R v Mosegaard

Case [2005] NSWCCA 361

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      Regina v Mosegaard [2005]  NSWCCA 361

FILE NUMBER(S):
2005/865

HEARING DATE(S):               6 September 2005

JUDGMENT DATE: 27/10/2005

PARTIES:
The Crown
Jens Grandt Mosegaard (Appl)

JUDGMENT OF:       McClellan CJ at CL Grove J Smart AJ   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          03/11/0882

LOWER COURT JUDICIAL OFFICER:     Hock DCJ

COUNSEL:
J Bennett SC (Crown)
M Ierace SC (Appl)

SOLICITORS:
Solicitor for Public Prosecutions (Crown)
Legal Aid Commission (Appl)

CATCHWORDS:
CRIMINAL LAW
appeal against conviction and sentence
sexual intercourse without consent and maliciously inflict actual bodily harm
unreasonable verdict
exclusion of evidence
miscarriage of justice

LEGISLATION CITED:
Crimes Act 1900
Criminal Procedure Act 1986
Criminal Appeal Act 1912

DECISION:
By majority  1. Appeal against conviction dismissed
2. Grant leave to appeal against sentence but dismiss the appeal  Smart AJ (dissenting)  1. Allow the appeal on counts 2 and 3 and order a new trial

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2005/865

McCLELLAN CJ at CL
GROVE J
SMART AJ

THURSDAY 27 OCTOBER 2005

REGINA  v  Jens Grandt MOSEGAARD

Judgment

  1. McCLELLAN CJ at CL:  The appellant was indicted upon three counts as follows:

    “First Count:

    On 8 March 2003 at Newtown in the State of New South Wales, did have sexual intercourse with (“AG”) without her consent, knowing that she was not consenting to the sexual intercourse, and at the time of the commission of the offence, did maliciously inflict actual bodily harm on (“AG”). (s 61J(1) Crimes Act 1900)

    Second Count:

    On 8 March 2003 at Newtown in the State of New South Wales, did have sexual intercourse with (“AG”) without her consent, knowing that she was not consenting to the sexual intercourse, and immediately after the time of the commission of the offence, did maliciously inflict actual bodily harm on (“AG”). (s 61J(1) Crimes Act 1900)

    Third Count:

    On 8 March 2003 at Newtown in the State of New South Wales, did have sexual intercourse with (“AG”) without her consent, knowing that she was not consenting to the sexual intercourse, and immediately before the time of the commission of the offence, did maliciously inflict actual bodily harm on (“AG”).” (s 61J(1) Crimes Act 1900)

  2. Toward the end of the trial, and before commencing summing-up to the jury, the trial judge directed that the circumstance of aggravation alleged by the Crown in the third count was not available at law, whereupon that charge was amended to the following.

    “Amended Third Count:

    On 8 March 2003 at Newtown in the State of New South Wales, did have sexual intercourse with (“AG”) without her consent, knowing that she was not consenting to the sexual intercourse.” (s 61I of the Crimes Act 1900)

  3. The appellant was acquitted of count one but convicted of counts two and three. In respect of the amended third count in the indictment he was sentenced to a non-parole period of 7 years and a total term of 9 years and 4 months, both taken to have been commenced…

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Details
AGLC
R v Mosegaard [2005] NSWCCA 361
Case
[2005] NSWCCA 361
Decision Date

CaseChat Overview and Summary

The case of R v Mosegaard involved the appellant appealing against his convictions and sentences for sexual intercourse without consent and maliciously inflicting actual bodily harm. The matter was heard in the Court of Appeal. The central issue before the court was whether the verdicts of guilty on counts 2 and 3 were unreasonable, given the acquittal on the first count. The appellant argued that the jury's verdicts were unreasonable due to the acquittal on the first count, the absence of evidence regarding the complainant's mental state and drug and alcohol usage, and the form of the Markuleski direction given to the jury.

The court considered the evidence presented, including the complainant's account of events, the evidence of other witnesses, and the physical evidence of injuries. The court found that the jury's verdicts were supported by a strong body of evidence, particularly the reports of a woman crying and screaming and the evidence of loud music, which were consistent with the complainant's account. The court held that the direction given to the jury regarding the assessment of the complainant's credibility was appropriate and that the jury's verdicts were reasonable in light of the evidence presented. The court dismissed the appeal against conviction and sentence.

The court did not find it necessary to exclude any evidence, as the evidence presented was deemed sufficient to support the jury's verdicts. The court concluded that there was no miscarriage of justice and that the verdicts on counts 2 and 3 were reasonable. The appeal was therefore dismissed in its entirety.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

She reports hearing deafening loud music around 12 or 12.30 for about 20 minutes. After the music stopped she heard footsteps coming up the stairs followed by Neils asking the appellant if he could borrow his phone charger out of his room. The appellant replied “Fuck off, fuck right off, I mean it Neils, fuck off.” She heard further murmured voices and then got up, made her lunch and left the premises.Corroborative evidence – other witnesses The complainant’s evidence was only challenged by that of the appellant, and apart from Lisa Phelan was supported from various sources. A summary of relevant matters includes:(1)The evidence given by the complainant’s friend Kim Szymanowicz and her boyfriend Stephen Emmerson as to complaints made by the complainant and her appearance at that time.(2)The evidence of Dr. Natasha Andreadis as to the injuries which she observed to the complainant’s breast.(3)The evidence of the taxi driver, Gavin Scott, who drove the complainant from the house to Ms Szymanowicz as to her appearance and distress.(4)The evidence of Peter Johnson, who was on the opposite side of the street from the subject premises about midday and heard the muffled screams of a female person coming from the direction of the premises;(5)The evidence of Sally Ann Auld, who was also on the opposite side of the street about midday and heard high pitched screaming from the vicinity of the upstairs;(6)The evidence of Gregory Brian Kitchener who was on the opposite side of the street about midday and heard faint cries for help from the vicinity of the house; (7)The evidence of Mark Abernethy who was in the vicinity of the house about midday and heard moaning and groaning which he assumed was female, coming from upstairs. Although he initially thought it was someone having sex, he came to the view that it was the sound of someone in pain;(8)The evidence of Christine Franks, who lived next door to the subject premises, and when at the front of the house about 12:30pm heard emanating from the front of the subject premises a girl crying, very distressed, and saying, things like, “Oh no, how could you, how could you do that?”(9)The evidence of Florence Scott, read from her statement and cross-examination at the committal proceedings, describing screaming she heard from upstairs of the subject premises about 12:00 midday or 12:30pm.(10)The evidence of Andrew Farrington as to the supply of the capsule to the complainant, and the comparable effects he suffered when he took the one he retained.(11)The evidence of Jennifer Bettina Burger, confirming the presence of DNA with the same profile as that of the Appellant, recovered from semen on the pill bottle used by the complainant to capture fluids from her vagina after the encounter.The appeal Although originally raising only two grounds of appeal against conviction the appellant now seeks to rely on an additional ground. I shall consider each ground in turn.Ground One: the verdicts of guilty in relation to counts 2 and 3 are unreasonable in view of the acquittal on the first count

Decision

Reasons for decision

CLELLAN CJ
In these circumstances it is submitted that the form of Markuleski direction given to the jury, the absence of evidence as to the nature of the relevance and actual impact, if any, of a complainant’s mental state and her drug and alcohol usage on her behaviour at the time and her reliability as a witness recalling these events, renders the verdicts on count 2 and 3 unreasonable.Conclusion on first ground of appeal To my mind, there are a number of matters which could rationally explain the jury’s verdicts in the present case. It is clear that the complainant’s account of the events is not entirely accurate and her recollection of the time at which events occurred and the sequence of those events may be confused. Given that on any version the relevant events occurred over a number of hours this is not surprising. The complainant’s account of the events relevant to the first count were not supported by corroborating evidence. Furthermore, the evidence of Neils Mosegaard and more particularly Lisa Phelan suggests that the initial sexual encounter between the complainant and the appellant could have been consensual. The overhearing of a conversation in which the complainant suggested that the appellant reminded her of a former boyfriend and the giggling and mimic conversation justified a doubt as to whether or not the initial sexual activity occurred without the complainant’s consent. However, even if the jury had doubts about the complainant’s evidence on that aspect of the matter the evidence which supports the jury’s findings in relation to the other two matters is of quite a different character and, to my mind, amounted to a strong Crown case. Of particular significance are the reports of a woman crying and screaming and the evidence of deafening loud music at a time which is consistent with the complainant’s account of the loud music being used to mask the activity inside the room. This conclusion is also supported by the evidence of the complainant’s distress and complaint. The Crown also submits that the evidence of bruising and facial injury to the complainant together with the degrading character of the acts committed, including the urination by the appellant in the complainant’s face, are relevant to explain the jury’s verdict. To my mind, this evidence is less convincing. The appellant says the complainant consented to sexual activity involving acts of violence and degradation. In this event the fact that they occurred may not be corroborative of the complainant’s allegations. I am satisfied that the direction which her Honour gave with respect to the assessment of the complainant’s credibility was appropriate. Her Honour reminded the jury of the significance of the complainant’s evidence and stressed that if before the jury could reach a different verdict in relation to any count “there must be a logical or rational basis for that decision.” In the circumstances it did not follow that there was no relevant difference between the complainant’s evidence on the first count and her evidence on the other matters. In any event her Honour raised for the jury’s consideration the possibility that they might conclude that there was only one issue – “the honesty of the complainant” – which together with her directions as to the impact of doubt on one count and their consideration of the other counts was, in my opinion, the appropriate direction.

Ratio Decidendi

Legal Principle Established

Established by: CLELLAN CJ

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