminal law - whether verdict unreasonable and unsupportable on the evidence - Criminal law - whether verdict unreasonable by reference to acquittal on another count.

CASES CITED: M v The Queen (1994) 181 CLR 487
McKenzie v The Queen (1996) 190 CLR 348
R v Markuleski (2001) 52 NSWLR 82 at 87

PARTIES :
Sione FANGUPO (Appellant)
REGINA (Respondent)

FILE NUMBER(S): CCA 60514/02

COUNSEL: Appellant: PJ O'Donnell
Respondent: PG Ingram

SOLICITORS: Appellant: Smythe & Mallam
Respondent: SE O'Connor

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/21/1049

LOWER COURT
JUDICIAL OFFICER : O'Reilly DCJ

60514/02

MEAGHER JA
DOWD J
BARR J
Monday, 17 March 2003

REGINA v Sione FANGUPO

Judgment

1 MEAGHER JA: I agree with Barr J.

2 DOWD J: I agree with Barr J.

3 BARR J: The appellant, Sione Fangupo, appeals against a conviction entered in the District Court following his trial on a charge of having sexual intercourse without consent in circumstances of aggravation. There is no application for leave to appeal against the resulting sentence.

4 The appellant was tried before a jury on two counts, namely that -

1. between 18 November 1993 and 30 May 1994 he had sexual intercourse with the complainant, she being under the age of ten years, namely seven years; and

5 The appellant was the husband of the complainant’s mother and step-father of her children. There were two relevant children, namely the complainant, who was born on 31 May 1986 and her younger sister, who was born in about 1991.

6 The Crown case on the first count was that when the complainant was seven years old she and the appellant were alone in the family home. The complainant’s mother was outside in the yard. Her younger sister, then aged three years, was somewhere else in the premises, but the complainant could not say where. The complainant and the appellant were seated side by side on a sofa watching television. The appellant put his hand inside the complainant’s underpants and inserted his finger into her vagina.

7 She did not tell her mother because she did not understand what the appellant had done.

8 The second occasion occurred between 19 September and 20 October 1999, while the complainant’s mother was on holiday in the United States of America, having left the complainant and her younger sister in the care of the appellant. The complainant was then thirteen years of age and the younger sister about eight years of age. According to the complainant, the appellant took her younger sister to a birthday party and returned by himself to the house. She and he were the only occupants of the house. He told her to go into her mother’s bedroom and she did so and sat on the bed. He entered the room. She was seated on the edge of the bed and he told her to lie down. He took off her pants and his pants and had sexual intercourse with her by inserting his penis into her vagina.

9 She did not tell her mother because the appellant told her that if she did her mother would kill the two of them.

10 It does not appear how the matter came to the notice of the complainant’s mother or the authorities, but the complainant was taken for a medical examination on 2 April 2001. There were complete, healed hymeneal transections, consistent with penetration by a blunt object which could have been a finger or a penis. Nothing could be said about the age of the transections other than that they were more than a couple of days old. That evidence was consistent with there having been penetration on the first occasion alone, on the second occasion alone or on both occasions.

11 The jury found the appellant not guilty on the first count and guilty on the second.

12 The first ground of appeal asserts that the verdict of guilty on the second count is unreasonable and cannot be supported on the evidence.

13 The test to be applied is that stated in the joint judgment of Mason CJ, Deane, Dawson and Toohey JJ in M v The Queen (1994) 181 CLR 487. It is as follows -

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.

14 In April 2001 the complainant’s younger sister was interviewed by a police officer. The interview was tape recorded and a transcript was made of what was said. The audio tape and transcript were put before the jury. The sister told the officer that she remembered something happening in 1999 when she was in year 3 at school. The complainant and the appellant went into her mother’s room. These are the relevant passages from the interview -

A. … I seen when mum was in America that [the complainant] and Sione, my dad, he went into mum’s room and, with [the complainant] and locked the door behind them and then he locked the hall door and I, I was banging on the door and telling that, if I could come in and he said no. And about five or 10 minutes later they went, came out.

…

Q. … You mentioned that they went into mum’s room.

A. ‘Cause I heard, ‘cause my door isn’t lock, my door can’t lock ‘cause my bedroom’s near mum’s room and they went into mum’s room with [the complainant] and I heard the door lock behind them and I heard this, and the hall door, they locked the hall door too.

Q. And did you see them go into that room?

A. ‘Cause they locked the hall door behind them.

Q. Hall door and then they locked the back door?

A. And I heard them lock mum’s door.

Q. O.K. all right. What did you hear after that, after they locked the two doors?

A. [The complainant] said she wanted to get out.

15 The complainant was asked about this evidence and there were these questions and answers -

16 The appellant gave sworn evidence denying any sexual misconduct.

17 It was submitted on behalf of the appellant, and may be accepted, that the jury’s assessment of the credit of the complainant was vital as she was the sole witness alleging the commission of the offence and that the medical evidence was equally consistent with the allegation taken up in the first count, on which there was a verdict of not guilty.

18 Then it was submitted that the evidence of the complainant’s younger sister significantly eroded the evidence of the complainant.

19 I do not accept that submission. Assuming that the occasion described in her interview by the younger sister to have been the occasion about which the complainant was speaking, the complainant was in error in saying that she and the appellant were the only persons in the house at the time. She was mistaken about the birthday party. But those facts were not central to the commission of the offence and the jury might well have taken the view that the complainant had honestly but mistakenly included in her version of the facts the appellant’s taking the younger sister to the party. There is nothing inherently improbable in the notion that he should on an occasion have taken her to a party, leaving himself and the complainant as the only occupants of the house during the mother’s absence on holiday.

20 It cannot have been entirely clear to the jury which door the complainant’s sister was referring to in her interview. A sketch plan of the complainant’s mother’s bedroom, drawn by the complainant, had been tendered before her sister gave evidence. It showed only the room, the bed, a door in one corner and a second door in an opposite wall captioned as leading onto the back yard. If there was a hall adjacent to any of the internal walls of the bedroom it was not shown. The complainant’s sister was not shown the sketch and was not asked to make any drawing herself.

21 The appellant gave this evidence -

22 It seems quite possible that the jury found, assuming they accepted the complainant’s sister, that she was banging on the door in the hall which led on to a second door which led into the mother’s bedroom. They may also have concluded, as seems equally possible, that it was on the door that led directly into the bedroom that the complainant’s sister was banging.

23 It was implicit in the submissions that the complainant could not have been telling the truth about what happened in her mother’s bedroom because if she were she must have heard her younger sister banging on the door. Assuming in favour of the appellant that the door referred to was the door which led directly into the bedroom I do not think that the evidence of the complainant suffers by comparison. The jury were entitled to reason that a thirteen year old girl might not, during the process of being raped by an adult male, have noticed anything but the feelings, sights and sounds of what was happening immediately around her.

24 Then it was submitted that the complainant’s account of how the appellant removed items of clothing while lying on top of her was improbable. There was this evidence -

25 Before she gave the evidence recorded in that passage the complainant had explained that she had sat on the bed when she entered the room with her feet on the floor and then had lain back with her feet over the end of the bed. There was no suggestion that she ever moved from that position and it would follow that the appellant’s feet were on the bedroom floor. That being so, I see nothing improbable in the complainant’s description of the position he adopted, lying over her, while removing her clothing and his own.

26 Then it was submitted that there was a significant change in the complainant’s recollection as to the time of day when the event occurred. Her evidence at trial was that it happened shortly after 12.30 pm whereas, as it was conceded, she had previously told the police that it happened between 4 and 5 pm. In my opinion this is precisely the sort of peripheral detail that an honest witness might well get wrong. It was of no significance at all to the question whether the events had occurred as she said. The jury were entitled to regard the discrepancy as immaterial.

27 In my opinion this ground of appeal should be rejected.

28 The second ground of appeal asserted that the verdict of guilty on the second count was unreasonable and could not be supported in the light of the acquittal on the first count. Where inconsistent verdicts are asserted the test for the appellate court is one of logic and reasonableness. The respect for the function which the law assigns to juries (and the general satisfaction with their performance) has led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense. Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury. In a criminal appeal the view may be taken that the jury simply followed the judge’s instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all the ingredients must be proved beyond reasonable doubt: McKenzie v The Queen (1996) 190 CLR 348. See also R v Markuleski (2001) 52 NSWLR 82 at 87.

29 Proper respect must be accorded to the superior position of the jury in seeing and hearing the witnesses.

30 It was submitted on behalf of the appellant that the evidence on both counts was essentially similar and that each relied on the uncorroborated evidence of the complainant as against the denials on oath by the appellant. In each count there was a delay in making complaint. The medical evidence was equally capable of supporting either count. Those submissions may be accepted.

31 Then it was submitted that the complainant was significantly contradicted by her sister on the second count. For reasons I have explained I do not accept that submission. Neither do I accept the submission which rides upon it, namely that the Crown case on the second count was weaker than that on the first.

32 Moreover, if the complainant was mistaken about the absence of her sister on the second occasion and simply did not hear her banging on the door, as I think entirely understandable, her evidence was corroborated by her sister on the second count. The appellant could have had no proper reason for locking himself and the complainant in the bedroom. Far from being a weaker case, therefore, the case on the second count was stronger.

33 It was submitted that there was no proper way of reconciling the verdicts and that the acquittal on the first count must have involved a rejection of the complainant as a witness of truth. I do not accept that submission. One important distinction between the first and second counts was that when she gave her evidence the complainant, a sixteen year old child, was giving evidence first about something that had happened when she was seven years old and then about something that had happened much more recently, when she was thirteen years old.

34 The jury were properly instructed that they had to consider the counts separately and that they had to distinguish between honesty and accuracy in scrutinising the complainant’s evidence.

35 In her evidence on the first count the complainant mentioned the incident a number of times, not always consistently. She said these things -

I was sitting next to my step-father. He put his hand inside my pants and he touched my private … …

A. Yes. He had his hand inside my vagina. …

A. He was using his finger and touching inside.

36 She was asked why she did not tell her mother and gave this answer -

Because I didn’t know what he was doing, I didn’t understand.

37 The jury were told that they had to be satisfied beyond reasonable doubt that the appellant’s finger had penetrated the vagina. They understood that a touching would not be enough to convict on the first count. There was no alternative count of indecent assault. Even given that the last answer of the complainant unequivocally had the appellant’s finger inside her vagina, the jury were not entitled to ignore what she had previously said, namely that he touched her private and that he had his hand inside her vagina. Obviously, the first described event was not enough for a conviction and the second was literally impossible. The jury were entitled in my opinion to conclude that the complainant was being truthful when she said that the appellant placed his finger in the vicinity of her vagina but that her description of events was so imprecise that she might have been mistaken about penetration. That was especially so in the light of her evidence that she did not know what the appellant was doing, that she did not understand, and that she was only seven years old at the time.

38 In my view the verdict of guilty on the second count is not unreasonable because it and the acquittal on the first count are reconcilable. In my opinion this ground of appeal fails. I propose that the appeal be dismissed.

************

Last Modified: 03/18/2003

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Citations

R v Fangupo [2003] NSWCCA 61

Cases Citing This Decision

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Cases Cited

4

Statutory Material Cited

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M v the Queen [1994] HCA 63

Hocking v Bell [1945] HCA 16

CITATION:	R v FANGUPO [2003] NSWCCA 61
HEARING DATE(S):	12/03/03
JUDGMENT DATE:	17 March 2003
JUDGMENT OF:	Meagher JA at 1; Dowd J at 2; Barr J at 3
DECISION:	Appeal dismissed
CATCHWORDS:	Criminal law - whether verdict unreasonable and unsupportable on the evidence - Criminal law - whether verdict unreasonable by reference to acquittal on another count.
CASES CITED:	M v The Queen (1994) 181 CLR 487 McKenzie v The Queen (1996) 190 CLR 348 R v Markuleski (2001) 52 NSWLR 82 at 87
PARTIES :	Sione FANGUPO (Appellant) REGINA (Respondent)
FILE NUMBER(S):	CCA 60514/02
COUNSEL:	Appellant: PJ O'Donnell Respondent: PG Ingram
SOLICITORS:	Appellant: Smythe & Mallam Respondent: SE O'Connor

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/21/1049
LOWER COURT JUDICIAL OFFICER :	O'Reilly DCJ