R v JJ
[2014] ACTCA 23
•29 May 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Joyce v The Queen |
Citation: | [2014] ACTCA 23 |
Hearing Date: | 8 August 2014 |
DecisionDate: | 29 May 2015 |
Before: | Murrell CJ, Refshauge and Ross JJ |
Decision: | The appeal is dismissed. |
Category: | Principal Judgment |
Catchwords: | APPEAL - indictment containing multiple counts with respect to one incident - verdicts of guilty on three counts and acquittals on the remaining counts - whether verdicts inconsistent - verdicts explicable by reference to medical and complaint evidence - verdicts not inconsistent. |
Legislation Cited: | Supreme Court Act 1933 (ACT) s 37O(2) |
Cases Cited: | Mackenzie v The Queen (1996) 190 CLR 348 MFA v The Queen (2002) 213 CLR 606 R v Stone (Unreported, Court of Criminal Appeal, Devlin J, 13 December 1954) |
Texts Cited: | James Richardson QC (ed), Archbold: Criminal Pleading, Evidence and Practice (Sweet & Maxwell Ltd, 1995) |
Parties: | Geoffrey William Joyce (Appellant) The Queen (Respondent) |
Representation: | Counsel Mr R Livingston (Appellant) Ms M Jones (Respondent) |
| Solicitors Craig Lynch & Associates (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | ACTCA 6 of 2014 |
Decision under appeal: | Court: Supreme Court of the ACT Before: Penfold J Date of Decisions: 16 December 2013 and 5 February 2014 Case Title: R v Geoffrey William Joyce Court File Number: SCC 206 of 2012 |
THE COURT:
The appellant was tried in the Supreme Court on 10, 11, 12 and 13 December 2013 on the following six counts:
(a)Sexual intercourse without consent (count 1).
(b)Attempted sexual intercourse without consent (count 2).
(c)Act of indecency (count 3).
(d)Sexual intercourse without consent (count 4).
(e)Inflict actual bodily harm (count 5).
(f)Sexual intercourse without consent (count 6).
On 16 December 2013 a jury found the appellant guilty on counts 1, 5 and 6 and not guilty on counts 2, 3 and 4. Convictions were recorded on the three counts and the appellant was sentenced by the primary judge on 5 February 2014.
The appellant appeals the verdicts of guilty and orders of conviction. The ground of appeal is that the verdict of not guilty of counts 2, 3 and 4 are inconsistent with the verdicts on counts 1, 5 and 6 and are therefore unsafe and unsatisfactory.
Background
The undisputed facts relating to the incident can be shortly stated. At about 8pm on Friday, 16 March 2012, the complainant left her hotel room, met up with two friends, and went to a bar and later to a nightclub. After the complainant left the nightclub she became disoriented, became upset and sat down. She had her iPhone with her. The appellant approached her and asked if she had an iPhone charger. She said that she did and that she was going back to her hotel. The appellant told her that he had become separated from his friends and asked to come back to her hotel to use her mobile phone charger. She agreed and they walked back to the Mantra Hotel arriving at 3:04am. The appellant can be seen on CCTV leaving the hotel at 3:37am.
At trial the complainant and the appellant gave very different accounts of what happened inside the hotel room.
The appellant’s evidence is that he went into the complainant’s room and plugged his iPhone into the charger. He then sat down on the bed and the complainant stated that she could think of something to do whilst the phone was charging. He observed that she had taken off her pants and lay down on the bed. The appellant gave evidence that this made him uncomfortable. As he waited for his phone to charge the complainant fell asleep on the bed. Once his phone was charged he left the hotel room.
The complainant gave evidence that, once inside the hotel room, the appellant pushed her onto the bed and removed his clothing. The appellant then forcefully removed the complainant’s clothing, pinned her down and inserted his penis into her vagina (this was count 1). The appellant then sat on the complainant’s chest and tried to insert his penis into her closed mouth (this act was count 2 and in the alternative count 3). The complainant tried to push the appellant away, but he slid down her body, biting her nipples, then forced his head between her thighs and licked her vagina (count 4). The complainant gave evidence that she pushed the appellant’s head away and that he then became angry. He climbed back on her body and put his penis in her vagina. He also put his hands around her throat causing her difficulty in breathing and slapped her across the face (counts 5 and 6). The complainant’s evidence is that the last thing she recalled was the appellant penetrating her, with his hand around her throat.
The complainant says she woke at about 5am feeling ill, had a shower, changed her clothes and went back to bed.
The complainant spoke to a friend at around 6:30am on the morning of the incident. The complainant’s friend gave evidence that the complainant told her that “some guy fucked me and I didn’t want him to, so he slapped me and I cried and he slapped me again”. The friend also said that the complainant sounded like she was in shock. After speaking to the complainant, the friend called the police and reported the incident.
10. Dr Catherine Sansum examined the complainant between 3pm and 4pm on 17 March 2012 and observed the following injuries:
(a)Her left cheek was swollen and felt hot to the touch when compared to the right cheek.
(b)There was an increase in the depth of the left nasal labial fold, the crease in the skin between the nose and the lip, which indicated that it was swollen.
(c)There were five superficial abrasions or scratches on the front of her neck adjacent to the Adam’s apple, all which were of about 2-3mm in diameter and the complainant reported tenderness to the strap muscles on both sides of her neck.
(d)An examination of her breasts revealed a 1cm linear abrasion or scratch on the areola and a 4cm linear abrasion or scratch on the lower aspect of the left breast and the breasts were diffusely tender.
(e)Genital examination showed marked redness on the labia majora and minora as well as the vaginal opening. It was a lot redder than would normally be found when doing those examinations. It was difficult to examine the genital area in greater detail because the complainant was too sore. A low vaginal swab was taken however a high vaginal swab was not obtained as insertion of the swab was too painful for the complainant.
Dr Sansum also gave evidence on what the complainant had disclosed to her about what had happened, as follows:
[Crown:]Now, when you asked [the complainant] what had happened on this occasion, what did she disclose to you? What did she tell you?
[Dr Sansum:] Would you like me to run through verbatim what I’ve written in my report?
[Crown:] Yes.
[Dr Sansum:] As I said, I started opening saying, “Tell me what’s happened,” and she replied to me that approximately 4 am on 17 March 2012 she had been out with friends in Civic, her friends had gone home, but she decided to stay with some other people that she knew. She was then walking home to the Mantra on Northbourne and she was approached by a man who called himself Geoff and she believed he was from Darwin. Geoff asked her if he [sic] was okay. He sat with her near a park. He told her his phone had run out of battery, he asked to use her phone charger at the hotel and they walked back to the Mantra Hotel together. They went to the bedroom for the charger, he pushed her on the bed, he had taken his pants off. “He pulled my jeans and undies off,” she attempted to push him off, she said “No, No”, “He kept slapping me on the face and telling me to stop crying. He penetrated me,” and that was then clarified as a penile vaginal penetration. “I pushed him away.” He put his knees over her arms and “rubbed his penis on my mouth. He pinched my nipples. He penetrated me again”. And this was again clarified as penile-vaginal penetration. “The whole time I was crying and telling him to stop,” [sic] he slapped me lots, when he was on top of me he grabbed my throat and choked me,” and then she didn’t recall leaving the apartment.
[Crown:]Now, once she initially gave you that information did you make some more specific inquiries and get some further information from her?
[Dr Sansum:] Yes, there’s then after that section there’s a few pages of yes/no questions which we proceeded to.
[Crown:] And what were the answers that you were given?
[Dr Sansum:] Well, based on those questions, she then told me or she reported to me that she’d been slapped on the left side of her face several times, she’d been grabbed by his left-hand around the throat, he had restrained her with his knees over her arms, he had bitten both her nipples and then she - written in quotations, “He rubbed his penis across my mouth. I wouldn’t let it go in.”
Unsafe and Unsatisfactory
12. The sole ground of appeal is that the verdict is unsafe and unsatisfactory on account of the inconsistent verdicts. The appellant contends that the verdicts of guilty in respect of counts 1, 5 and 6 and not guilty on counts 2, 3 and 4 are factually inconsistent (as opposed to a case of legal or technical inconsistency). The appellant submits that in the circumstances of this trial the disparity in the verdicts is only reasonably explained by the jury being unable to reach a unanimous verdict on all counts and making an impermissible compromise. It is on that basis that it is submitted that the guilty verdicts in respect of counts 1, 5 and 6 are unsafe and unsatisfactory.
13. The assertion that the three verdicts of guilty were unsafe and unsatisfactory engages the condition stated in s 37O(2)(a)(i) of the Supreme Court Act 1933 (ACT) that:
(2) The Court of Appeal on an appeal against conviction must—
(a) allow the appeal if it considers that—
(i) the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence
14. The three verdicts of guilty are said to be unreasonable in the present case because they were inconsistent with the verdicts of not guilty on the three remaining counts.
15. The obligation to establish inconsistency of verdicts rests on the appellant: R v Hunt [1968] 2 QB 433 at 438; R v Kirby (1972) 56 Cr App R 758 and Mackenzie v The Queen (1996) 190 CLR 348. Since the ultimate question concerns the reasonableness of the jury’s decision, the significance of verdicts of not guilty on some counts on an indictment must necessarily be considered in the context of the facts and circumstances of the particular case: Mackenzie; MFA v The Queen (2002) 213 CLR 606 at [34]. In Mackenzie the High Court stated that in cases such as this, the test is one of “logic and reasonableness” and cited, with approval, the judgment of Devlin J in R v Stone (Unreported, Court of Criminal Appeal, Devlin J, 13 December 1954) where his Honour said:
He [the appellant] must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand."
16. See also Hunt at 438; R v Durante [1972] 1 WLR 1612 at 1617 and James Richardson QC (ed), Archbold: Criminal Pleading, Evidence and Practice (Sweet & Maxwell Ltd, 1995) vol 1 [4-457].
17. The gravamen of the appellant’s case is set out at [23] of his written submissions:
When one has regard to the one episode nature of this series of allegations, the appellant submits that if jurors had doubts about significant parts of the alleged sexual assault perpetrated upon her as the verdicts of not guilty suggest, that those doubts should have impacted on the credibility of the complainant in respect of the rest of her account of the alleged sexual assault. In such circumstances the corroborative evidence was not of such a character as to enable the jury to be satisfied to the requisite extent of the counts that were the subject of the guilty verdicts. In the appellant’s submission, in these circumstances the Court would not conclude that the guilty verdicts sufficiently explain the different verdicts returned by the jury.
18. As we have mentioned, the jury returned verdicts of guilty in respect to counts 1, 5 and 6 and verdicts of not guilty in respect to counts 2, 3 and 4. In part, the appellant’s submission seems predicated on the proposition that where multiple offences are alleged involving one complaint, a verdict of not guilty on some counts necessarily reflects a view that the complainant was untruthful or unreliable and that an appellate court should consider the reasonableness of guilty verdicts on the basis that the complainant is a person of damaged credibility. Such a proposition was rejected as erroneous in MFA at [35] per Gleeson CJ, Hayne and Callinan JJ. The issue for determination in this case is whether the differences in the evidence in relation to each count provides a rational explanation for the different verdicts. The appellant submits that this case falls into what the plurality in Mackenzie at 368 per Gaudron, Gummow and Kirby JJ described as the “residue of cases” in which different verdicts represent “an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury’s duty.”
19. The appellant concedes that the medical evidence set out (at [10] above) provides some independent support for the complainant’s account. However, the appellant submits that the medical evidence does not explain the different verdicts and that, in her charge to the jury, the primary judge correctly described it as having only “minor significance”.
20. It is important to note that in her charge to the jury, the primary judge referred to the importance of considering each charge, and the evidence in relation to it, separately. In that context the primary judge mentioned that the medical evidence could be used as corroboration. Those aspects of her Honour’s charge are as follows:
You simply have to ask yourselves, on the whole of the evidence in respect of each of the charges before you but as I’ve said separately, charge by charge: ‘Am I satisfied beyond what I consider to be a reasonable doubt that the accused is guilty of this charge?’ ...
If ... you generally accept [the complainant’s] evidence, then you will need to consider whether in relation to each of the charged offences - separately you’ll need to go through this process - whether her evidence of the particular part of the incident and any other relevant evidence such as medical evidence satisfies you beyond reasonable doubt that the particular offence was committed, and I remind you again as I said earlier, each charge will require separate consideration. You’ll need to reach a separate verdict on each charge separately and there’s no need for all the verdicts to be the same.
[emphasis added]
21. We now turn to consider the differences in the medical and complaint evidence in relation to each count on the indictment.
22. Counts 1 and 6 involved penile-vaginal intercourse. The evidence given by Dr Sansum was that there was marked redness on the labia majora and minora, as well as the vaginal opening and that a high vaginal swab could not be obtained from the complainant as it was too painful. This evidence corroborates the fact that penile-vaginal intercourse occurred. Further, the complaint evidence given by the complainant’s friend and Dr Sansum is consistent with the medical evidence. The appellant conceded that the complaint to the complainant’s friend, while expressed in common parlance, was a complaint of penile-vaginal penetration without consent.
23. Count 5 related to the appellant slapping the complainant across the face and choking her. The evidence given by Dr Sansum was that her left cheek was swollen and felt hot to the touch when compared to the right cheek. There was an increase in the depth of the left nasal labial fold, the crease in the skin between the nose and the lip, which indicated that it was swollen. The strap muscles on the neck were tender and there were five superficial abrasions or scratches on the neck. This again corroborates the complainant’s version of events. The complaint evidence also speaks of the complainant being slapped by the appellant.
24. We now turn to counts 2, 3 and 4 which were the subject of not guilty verdicts.
25. Counts 2 and 3 were alternate counts relating to the allegation that the appellant rubbed his penis across the complainant’s mouth. Count 3 was charged as an alternative to count 2. The appellant conceded, properly so, that the verdict of not guilty in relation to count 2 was explicable on the basis that the jury was not satisfied that the appellant was attempting to engage in oral sex with the complainant in committing those acts. However, the appellant submits that even if the jury were not so satisfied as to the appellant’s intent, it is difficult to see how a not guilty verdict could have been returned in relation to count 3.
26. In our view, the verdict of not guilty in relation to count 3 is explained by the absence of any physical evidence, either by way of injury or DNA, to corroborate this count.
27. Count 4 was also not corroborated by any physical evidence, either by way of injury or saliva. We also note that the complaint evidence - to the complainant’s friend and Dr Sansum - makes no mention of the incident constituting count 4. This is the same situation as in R v ACK [2000] NSWCCA 180 at [51] - [53] and R v Asplin [1999] WASCA 148 at [26] and [36] in which no relevant inconsistency arose in circumstances where the original complaint did not include reference to the incident on which the jury acquitted.
28. The absence of corroborating DNA evidence to support counts 2, 3 and 4 is explicable in the circumstances. The complainant gave evidence that after she woke up and before the assault was reported, she went to the toilet and then showered in lukewarm water for about 5 minutes. The complainant told Dr Sansum that “she’d had a quick rinse with soap”.
29. Ms Moja Keglovic, a senior forensic biologist employed by the Australian Federal Police, gave evidence in relation to the DNA evidence. Ms Keglovic’s area of specialty and expertise is DNA analysis and interpretation. Ms Keglovic gave evidence that DNA material may be removed by showering and that the use of soap would also contribute to the loss of DNA.
30. In the charge to the jury the primary judge said:
Given the evidence you’ve heard about [the complainant] having a shower, including washing with soap, you may think that the absence of any relevant DNA in the swabs taken from her external genital area is also relatively insignificant.
31. No exception was taken to her Honour’s charge.
32. Given the medical and complaint evidence referred to, we have concluded that the jury simply followed the primary judge’s instructions (see [20] above) to assess the complainant’s evidence and any other relevant evidence, such as medical evidence, in respect of each charge separately and that there was no need for all of the verdicts to be the same. As observed in MFA at [34] per Gleeson CJ, Hayne and Callinan JJ, in the case of sexual offences, of which there may be no objective evidence, it is not unreasonable for some, or all, of the members of a jury to require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. It does not necessarily involve a rejection of the complainant's evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. Their Honours made this observation in the context of jurisdictions that require unanimous verdicts. The ACT is such a jurisdiction. Their Honours went on to say at [34]:
The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility.
33. The differences between the evidence in relation to each count provide a rational explanation for the different verdicts. Asserted inconsistency was the sole basis on which it was contended that the verdicts in respect of counts 1, 5 and 6 were unsafe and unsatisfactory. As the verdicts are not inconsistent in the relevant sense, it follows that the appeal must fail.
34. We would order that the appeal be dismissed.
| I certify that the preceding thirty-four [34] numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: Date: 29 May 2015 |
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