R v Fitness
[2021] QCA 133
•18 June 2021
SUPREME COURT OF QUEENSLAND
CITATION:
R v Fitness [2021] QCA 133
PARTIES:
R
v
FITNESS, Mark Stuart
(appellant)FILE NO/S:
CA No 66 of 2020
DC No 2736 of 2019DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction
ORIGINATING COURT:
District Court at Brisbane – Date of Conviction: 11 March 2020 (Dick SC DCJ)
DELIVERED ON:
18 June 2021
DELIVERED AT:
Brisbane
HEARING DATE:
30 October 2020
JUDGES:
Sofronoff P and Fraser and Mullins JJA
ORDER:
Appeal dismissed.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was found guilty of one count of sexual assault by a jury – where the prosecution bore the onus of proving beyond reasonable doubt that the appellant kissed the complainant’s breast, the complainant did not consent to the appellant touching her in that way, and that touching was unlawful and indecent – where the prosecution had the onus of negativing that the appellant did not honestly and reasonably, but mistakenly, believe that the complainant did consent – whether the verdict was unreasonable or insupportable having regard to evidence
CRIMINAL LAW – APPEAL AND NEW TRIAL –PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where the appellant was tried in the District Court in respect of an indictment that charged him, inter alia, with two counts of sexual assault (counts 3 and 5) and two counts of rape (counts 4 and 6) – where the jury found the appellant guilty of one count of sexual assault (count 5) and not guilty of the other three counts (counts 4, 5 and 6) – where the ground of appeal is that the guilty verdict is unreasonable as it is inconsistent with the not guilty verdicts – where the appellant argues that there is no rational explanation for the acquittals other than that the jury did not accept that the complainant was a credible witness – where the appellant submits that there was no difference in the quality or cogency of the evidence given by the complainant upon count 5 in comparison with her evidence upon the other counts – where the appellant submits that it was not open for the jury to accept her evidence on count 5; and the jury’s doubts about counts 3, 4 and 6, must logically have impacted upon the jury’s assessment of the credibility of the complainant’s evidence upon count 5 – whether the verdict of guilty on count 5 was unreasonable by reason of such an inconsistency
MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, cited
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, citedCOUNSEL:
L K Crowley QC for the appellant
D Nardone for the respondentSOLICITORS:
Anderson Legal for the appellant
Director of Public Prosecutions (Queensland) for the respondent
SOFRONOFF P: I agree with the reasons of Fraser JA and with the order proposed by his Honour.
FRASER JA: The appellant was tried in the District Court in respect of an indictment that charged him with two counts of supplying a dangerous drug, two counts of sexual assault and two counts of rape. The appellant pleaded guilty to the two counts of supplying a dangerous drug. The jury found the appellant guilty of one count of sexual assault and not guilty of the other three counts. The ground of appeal is that the guilty verdict is unreasonable as it is inconsistent with the not guilty verdicts.
The offences were alleged to have occurred on 17 March 2018 at a party that started at about 4 pm at the home of Mr and Mrs R. The complainant and her friend Ms S arrived at about the same time as the appellant and his partner Ms L. Mr K, a former boyfriend of the complainant, arrived at about 7 pm. All those present consumed MDMA. All of them apart from Mr K also drank substantial quantities of alcohol.
Before Mr K arrived, all of those present got into an outdoor spa at the rear of the backyard of the house. When Mr K arrived at about 7 pm the complainant left the spa and joined Mr K in the front yard, where they had sex on a car. They then joined the others in the spa. During the night all of those present left the spa and played a card game. Before the card game commenced the complainant and Mr K were in a toilet or bathroom and others recorded noise they made whilst they were having sex. After the card game the group returned to the spa. Later, Mrs R left the spa and went to sleep in her bed. Later still, the complainant fell asleep whilst in the spa. She was either carried from the spa or assisted from the spa by Mr R and Mr K. They took her into the house and placed her on the bed in which Mrs R was asleep. After Mr R and Mr K had returned to the spa, the appellant left the spa for the stated purpose of going to the toilet. He remained away for some time before Ms L found him at the house.
The Crown case upon each charge and the jury’s verdicts were as follows:
Count 3 (sexual assault)
Whilst the group were in the spa the appellant touched the complainant over her vaginal area without her consent.
Not guilty
Count 4 (rape)
Whilst the complainant lay on the bed the appellant digitally penetrated her vagina without her consent.
Not guilty
Count 5 (sexual assault)
Whilst the complainant lay in the bed the appellant kissed the complainant’s right breast around the nipple without her consent.
Guilty
Count 6 (rape)
Whilst the complainant lay on the bed the appellant penetrated the complainant’s vagina with his tongue without her consent.
Not guilty
The complainant gave evidence that in the spa the appellant was sitting opposite her, and she had her back leaning against Mr K and her legs floating towards the middle of the spa where the appellant was. The appellant ran his hand up her leg, moved her togs to one side, and grabbed her on her vagina under the water (count 3). The complainant said, “What the fuck? This isn’t a free for all” and she told Mr K that the appellant had grabbed her vagina. The complainant’s recollection was that everybody was in the spa at that time. She was not aware that anyone in the spa reacted to her comment to Mr K. She moved within the spa and stayed near Mr K.
In cross-examination the complainant was asked to show again how it happened. She lifted up her hand with an open palm facing up and a thumb sticking out. She said the appellant had moved towards her under the water and stuck out a hand to touch her. When asked to show how he had moved her togs to one side, she said she did not know how he did it. When he cupped her his thumb went in between her togs and her vagina. She agreed she had not mentioned that before coming to Court. She said she had told police that when she made her statement. She agreed the statement she gave police did not include anything about the appellant moving her togs aside. There was nothing in her detailed statement to police about the appellant moving her togs aside. She had not mentioned it when she met the prosecutor to go over what was in her statement. She had not mentioned it when she gave evidence in the Magistrates Court in committal proceedings. In re-examination the complainant said it wasn’t an actual physical grabbing of the togs and moving them aside. The appellant’s hand slid onto her vagina. It went in between the togs and her vagina. Maybe she used the wrong wording earlier when she said “pulled aside”.
After referring to other activities, including having sex with Mr K in a bathroom, the complainant gave evidence that at some stage Mrs R left the spa and went to bed. The rest of the group continued to drink and talk and they got back into the spa. At some point after she got back into the spa the complainant became physically quite limp whilst she was sitting beside Mr K. He and Mr R helped her out of the spa and carried her to the bed where Mrs R was already asleep. Mr K helped her to undress, put her into the bed, left the room and closed the door.
The appellant subsequently came into the room and stood beside the bed. He told her that she was pretty wasted. He pulled the blanket back and ran his hand up her leg. Whilst standing over her, he touched and squeezed her inner thighs and touched her vagina. He was leaning on her. He pulled her off the bed so that her legs were spread. The appellant rubbed her and put his fingers inside her vagina (count 4). When he did that she froze. She was scared and did not say anything to him. The complainant tried to hit Mrs R to wake her but she did not wake up. The complainant heard a noise from the back door and the appellant quickly left. The appellant returned to the room not long afterwards. The complainant saw the door open and the appellant crawling into the room on his hands and knees. The appellant kissed her body and her breasts and her neck. He mainly kissed her right breast on the nipple and around it (count 5). The appellant started kissing her thighs and grabbing her, and rubbing his penis against her. He put his tongue in her vagina (count 6). The complainant did not consent to the appellant touching her.
The complainant did not do anything while that was happening. She was scared. After the appellant had done those things to her, the back door opened. It was Ms L. The appellant quickly left the room and pulled the door closed. Ms L said to the appellant, “what the fuck are you doing in there”. The appellant responded, “Nothing. I was going to the toilet”.
The complainant gave evidence that Mr K subsequently came into the room. She had her eyes closed and mistakenly thought Mr K was the appellant. When Mr K grabbed her feet to try and put her underwear on she kicked him and said, “don’t fucking touch me”. She realised it was Mr K when he threw her clothes at her, swore, and left. She recognised his voice and she opened her eyes as he was leaving the room. She tried to call him back. She went to sleep in the bed beside Mrs R.
In the morning the complainant made the following statements in text messages to Mr K, commencing just before 7 am. The appellant had taken advantage of her. She remembered that when she was in bed with Mrs R “he came in the first time and started kissing me, fingered me and sucked my nipples, then left and came back and licked me out”. He jumped up and ran out when Ms L walked in the back door. Ms L asked him what he was doing. He replied “nothing”. The complainant gave evidence that before Mr K arrived at the house, the complainant told Mrs R the appellant came in and did something to her. The complainant did not know how to articulate it; the complainant told her he had fingered her and licked her out. When Mr K arrived, they went to the police station. From there they went to see a doctor who examined the complainant and took some swabs.
Mr K gave evidence that the complainant had been his partner a number of years ago. In March 2018 they had been separated for about three weeks and had just started seeing each other in the week leading up to 17 March 2018. Mr K gave evidence that in the spa everyone was being quite friendly with each other for the most part, with arms round each other and talking. At one point Mr K noticed what seemed to be the appellant’s hand go under the water between the complainant’s legs and she made a comment like “Oh mate, its not a free for all”. It did not seem to be a big deal to anyone else. The complainant wasn’t making a big deal of it. Mr K did not see contact between the appellant’s hand and the complainant’s vagina but he saw the hand go to that region, heard her reaction and put two and two together. After that contact the night continued how it was, with everyone drinking, talking, and reminiscing in the spa.
Mr K gave evidence that after Mrs R had left the spa because she was tired or intoxicated, the complainant essentially passed out in the spa. He and Mr R lifted her out of the spa and put her into the bed with Mrs R. (In cross-examination Mr K said that when he and Mr R took the complainant into the house there was no chance she could walk by herself, they essentially had to carry her, she was not able to step out of the spa, she was completely unconscious, and she was not aware of what was going on.) After some time Mr K noticed that the appellant wasn’t there. He mentioned that to Ms L. She left the spa. Pretty quickly afterwards the two of them returned to the spa together. Subsequently Mr K noticed that the appellant was missing again. Ms L left and again returned with the appellant to the spa. (In cross-examination Mr K agreed that he did not tell police that he witnessed the appellant getting out of the spa twice; rather he had said there was one time when he had noticed that the appellant was missing, Ms L had left the spa, later Ms L had gone to the house, and the appellant had returned.)
Mr K gave evidence that he left the spa later, maybe around 2 am. When he went into Mrs R’s bedroom he saw that the complainant was lying uncovered and spreadeagled on the bed. She was unresponsive when he tried to speak to her. When he attempted to try to dress her she swore at him. He left after covering her up. Mr K received the text messages from the complainant. He then returned to the house. He could not remember the conversation at the house or the conversation he had with the complainant on the way to the police station.
Mr K agreed in cross-examination that when everybody was in the spa there was a solid perimeter of people around the outside of it, although everyone had a decent amount of space without having to touch someone. It was quite possible that on one occasion the complainant was lying back and asking for the appellant, Ms L, and the complainant’s friend Ms S to hold the complainant up in front of Mr K. In his statement to police he had not mentioned anything about seeing the appellant moving his hand towards the complainant’s legs.
Mrs R gave evidence that by the end of the night she was quite intoxicated. The complainant had become intoxicated. She did not see any physical contact between the appellant and the complainant in the spa. She did not remember the complainant being in her bed. In the morning she woke up next to the complainant. When they woke up, they had a giggle after Mrs R asked the complainant why she was naked. The complainant got excited and said, “you wouldn’t believe what happened last night”. The complainant said the appellant came in and touched her and kissed her on the boob. The way the complainant told the story “was of excitement, so it hadn’t actually hit home what – what it meant yet”. Mrs R told the complainant they had to go and tell the appellant and Ms L. The complainant had a grin on her face and it was as though something exciting had happened to her.
Mrs R gave evidence that in the initial conversation the complainant told Mrs R that the appellant fingered her. In a subsequent conversation, Mrs R and the complainant, Mr R, Ms L, and the appellant were present. The complainant repeated what she had already said. Mrs R did not think the complainant had said what had happened. The appellant did not say anything in that conversation.
In cross-examination Mrs R said she did not see anything inappropriate going on between the appellant and the complainant. They were not sitting on the same side of the spa and the complainant was with her. She saw the complainant lying back and wanting to float while everyone held her up underneath. The complainant did that in front of Mr K. Mrs R heard Ms L warn the complainant that Mr K was watching. She heard the complainant say something along the lines of she didn’t give a fuck and Mr K had to learn his lesson. Mrs R did not see the appellant put his hand towards the complainant and touch her on the vagina. She did not hear anyone say anything about that. She and Ms L were holding the complainant up when she was floating and the appellant was on the side of the spa with Mr R.
Mrs R said that when the complainant awoke and told her about something happening with the appellant the complainant appeared to be happy and excited. She was not upset. She did not mention “rape”, “sexual assault” or that anything happened without her consent. Mrs R gave evidence that the complainant became upset when no one in the group believed the complainant and the appellant was denying what the complainant was saying. In re-examination Mrs R said it was not so much the appellant denying it; it was more that no one in the group really believed it. Mrs R did not remember the appellant getting to say much.
Mr R gave evidence he did not see any physical contact between the complainant and the appellant in the course of the evening. In cross-examination Mr R confirmed he did not see anything inappropriate between the appellant and the complainant. He did not see the appellant touch the complainant and he did not hear the complainant say anything about the appellant touching her. Mr R gave evidence that Mrs R was intoxicated when she went to bed. Mr R recalled that the complainant looked like she was passing out when she was in the spa. They took her out of the spa and put her in the bed next to Mrs R. Mr R returned to the spa. Subsequently Mr K returned to the spa. Mr R did not notice the appellant not being with the rest of the group in the spa. Mr R went to bed at around 3 or 3.30 am. He got into the bed where Mrs R and the complainant were. The complainant was then under the blanket. He recalled being woken by Ms L telling him to get up because the complainant was saying something about the appellant. The complainant and Mrs R were not then in bed. Mr R could not recall what was said in a subsequent conversation.
Ms S gave evidence that she was intoxicated throughout the night. She did not know when she first became intoxicated. She thought the group were drinking throughout the day. She did not think she saw any physical contact between the appellant and the complainant in the spa. She recalled being in the spa, the complainant being on Mr K’s lap, the complainant passing out, and Mr R, Mr K and Ms S helping the complainant out of the spa and taking her to bed. She did not see the appellant doing anything inappropriate towards the complainant, she never saw him acting inappropriately or making any comments, and she never heard the complainant complaining.
A police officer gave evidence that on 18 March 2018 the complainant told her things that had happened between herself and the appellant. The police officer took notes of the conversation. In cross-examination the police officer agreed the complainant said she had been touched by the appellant whilst they were in a spa, and the complainant had said, “wow, that’s not cool”. Another police officer gave evidence that a search on 18 March 2018 did not find any fingerprints matching those of the appellant on the door to the R’s bedroom or on the floor of that room. The appellant’s right big toe was identified in a footprint directly next to the bed and that was the only identifiable print in the bedroom that matched the appellant. The internal size of the spa was 1.9 by 1.9 metres.
On 20 March 2018 the appellant participated in a recorded interview with police. The appellant described events at the party, including the complainant being carried from the spa to the main bedroom where she was put in bed next to Mrs R. The appellant referred to going to bed around 4 am and being woken about 7 or 7.30 am by Mrs R who was sitting on the edge of the bed. Mrs R said the complainant alleged that the appellant had oral sex with her. The appellant described going outside and telling the complainant, in the presence of Mrs R and Ms L, that he did not touch her. The appellant had only met the complainant about three times and didn’t really have a conversation with her. He referred to leaving the spa at one point in the evening to go to the toilet. He was away for 10 or 15 minutes before Ms L came into the toilet to inquire what he was doing. The appellant denied having had any physical contact with the complainant except kissing her hello when she first arrived at the house. He might have touched her when he was sitting next to her in the spa. He denied he kissed the complainant on her breast or engaged in any of the other sexual conduct she had alleged. He denied he was in Mrs R’s bedroom. The appellant referred to Ms L saying that at one stage the complainant was lying across the spa, someone was holding her by the feet, and the appellant was holding her under her back. The appellant said people in the spa were hugging and there was general contact. He was not aware of any flirtatious behaviour within the spa, otherwise than between partners.
It was formally admitted at trial that on 18 March 2018, the appellant’s footprint was located beside the bed the complainant had slept in. It was also formally admitted that skin cells belonging to the appellant were found on exterior labia swabs taken from the complainant. It was admitted that swabs taken from the complainant’s right breast tested positive for the possible presence of saliva, that other bodily fluids could also return a positive result from the same test and the source of the possible saliva was unable to be determined.
The appellant gave evidence that before getting into the spa he had no conversation or interaction with the complainant. In the spa they were “sort of making eye contact”. (In cross-examination the appellant agreed his barrister had not suggested to the complainant that there was eye contact between them.) The appellant remembered the complainant saying to him, “under her breath, “you’re hot” and sayin that [indistinct] were single”.[1] (In cross-examination the complainant denied she had told the appellant he was hot and made suggestions about if only he was single.[2]) After Mr K arrived, the complainant left the spa for a while. Subsequently Mr K told the appellant and Mr R that he had just had sex with the complainant in the back of the appellant’s car. The complainant was happy and all over Mr K. When all seven people were in the spa there was moving around and general conversation. The appellant denied that he touched the complainant on the vagina and he denied any other inappropriate touching of her in the spa. There were no interactions between him and the complainant in the spa. The complainant did not complain to him about the way in which he was positioning himself or touching her.
[1]Transcript, 4 March 2020, 3-18 ARB 324.
[2]Transcript, 2 March 2020, 1-61 ARB 192.
The appellant gave evidence that at some time he noticed Mrs R had left the group. He did not see her leave. The appellant saw the complainant was tired in the spa. He did not see her asleep. He did not see her lying up against Mr K. Subsequently the appellant saw Mr R and Mr K help the complainant out of the spa and they then walked towards the house. About 10 or 15 minutes later Mr R came back, Mr K came back a little bit later. After that the appellant got out to go to the toilet. After going to the toilet he went to the spare bedroom he and Ms L were staying in that night. After lying down for about 10 minutes he walked out of the bedroom and into the dining room.
He heard someone call out, “who’s that” and he answered by giving his name. A door was ajar and he looked in. He saw the complainant lying on the bed. The appellant walked in and knelt down at the side of the bed. The appellant gave evidence the complainant asked him what he was doing. He explained he had been lying down. The appellant said it was still early and they should go back outside. The complainant said she had had enough of the spa. The appellant asked her if she wanted him to go. She said “no”. The appellant kissed the complainant on the neck, whilst he was kneeling down. From the sounds the complainant made she was enjoying that. The appellant kissed his way down, kissing the complainant on the nipple on her right side. The appellant slid his hand underneath the doona and rubbed the complainant on her clitoris for around a minute. (In cross-examination the appellant said that he rubbed the complainant’s clitoris for seconds and it wasn’t long. Defence counsel had put to the complainant that it was a couple of minutes. The appellant denied it was for a couple of minutes.) He did not penetrate her vagina at any stage. While that was happening the complainant warned the appellant Ms L was coming. The appellant jumped up and left the room. The appellant believed the complainant was consenting to what he did because he had asked her if she wanted him to go and she said no, the way she had earlier made eye contact, she hadn’t told him to stop kissing her or pushed her away, and it sounded like she was enjoying it. He did not go back to the room a second time. He did not have oral sex with the complainant or put his tongue in her vagina.
The appellant met Ms L as she was coming up the steps from the bathroom side. Ms L asked the appellant what he was doing and where he was. The appellant said he was lying down on the bed. They walked out together and back towards the spa. He and Ms L got back into the spa and stayed for another hour or so.
The appellant and Ms L later went to bed. When they woke up Mrs R was sitting on the end of their bed. That was at around 7 or 7.30 am. Mrs R said the complainant was accusing the appellant of going into the room, going down on her, and fingering her. The appellant and Ms L went out of the room with Mrs R. After the complainant had spoken to Ms L away from the appellant, Ms L came and told the appellant to leave. The complainant accused the appellant of going into the room last night, going down on her and fingering her. The appellant responded he didn’t do that. Although he knew he had done some consensual acts with the complainant, he had not done the things the complainant accused him of doing. The appellant gave evidence that he did not say he had done any of the things because Ms L was standing beside him and was his fiancée, and he did not want to admit to cheating, which would end his relationship with Ms L.
The appellant gave evidence he told the police things that were obviously false in the interview process because he had lied in the morning and he felt he had to continue to lie to save his relationship. The appellant’s police interview occurred whilst Ms L was waiting at the front of the police station. The appellant said he denied having sexual contact with the complainant because he knew that Ms L would want to hear the tape of his police interview. He told police he hadn’t gone up to the house that night except for going to the toilet. That was not true. He gave those answers because he thought Ms L would be listening to the tape. The appellant was given a record of the police interview and Ms L listened to it. She continued to ask the appellant if anything happened. He continued to deny it. Subsequently, the appellant showed her the report about his DNA sample. After Ms L had pleaded with the appellant, he told her that he had kissed the complainant on her neck, kissed her on her nipple, and his fingers had touched her on the clitoris.
In cross-examination the appellant first said that he went into Mrs R’s bedroom with the intention of letting the complainant know who was out there. He did not go in there to have sexual contact with her. Subsequently the appellant said he did go into the bedroom with some intention to have sexual contact with the complainant. The appellant could not explain why he had not told police Ms L had met him at the top of the steps in the house. He had told police that Ms L had come in and shut the door whilst he was still on the toilet. The appellant agreed he had pretended to the police he was thinking about where the complainant was when he went to the toilet, when he knew all along that she was in the bedroom. He did not agree he was putting on a show for police so that they would think he was believable. He could not recall why he pretended to have a think about where the complainant was.
Ms L gave evidence that after Mr K arrived the complainant left the spa to meet him. When they returned the complainant bragged that they had sex on Ms L’s car in the front yard. After they had all been in the spa for a period, the complainant came around the back of the appellant and lay through the middle of the people asking to be held up. Ms S, Ms L and the appellant held the complainant up in the spa. Ms L told the complainant to be careful because Mr K was watching. The complainant responded to the effect she did not care and Mr K had to get used to it. Whilst they were in the spa the conversation “got a bit … dirty” but the complainant took it to the next level. The complainant said she thought the appellant was hot and she would like to “fuck him”. Ms L was not overly shocked. (The complainant denied that she had said something along those lines in a conversation with Ms L.) Ms L gave evidence that in the spa the complainant was saying little comments about the appellant and also said she had cheated on Mr K when she was with him.
Ms L gave evidence she had not ever seen the appellant doing anything inappropriate towards the complainant. She had not seen him touch her in any way or inappropriately. She had not seen him put his hands between her legs and grab her vagina. On one occasion she and others heard the complainant and Mr K in the toilet or bathroom where they were having sex. Ms L and Mrs R got up to record them. After the complainant and Mr K came out they were told that they had been recorded and they laughed.
Ms L gave evidence that Mrs R was the first to go to bed. The complainant stayed close to the end but fell asleep in the spa. The complainant was then lying on Mr K, facing the rest of the group. Mr R and Mr K helped the complainant out of the spa. The complainant was clearly drunk. The complainant was helped out of the spa but used her legs. The appellant left the spa after Mr R and Mr K had returned. The appellant said he was going to the toilet. After about 10 to 15 minutes Ms L went to check on the appellant. She saw the appellant coming down the stairs from the house towards the bathroom. The appellant told her he had been lying down because he had a bellyache. There was no further conversation at that time about where the appellant had been. Ms L did not see the appellant leave the spa before Mr K left. Between 3 and 4 am they went to bed.
Ms L gave evidence that they were woken by Mrs R, who came into their room and sat on the end of their bed. Mrs R told them the complainant was saying the appellant did some stuff to her. Ms L, Mr and Mrs R and the appellant went to the complainant. The complainant said she wanted to talk to Ms L about the appellant. Ms L gave evidence she thought the complainant was saying what had happened but “I don’t think I was hearing it. Like, I was so enraged.” The complainant said, “He came in ... “You don’t know him”, and, “He did this …””. The complainant “never used any other, like, words” but “just said, “He came in”, and I – I think she said that, “he fingered me and licked me out””. Ms L described the complainant as being very “smug” when she was recounting what had happened.
Ms L gave evidence the appellant was under a lot of pressure from her to go to the police station and get it sorted out. Eventually the appellant called the police. She asked the appellant about when she had seen him coming down the stairs, if he went into the room and whether he did anything and the appellant was crying. He denied it and said he would not ever do that to anyone. Ms L waited at the police station where the appellant was interviewed. At Ms L’s request the appellant gave her a recording of the interview and she listened to it. Subsequently she read a report about DNA. She confronted the appellant. He said he would tell her everything. The appellant told her that the complainant “was making sexual advances, I guess – eyes at him”. The complainant had said to him in the spa, “I wish you were single. Fuck, I wish you were single. I’d fuck you or something like that”. The appellant told Ms L the complainant said he was hot, and there was a bit of leg rubbing under the water in the spa. He did go into the house to lie down because he had a bellyache. When he came out of the room the door was open, the complainant said something, and the appellant said his name. The appellant told Ms L he went into the room, kissed the complainant on the nipple, and rubbed her on the outside of her vagina. Ms L asked the appellant whether that was consensual. He said the complainant was very much into it, moaning, and moving her body to accept it. The appellant told Ms L the complainant heard Ms L come into the house and told the appellant to stop, which is when he got up and walked out.
In cross-examination Ms L agreed she did not hear the complainant say to the appellant he looked hot. Ms L added that the complainant said that to her. She did not hear the complainant say to the appellant, “if I knew you were single”. When the appellant went into the house, he was probably there for about 15 minutes. It was possible it could have been 20 or 25 minutes. The complainant “was basically saying that he went and did it without her, like, knowledge, and no one else knew”, “rape was never said”, and “she wasn’t making out like she wanted it to happen, but she wasn’t making out it was rape either”. Ms L did not recall hearing the appellant tell the police a story about him being on the toilet, Ms L walking in, her shutting the door, and her telling him to come out to the party. Ms L accepted the appellant had said those things if the tape had been played and that’s what was said. She agreed she had never walked in on the appellant in the toilet and shut the door or had the conversation with him that he had described on the tape.
Consideration
For a conviction on count 5 the prosecution bore the onus of proving beyond reasonable doubt that the appellant kissed the complainant’s breast, the complainant did not consent to the appellant touching her in that way, that touching was unlawful and indecent, and the appellant did not honestly and reasonably, but mistakenly, believe that the complainant did consent. The jury could readily conclude upon the complainant’s evidence, which was supported by the DNA evidence and the appellant’s own evidence, that it was proved beyond reasonable doubt that the appellant kissed the complainant’s breast; and defence counsel submitted to the jury that it was not an issue that the appellant did kiss the complainant on her right breast. Although the trial judge gave directions about the element of indecency, that was not a real issue. As defence counsel submitted to the jury, the real issues relating to count 5 were whether the Crown proved beyond reasonable doubt that the complainant did not consent and that the appellant did not honestly and reasonably believe that she consented.
The jury’s verdict on count 5 is consistent only with the jury finding that the Crown had fulfilled its onus of proof upon those issues relating to consent. The jury necessarily must have rejected the evidence of the appellant in so far as it conveyed that the complainant might have consented, or there might have been a basis for him reasonably believing, and he might have in fact honestly believed, she had consented, to the act alleged in count 5. That was open to the jury. The evidence established that the appellant had lied deliberately, repeatedly, and in detail in his police interview in the course of denying that he had engaged in any sexual activity with the complainant. The jury did not have to accept the appellant’s exculpatory explanation for having lied to police. In that respect the jury could take into account that when the appellant attended the police interview he had not been told about the DNA evidence or the evidence of his footprint next to the bed; that evidence was not obtained by police until months after the police interview.
The jury also could take into account that no witness gave evidence supporting the appellant’s evidence upon the consent issues that there had been (apparently suggestive) eye contact between the appellant and the complainant in the spa and the complainant had told the appellant that he was hot and about being single. The jury did not have to accept the evidence given by Ms L, that the complainant told her the complainant thought the appellant was hot and she would like to have sex with him. Nor was there any evidence that any such comment had been conveyed by Ms L to the appellant before the appellant engaged in the conduct charged in count 5. The appellant did not give evidence to the effect of evidence given by Ms L that the appellant told her that in the spa there was a bit of leg rubbing under the water.
It also would not have been unreasonable for the jury to regard statements of the kind the appellant and Ms L attributed to the complainant as being incongruous with the evidence suggesting that at that time there was a close and affectionate relationship between the complainant and Mr K. The jury were not required to reach a different view merely because of the evidence of Mrs R and Ms L about the complainant saying she did not care that Mr K was watching whilst others in the spa (including the appellant) were holding the complainant up and Mr K had to get used to it. That and other evidence about uninhibited conduct of the complainant in and around the spa could be regarded by the jury as lacking significance for the issues at the trial.
It was open to the jury to accept as proof beyond reasonable doubt the complainant’s evidence that she did not consent and her evidence in cross-examination that she did not make the statements or engage in the conduct indicative of consent which the appellant described in his evidence. The evidence of the complainant and Mr K that the complainant reacted angrily when she mistakenly thought that the appellant had returned to the bedroom in the early hours of the morning was consistent with the complainant’s evidence that she had not consented or indicated any consent to the preceding sexual conduct of the appellant. The jury could regard the complainant’s initial text messages to Mr K, as supporting the credibility of the complainant’s account that she did not consent to the appellant’s admitted sexual conduct alleged in count 5. (The initial text messages stated, “where are you? … something happened last night and I’m freaking out I’ve been looking for u”, and “… I don’t know what to call it but he took advantage of me … I’m telling [Mrs R] now and she’s waking [Ms L] so I can talk to her I feel uncomfortable and weird and I don’t know what to do”.) The jury could also regard the complainant’s subsequent text message to Mr K as supplying additional support for the credibility of the complainant’s account of the act alleged in count 5. (Those text messages included statements that “I remember when I was in bed with [Mrs R] he came in the first time and started kissing me, fingered me, and sucked my nipples, then left then came back and licked me out, [Ms L] walked in the back door and he jumped up and ran out …”).
That evidence might reasonably have been regarded by the jury as supporting the honesty of the complainant’s evidence upon counts 4, 5 and 6, even if the jury doubted the reliability of the complainant’s evidence about the touching charged in count 3 or the element of penetration required for counts 4 and 6.
There were some inconsistencies about the timing and detail of the circumstances of the alleged offences referred to in the complainant’s preliminary complaints, her statement to police, and her evidence. There were also inconsistencies of detail within and between the evidence of the other witnesses at the trial. Such inconsistencies are to be expected in a case of this kind. They were not of such significance, individually or cumulatively, as to make it unreasonable for the jury to accept and act upon the evidence of the complainant that she did not consent or convey to the appellant any indication of consent such as he described in his evidence.
Upon the whole of the evidence, it was open to the jury to find that the Crown had proved beyond reasonable doubt that the complainant did not consent to the act charged in count 5 and the appellant did not have an honest and reasonable belief that she did consent.
The appellant argues that the guilty verdict on count 5 nevertheless must be regarded as unreasonable because it is inconsistent with the verdicts of acquittal on the other counts. A verdict of guilty in circumstances such as this may be set aside if there is no “proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required”; but “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.”[3] As the appellant acknowledged in argument, this ground could succeed only if the appellant can demonstrate that the different verdicts are irrational, not merely that they might be irrational. The appellant argues that there is no rational explanation for the acquittals other than that the jury did not accept that the complainant was a credible witness. It is submitted that there was no difference in the quality or cogency of the evidence given by the complainant upon count 5 in comparison with her evidence upon the other counts, so that it was not open for the jury to accept her evidence on count 5; the jury’s doubts about counts 3, 4 and 6, must logically have impacted upon the jury’s assessment of the credibility of the complainant’s evidence upon count 5.
[3]MacKenzie v The Queen (1996) 190 CLR 348 at 367.
In MFA v The Queen[4] Gleeson CJ, Hayne J and Callinan J observed that the significance of not guilty verdicts on some counts in an indictment must be considered in light of the facts and circumstances of the particular case. They referred to conventional directions to juries, including directions requiring juries to give separate consideration to each count and directions about the onus of proof lying upon the prosecution, and observed that a verdict of guilty does not necessarily imply that a complainant’s evidence was disbelieved, but might reflect merely the adoption by the jury of a cautious approach to the discharge of its function. Considerations of that kind, rather than an adverse conclusion about the complainant’s credibility, are capable of explaining the acquittals in this case.
[4](2002) 213 CLR 606 at 617 – 618 [34] – [35].
Throughout defence counsel’s address he challenged both the credibility and the reliability of the complainant’s evidence. Defence counsel concluded his address with the submission that if the jury was left with evidence which they could not accept beyond reasonable doubt the prosecution case must fail and the verdicts must be not guilty. The trial judge directed the jury that “if you have a reasonable doubt concerning the truthfulness or reliability of the complainant’s evidence … in relation to any one of the charges, whether by reference to her demeanour or for any other reason, that must be taken into account when assessing her truthfulness and reliability generally”. The jury asked for a redirection to give further guidance about what was reasonable doubt and what was unreasonable doubt. The directions given by the trial judge in response included directions that “proved beyond reasonable doubt is the highest standard of proof known to the law”.
The trial judge also gave the jury directions requiring it to consider each count in the indictment separately. The trial judge directed the jury to take into account any reasonable doubt the jury held about the truthfulness or reliability of the complainant’s evidence in relation to any one of the charges when assessing her truthfulness and reliability generally. The trial judge directed the jury that, “a situation may arise where, say, in relation to a particular charge, you get to the point where you are inclined to think that she is right, but you’re not satisfied beyond reasonable doubt. If that occurs, of course, you find him not guilty of that charge. That does not mean you cannot find him guilty of the other charges, but you have to consider why you had that reasonable doubt about that part of her evidence and consider whether it affects the way you assessed the rest of her evidence, that is, whether your doubt about that aspect of her evidence causes you to have a reasonable doubt about her evidence in relation to any one of the other charges.”
In relation to count 3, the trial judge directed the jury that they must be satisfied beyond reasonable doubt that the assault was not excused by law and the trial judge explained that an accident was excused by law. As an example of an accident excused by law the trial judge referred to a case in which a person was standing on a bus which braked suddenly so that the person came into contact with another person. Whilst the complainant’s evidence clearly conveyed that the appellant deliberately touched her vagina in the way she described, there was a basis in the evidence for the trial judge’s direction about accident. The jury might have rejected Mr K’s evidence so far as it otherwise might have corroborated the complainant’s evidence and proceeded upon the footing that proof that the touching was not accidental depended entirely upon the complainant’s evidence. The jury might then have been concerned about the absence of any corroborative evidence that the appellant’s touching of the complainant’s vagina was deliberate in circumstances in which there were seven people in the small spa, all of those people (including the complainant) other than Mr K had been consuming alcohol, all of them had consumed a drug, and the evidence was capable of being understood as conveying that at times the complainant and others in the spa were moving about and coming into contact with each other.
The jury could have regarded the complainant’s evidence of the apparent deliberateness of the touching as being honestly given whilst nonetheless being concerned about the inconsistencies, emphasised by defence counsel in his address to the jury, about the way in which the appellant was said to have moved her togs aside when touching her vagina. When addressing the jury defence counsel also adverted to the fact that the complainant had not referred to the event in the spa in the text messages she had sent to Mr K.
In these circumstances, the acquittal on count 3 is explicable by the jury adopting a cautious approach to the trial judge’s directions explaining that the prosecution was obliged to prove each element of the offence, and to exclude accident, beyond reasonable doubt.
The acquittals on counts 4 and 6 are explicable by the jury taking the same cautious approach to the onus of proof upon the Crown in relation to the element of penetration in each count. Accepting that the complainant gave honest evidence about her perceptions, which included clear evidence of penetration (particularly in relation to count 4), a possible doubt about the reliability of that evidence might have been engendered by conclusions of the jury concerning the extent of the complainant’s intoxication and sleepiness, the shock which resulted in her becoming frozen and fearful, and the absence of any DNA result from a swab taken inside the complainant’s vagina. As to the latter point, defence counsel reminded the jury about the absence of any DNA evidence of that kind and the trial judge referred to that point when summing up.
In summary, an explanation for the acquittals is that, adopting a cautious approach to the onus upon the prosecution to prove guilt beyond reasonable doubt, the jury were not prepared to conclude that the complainant’s account about the apparent deliberateness of the appellant’s touching charged in count 3, or her account about penetration in relation to counts 4 and 6, whilst honest, was of itself sufficiently compelling to justify a guilty verdict.
I conclude that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of count 5 and that the verdicts of acquittal on counts 3, 4 and 6 do not justify a conclusion that the guilty verdict on count 5 was unreasonable, unsafe, or unsatisfactory.
I would order that the appeal be dismissed.
MULLINS JA: I agree with Fraser JA.
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