R v Moss

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MOSS
[2011] SASCFC 93
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Anderson and The Honourable Justice Peek)
26 August 2011
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - ALTERNATIVE VERDICTS
EVIDENCE - WITNESSES - CROSS-EXAMINATION - AS TO CREDIT - ON FORMER STATEMENTS - TENDERING OR CALLING EVIDENCE AS TO FORMER INCONSISTENT STATEMENT
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - EFFECT OF MISDIRECTION OR NON-DIRECTION
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - INCONSISTENT VERDICTS
Appeal against conviction - the appellant was found guilty by a jury on charges of aggravated assault (count 1), attempted rape (count 3), indecent assault (count 4) - the appellant was found not guilty of rape, but guilty of attempted rape - the appellant was found not guilty on a charge of assault (count 2).
The complainant was a prostitute that the appellant had hired for her services - the complainant told the appellant that it was a condition of her services that he wear a condom - the prosecution case was that after the appellant had consensual sexual intercourse with the complainant using a condom, the appellant threatened the complainant with a pistol (count 1) and assaulted her (count 2), intending to intimidate and frighten the complainant so that she would have sex with the appellant without requiring him to use condom - the appellant had sexual intercourse with the complainant, without using a condom, overcoming the complainant's resistance and she being frightened by the events comprising count 1 and count 2 - the act of sexual intercourse without a condom was count 3 - as the complainant was waiting to be picked up by her driver, the appellant masturbated himself and touched the complainant on the buttocks (count 4).
The issues were: (1) whether the trial Judge erred in leaving the alternative offence of attempted rape to the jury; (2) whether the trial Judge refusing defence counsel permission to cross-examine a prosecution witness on a particular topic meant that the verdicts on count 3 and count 4 could not stand; (3) whether the trial Judge erred in directing the jury as to the elements of the offence the subject of count 4 and, therefore, whether the guilty verdict on count 4 was unreasonable; and (4) whether the guilty verdict on count 1 was inconsistent with the not guilty verdicts on count 2 and count 3 so as to make the verdict of guilty on count 1 unreasonable.
Held (Doyle CJ with Anderson and Peek JJ concurring): (1) the alternative verdict of attempted rape was not reasonably open on the evidence; (2) the trial Judge erred in refusing to permit defence counsel to cross-examine the prosecution witness - the intended cross-examination was to question the prosecution witness as to a prior inconsistent statement - the cross-examination would have been relevant to the prosecution witness' reliability; (3) the trial Judge misdirected the jury on the issue of whether the complainant had withdrawn her initial consent to sexual activity, which was crucial to a verdict of guilty on count 4 - there was a risk of a miscarriage of justice; (4) the verdict of guilty on count 1 was unreasonable.
Appeal allowed - convictions set aside - directed verdict of acquittal on counts 1, 3 and 4.
Benbolt v The Queen (1993) 60 SASR 7; R v Perdikoyiannis [2003] SASC 310, (2003) 86 SASR 262; R v Nguyen [2010] HCA 38, (2010) 85 ALJR 8; MFA v The Queen [2002] HCA 53, (2002) 213 CLR 606, considered.

R v MOSS
[2011] SASCFC 93
Court of Criminal Appeal: Doyle CJ, Anderson and Peek JJ

DOYLE CJ: Mr Moss was found guilty by a jury on charges of aggravated assault (count 1), attempted rape (count 3) (but found not guilty of rape), and indecent assault (count 4). He was found not guilty on a charge of assault (count 2).
The complainant, Ms F, was a prostitute for whose services Mr Moss had paid. The prosecution case was that after Mr Moss had sexual intercourse with Ms F, Mr Moss using a condom, Mr Moss threatened Ms F with a pistol (count 1) and assaulted her (count 2), intending to intimidate and frighten Ms F, so that she would allow him to have intercourse with her without using a condom. On the prosecution case Ms F had several times said to Mr Moss that she would not have intercourse unless Mr Moss used a condom.
On the prosecution case Mr Moss had sexual intercourse, without using a condom, overcoming Ms F’s resistance, and she being frightened by the events comprising count 1 and count 2. The act of intercourse without using a condom was count 3, on which the jury found Mr Moss not guilty, but guilty of attempted rape. Later in the course of events, after Ms F had had a shower, she said that Mr Moss masturbated himself and touched her on the buttocks. This was count 4.
Central issues in the case were whether Mr Moss threatened Ms F as alleged, or assaulted her as alleged, with a view to intimidating her into submitting to intercourse without him using a condom. Another central issue was whether voluntary participation and sexual activity on her part came to an end with the events the subject of count 1 and count 2, whether she withdrew consent to sexual activity at that stage, and whether Mr Moss was aware that Ms F was not consenting to sexual intercourse without the use of a condom, or had withdrawn consent to sexual intercourse without a condom, and whether Mr Moss knew or was recklessly indifferent to the fact that Ms F did not consent or had withdrawn her consent.
The following issues were argued on appeal. First, whether the Judge should have left the alternative offence of attempted rape to the jury. Second, whether an error by the Judge in refusing defence counsel permission to examine a prosecution witness on a particular topic meant that in any event the verdicts on count 3 and count 4 could not stand. Third, whether the not guilty verdicts on count 2 and count 3 were inconsistent with the guilty verdicts on count 1 and count 4, leading to a conclusion that the verdicts on these counts were unreasonable and should be set aside. Fourth, whether, in any event, the verdicts on count 1 and count 4 were unreasonable having regard to certain criticisms that could be made of the prosecution case and, in relation to count 4, having regard to the manner in which the Judge dealt with a question by the jury.
Summary of the evidence by Ms F and by Mr Moss
This summary is drawn from the Judge’s summing up.
I begin with the evidence relied on by the prosecutor.
Mr Moss rang the premises where Ms F worked, and arranged for her to come to his unit at about 2.45 am one morning. She was driven to the unit. There was no attempt by Mr Moss to conceal his identity or address. Mr Moss paid Ms F $250. They showered together and engaged in some foreplay. Mr Moss asked if Ms F would do anything without a condom, and she said that she would not. They then went to the bedroom where, on the bed, there was further sexual foreplay. Again Mr Moss asked if she would do anything without a condom, and again she said no. She did agree to masturbate him. Again he asked if she would do anything without a condom and she said she would not. She then got a condom from her bag and put it on Mr Moss. They had sexual intercourse for a few minutes. Mr Moss then went to another room to change the music that was playing. The room was dark and when he returned he suddenly pointed a gun at Ms F’s face and pulled the trigger. That was the subject of count 1. Ms F was scared. Mr Moss laughed. Then he pulled the trigger to show her that the pistol was not loaded. He put the pistol into her hands, and she held it for a couple of seconds, because she was curious. Then Mr Moss roughly pushed her on to her front on to the bed, put his right arm around her throat and then pulled back on her throat in such a way as to have a choking effect. She had difficulty breathing. That was count 2. She said that by now she was scared, and did not know if it was best to try to leave or to stay. Ms F got up and was kneeling on the bed. Mr Moss pushed her on to her back. At about this time she saw him remove the condom. He held her arms down above her head. Her knees were up, and he was lying between her legs with his groin between her legs. She told him again that she did not have sex without a condom, and he replied that he was just trying to have fun. She was using her legs to prevent him getting any further or any closer, but he kept pushing. This persisted for several minutes and then her legs gave out. She felt his penis go into her vagina. He penetrated a distance of a centimetre or two, and only for a few seconds. That was count 3.
The two of them then went to the bathroom. On the way, she passed through a room where she saw several guns on a coffee table. She said that Mr Moss pointed them out to her. He pushed her into the shower and he sat on a toilet seat masturbating. He watched her.
Then they went to the lounge. He was still masturbating, and she began to get dressed. She had rung the driver, who was waiting downstairs. He asked her to sit next to him on the couch and she did. He got her to bend over on the couch, and he touched her buttocks while he continued to masturbate himself. She told him that she had to go. She said in evidence that he had paid for one hour, and the time was up. The touching on the buttocks was the subject of count 4.
Then Ms F left. She later complained to the receptionist where she worked and, later, to the police.
The complaint that she made to the receptionist, and the statements or complaints that she made to the police officers, were all the subject of close scrutiny at trial. Defence counsel raised suggested inconsistencies between her evidence and statements or complaints that she had made out of court.
I turn to Mr Moss’s evidence. He agreed that he arranged for an “escort” to come to his house, and that when Ms F arrived he paid her $250. He said that all of the guns were replica guns, and that he had an interest in guns. He had had some guests earlier that night, and had shown them the replicas. That was why they were lying around the room in question.
When Ms F arrived they showered together. They went to the bedroom, where he might have pushed her on to the bed, but not forcefully. He was shocked to see one of his replica guns on the bed. One of his guests earlier that night must have left it there. He realised that it might scare Ms F and he immediately picked it up and tried to remove any fears she might have. He told Ms F it was not real. He pulled out the magazine and showed her that it was empty. He denied walking into the bedroom and pointing it at her in the manner described by her. He denied ever pulling the trigger while the gun was pointed in her direction. He thought he put the gun in the washing basket. He went to another room to change the music, and when he returned Ms F was either handling it or it was off the bed. They then engaged in foreplay, which Ms F appeared to enjoy. The only reference to a condom was when Mr Moss asked her to get one because he had no intention of having sexual intercourse without one. They had intercourse using a condom. She then masturbated him without the condom and he ejaculated. He denied putting his arm around her neck and choking her.
They then moved to the lounge, and then Ms F had a shower. Mr Moss went into the bathroom and masturbated on the toilet seat while she did so. They returned to the lounge, and Ms F got dressed. He asked her to sit on the couch while he continued to masturbate. Ms F did so. He agreed that he might have touched her buttocks while he was masturbating himself. In due course he ejaculated and Ms F left.
He asked her for her name and asked her to write down her telephone number, in case he wanted to contact her again. She wrote her name and number (not genuine) on a napkin. It was common ground that that happened.
Some hours later the police arrested him.
In this summary I have not attempted to capture all the details of the evidence. In particular, I have not concerned myself with the suggested inconsistencies between Ms F’s evidence and previous out of court statements.
The decision to leave attempted rape as an alternative verdict (Ground 1)
After the completion of the evidence the prosecutor asked the Judge to leave a charge of attempted rape to the jury as an alternative to the charge of rape. The application was made to the Judge relying on a complaint to a police officer by Ms F, in which she made no reference to intercourse. The prosecutor said that the jury for that reason might not be satisfied beyond reasonable doubt of the fact of penetration. Counsel for Mr Moss objected to that course. The Judge agreed to the submission by the prosecutor, referring to the fact that in her first complaint Ms F had said that Mr Moss had attempted to rape her. She had explained in evidence that she said that because she did not think that what she was complaining about amounted to rape.
On the hearing of the appeal Mr Preston, counsel for the Director of Public Prosecutions (DPP) acknowledged that the reason given by the Judge for his decision was wrong. The evidence of the complaint by Ms F was admissible only to demonstrate consistency on the part of Ms F. It was not led as evidence of the truth of its contents. As well, the witness who gave evidence of the compliant said that Ms F complained that she was “raped” and did not give evidence of a complaint in terms of an attempted rape. In this respect the Judge erred. Nevertheless, Mr Preston submitted that the alternative verdict of attempted rape was open on the evidence, and so was properly left to the jury.
In the prosecutor’s address in relation to attempted rape, the prosecutor did not put to the jury any basis for a finding that Mr Moss was guilty of attempted rape, other than the possibility that they might not be satisfied that there was penetration of Ms F’s vagina. But no reason was identified why the jury might fail to be satisfied beyond reasonable doubt of the fact of penetration.
The duty of a trial judge is to leave to the jury any verdict which is open as a matter of law on the charges laid (that is, any verdict which may be returned as an alternative to the offence charged) provided that there is a reasonable basis in the evidence for that alternative, or provided that the alternative verdict is reasonably open on the evidence: Benbolt v The Queen (1993) 60 SASR 7 at 18-19 King CJ, at 23 Perry J and at 26-27 Duggan J; R v Perdikoyiannis [2003] SASC 310; (2003) 86 SASR 262 at [36]-[48] Doyle CJ, Besanko J and Sulan J agreeing at [62]-[64].
With all respect to the trial Judge, I consider that he erred in leaving the alternative charge of attempted rape. In her evidence Ms F was adamant that penetration had occurred. There is nothing in her evidence to suggest an attempt at intercourse not involving penetration. She did not admit to any uncertainty about the penetration. It was not part of the defence case that Mr Moss had attempted to have sexual intercourse not using a condom, but had been unsuccessful in that attempt. Until the matter was raised by the prosecutor, it had not been part of the prosecution case that the case might be one of attempt only.
I must say that I cannot identify a basis upon which the jury could properly have concluded that Mr Moss was not guilty of rape, but was guilty of attempted rape. Reasoning to that conclusion would involve acceptance of what Ms F said in relation to this count, other than that part of her evidence in which she had said that Mr Moss penetrated her vagina. I cannot identify any basis for drawing that line in the evidence that she gave.
In my opinion the Judge erred. The appeal against the conviction for attempted rape should be allowed. The conviction should be quashed, and a judgment and verdict of acquittal should be entered on this count.
Complaint that the Judge erred in ruling that counsel for Mr Moss could not cross-examine witness as to complaint (Ground 6)
One of the witnesses called by the prosecutor was Ms J, who worked at the premises where Ms F was based. She gave evidence that Ms F returned to the premises in the early hours of the morning in question. She gave evidence of a complaint made by Ms F. Ms J’s evidence was not as clear as it might be. However, she said:
She said she was raped and then he forced her. She said “he raped me, forced me” and she said he held a gun to her.
She denied that it was possible that she made a mistake about the use of the word “raped”. She said also that Ms F said:
He made me have a shower with him and he was trying to have sex with me in the shower without a condom.
As the trial Judge remarked to the jury, the first of these complaints related by Ms J did not fit with Ms F’s evidence. Ms F said that when she first spoke to Ms J she did not understand that what had happened to her amounted to rape and so did not, at that stage, claim to have been raped. The second complaint, as is apparent, did not fit with the evidence of Ms F either.
Counsel for Mr Moss at trial attempted to cross-examine Ms J about what she said to the police when she telephoned them, after Ms F had returned to the premises. The Judge refused to allow that cross-examination, on the basis that what Ms J had told the police was hearsay and inadmissible. In fact, although the point was not stated clearly before the trial Judge, counsel wished to establish inconsistencies between what Ms J told the police Ms F had said, and what Ms J said in court Ms F had said.
Mr Preston conceded that the Judge erred. That concession is appropriate. It was permissible to cross-examine Ms J to show that she had, at a time very close to the complaints by Ms F, given a different version of those complaints to police. That cross-examination would have been relevant to her reliability.
I will consider later the significance of this error.
Complaint that the verdict on count 4 is unreasonable (Ground 5); complaint of error by Judge in answering jury question relating to count 4 (Ground 7)
The incident the subject of count 4 occurred shortly before Ms F left Mr Moss’s apartment. Ms F said that Mr Moss was “playing with my butt” while he masturbated himself, while sitting on a couch. At the time Ms F was also on the couch, on her knees and, I gather, at Mr Moss’s side. She took up that position at his request. When asked if she agreed to him touching her in this way she said:
At that point in time I pretty much would have agreed to anything to make sure that I got out of there. I didn’t know what he could have done to me if I didn’t agree to something.
Later in cross-examination, counsel put to her that this activity was part of the arrangement for paid sexual activity. Ms F said:
A No. His time was up and I had made that perfectly clear.
Q So was that your objection to doing that activity; because his time was up.
AOnce his time was up, he can pay for more time if he wishes, but he had not paid for more time, so no.
QThat was the main problem; he hadn’t paid for more time and he was trying to get something more for his money.
AYes.
The conduct the subject of count 4 did not cross the line that Ms F had earlier drawn, when she refused to participate in intercourse unless Mr Moss wore a condom. There was no evidence from Ms F suggesting that she demonstrated any reluctance to get on to the couch and take up the position indicated by Mr Moss. Nor did Ms F give evidence of any protest about the conduct. She did not suggest any further threat by Mr Moss relating to this conduct. However, Ms F had made it clear in her evidence that Mr Moss’s earlier conduct had been “scary” and that because she had had a gun pointed in her face, she was willing to do anything he wanted her to. She was afraid that he would hurt her. When the incident the subject of count 4 occurred, Ms F had already telephoned the driver, who was waiting outside, to say that she was leaving. She had dressed herself. There was no suggestion by Ms F that Mr Moss had indicated that he would not allow her to leave.

The central issue on this count was whether Ms F had withdrawn her initial consent to sexual activity. There is no doubt about that initial consent. A further central issue is whether Mr Moss knew that she had withdrawn her consent, or was recklessly indifferent as to whether or not she was consenting.
The jury began deliberating about 12.30 pm on 17 May 2011. They deliberated for the balance of the afternoon, subject to some short interruptions for further directions from the Judge. They renewed their deliberations at 10.00 am on 18 May 2011. About 2.30 pm they returned with the following question:
If Ms F felt intimidated and willing to do anything so that she could get out of the flat, what could we, the jury, reasonably expect to have been said or shown for consent to have been withdrawn, or is the acceptance of intimidation acceptable within itself without Ms F physically having to say or to resist?
The foreperson of the jury indicated that this question related to count 4.
After submissions from counsel, the Judge repeated the direction that he had given the jury in relation to the charge of rape, and then came to count 4. Again, in substance he repeated his earlier direction. He summarised the facts relied upon in support of this charge. He explained the meaning of assault, and that that included the element that the touching must be without consent. He went on to say:
Ms F says that while she raised no objection, by the time this occurred she was intimidated and willing to do anything so that she could get out of the flat. Just as with the charge of rape, consent in respect of indecent assault means a free and voluntary agreement to engage in the touching.
Pausing there. Consent in indecent assault is exactly the same as consent in rape. Consent as I have said, means the free and voluntary agreement to engage in the touching in this case.
Consent is not the same as submission. If the complainant submitted to an assault or indecent assault by reason of violence or threats or intimidation, then that is not consent. It is a matter of fact for you to determine whether or not the accused was violent or threatening or intimidatory towards the complainant. It is a matter of fact for you to determine whether the complainant gave a free and voluntary agreement to engage in the touching.
That focuses on the mind of the complainant, however what does not appear in this written direction [a written direction on matters of law that the Judge had given to the jury] is what focuses on the mind of the accused and it is equally important, it is exactly the same in the case of indecent assault as it is with rape. So you go back, if you like, to the ingredient of rape which focuses on the mind of the accused and that is the third ingredient of rape.
That third ingredient applies to the accused’s frame of mind in respect of indecent assault. So with the variations that rape is substituted for indecent assault and so on, that ingredient of rape, which refers to the mind of the accused, also applies to indecent assault.
The second ingredient of indecent assault is that the assault must be committed in circumstances of indecency. If you were to find the assault proved it would be for you, the jury, to determine by reference to community standards whether the assault was indecent.
It is as if you transfer the third ingredient to count 4 relating to the mind of the accused and that which the prosecution must prove. The prosecution must prove that ingredient as it relates to indecent assault and as it concerns the state of mind of the accused.
By directing the jury to apply the “third ingredient” of the directions relating to rape, the Judge directed the jury that they had to be satisfied that Mr Moss either knew that Ms F was not consenting, or that Mr Moss was recklessly indifferent to her lack of consent. That “third ingredient” on the count of rape included an explanation as to the meaning of “recklessly indifferent”.
In my respectful opinion this further direction was inadequate in the circumstances.
The question raised by the jury was a pertinent one. What will amount to a withdrawal of consent? Also, how might Mr Moss have known, by what was “said or shown”, that consent was withdrawn? Was it sufficient that there was in fact some intimidation, that making it unnecessary for Ms Fto have to say or do anything by way of resistance?
This was a significant aspect on count 4. As I have said, the conduct the subject of count 4 did not cross the line drawn by Ms F. Granted, it came after the threats to which she said she was subjected, which threats she said intimidated her. But on her own evidence those threats related to her willingness to engage in sexual intercourse without Mr Moss using a condom. Neither the original directions, nor the further direction by the Judge, assisted the jury on this vital issue. To convict on count 4, the jury had to be satisfied beyond reasonable doubt that Mr Moss either knew that Ms F had withdrawn consent to all sexual activity, or must have been recklessly indifferent to the question of whether she consented or not. If the jury accepted the evidence of Ms F, it was not difficult for them to make a finding that Mr Moss knew that she was not consenting to sexual intercourse unless he used a condom. It was by no means so easy to conclude that he knew, once threats had been made, that she was no longer consenting to any sexual activity with him. It is important to bear in mind in this context that on her own evidence, she did not say or do anything to indicate her reluctance to engage in the conduct the subject of count 4.
The Judge’s further directions did not give the jury any assistance in grappling with this topic, one that required careful consideration. In his address to the jury, counsel for the DPP had not differentiated between count 2 and count 4 in relation to consent. Moreover, the further directions by the Judge suggested that in relation to the issue of consent the approach to be taken was the same on count 1 and count 4. That was potentially misleading in the circumstances. I consider that the Judge should also have reminded the jury of Ms F’s evidence that Mr Moss’s hour had expired.
In my opinion, in light of the jury’s question, and the further directions by the Judge, there is an unacceptable risk of the jury having failed to consider properly the question of whether, in relation to count 4, they were satisfied beyond reasonable doubt that Mr Moss knew that Ms F was not consenting to being touched in the way in which she did, or was recklessly indifferent as to her consent. In my opinion the conviction on count 4 must be set aside.
Complaint that guilty verdict on count 1 inconsistent with the not guilty verdicts on count 2 and count 3 (Ground 2); complaint that the verdict of guilty on count 1 is unreasonable (Ground 1)
This ground requires the Court to make its own assessment of the evidence, and to consider whether it was open to the jury to be satisfied beyond reasonable doubt that Mr Moss was guilty of count 1. The principles that this Court must apply were recently restated by the High Court in R v Nguyen [2010] HCA 38; (2010) 85 ALJR 8 at [33]:
[33] The task of an appellate court in considering whether a verdict of guilty returned by a jury "should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence" was described by this Court in M. As four members of the Court pointed out in M, the conclusion that a verdict should be set aside on this basis is often expressed in terms of the verdict being "unsafe or unsatisfactory", "unjust or unsafe" or "dangerous or unsafe". The question for the appellate court is one of fact.
"[T]he 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."
As the plurality in M went on to point out:
"But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations. "
The authoritative guidance which this Court provided in M about the task of a court of criminal appeal was expressed in the following terms:
“It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court 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."
Footnotes omitted
In support of these grounds, Ms Abraham pointed to the apparent inconsistency between the findings of guilt on count 1 and count 4 and the not guilty findings on count 2 and count 3. The jury was evidently not prepared to act on two central aspects of Ms F’s evidence – the occurrence of the choking incident and the fact of penetration. It is one thing, although surprising, for the jury not to be satisfied that penetration occurred, particularly having regard to the evidence of Ms F. It is another thing for the jury not to be prepared to act on the evidence of the choking incident. There does not seem to be any room for a mistaken interpretation of what happened. I cannot identify any basis for treating this part of Ms F’s evidence differently. The choking incident was a significant aspect of the prosecution case. The pointing of the gun and the choking were the basis of the intimidation argument. The choking came immediately before the attempted intercourse without using a condom, and it established a basis (if accepted) for the making of a threat, lack of consent and submission through intimidation. These are troubling features of the case.
The verdicts are not irreconcilable in law, or even on the facts. But, for the reasons indicated, they cast a real shadow over the verdicts on count 1 and count 4.
I accept also the submission that there is nothing about the incidents the subject of count 1 and count 4 that would suggest that there was a particular or identifiable reason for relying on Ms F’s evidence about crucial aspects of those counts, as distinct from her evidence on crucial aspects of the other two counts. Nor was any such fact identified by Mr Preston in his submissions.
Ms Abraham also relies on the circumstance that Ms F gave inconsistent accounts of what had happened. When she spoke to Sergeant Anderson on the telephone not long after the incident, she did not refer to any sexual activity having occurred, nor say that she had been raped. She said that he had pushed her against a wall in the shower, and had grabbed her around the throat. In evidence she accepted that did not occur. About two hours later, in a statement to Constable Mounfield, she did not refer to the choking incident, a matter on which the Judge commented to the jury. Nor did she refer to being raped. She told Constable Mounfield that, in relation to count 1, the gun was pointed at her a second time, something which in evidence she agreed did not occur.
The inconsistencies between Ms F’s evidence, and her statements out of court, are troubling. They are significant. I have not gone into the details. But they are not such that the jury could not have acted on her evidence. They could be explained as attributable to the shock of the events that occurred. And the Judge directed the jury carefully in relation to them.
There are also some significant contextual circumstances. All of the events in question occurred over the space of about an hour. They were all interlinked. Mr Moss did not deny the presence of replica guns in his unit, nor that the replica pistol was in the bedroom. However, as the outline of evidence (above) indicates, he gave a very different explanation of what happened in relation to the gun in the bedroom. It is common ground that Mr Moss told Ms F that the pistol was not loaded. He said he told her that it was a replica, but she denied that.
It is also necessary to take into account the Judge’s error in refusing to allow counsel for Mr Moss to cross-examine Ms J about her telephone conversation with the police. While that was an error of law, I am satisfied that it could not have had any effect on the outcome of the case. In other words, notwithstanding that error, and absent any other defect, I would be satisfied that the charges were proven. Or, to put it differently, this particular error by the Judge could not have had any effect on the outcome, because it would have done no more than expose the credibility of Ms J to attack.
The approach to be taken in considering these grounds of appeal is that outlined in the passages from Nguyen set out above.
When inconsistency between verdicts returned by the jury is suggested as a reason to find a verdict of guilty unreasonable, the approach to be taken is that established by the High Court in MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606. There, Gleeson CJ, Hayne and Callinan JJ said at [33]-[34]:
[33]In MacKenzie v The Queen, Gaudron, Gummow and Kirby JJ stated a number of general propositions concerning the significance that may properly be attached to what is sometimes referred to as factual inconsistency between verdicts. In that respect, it is to be noted that, where an accused is charged with multiple offences, differences between the verdicts may not, in truth, involve inconsistencies even of a factual kind. …
[34]Since the ultimate question concerns the reasonableness of the jury's decision, the significance of verdicts of not guilty on some counts in an indictment must necessarily be considered in the light of the facts and circumstances of the particular case. Furthermore, it must be considered in the context of the system within which juries function, and of their role in that system.
Citations omitted
Their Honours then went on to enumerate features of the jury system for which allowance should be made. I bear in mind, in particular, what their Honours said at [35]:
[35]It appears from the review of decisions of trial judges and intermediate appellate courts undertaken in Markuleski that some judges have taken Jones as authority for the proposition that where multiple offences are alleged involving the one complainant, then verdicts of not guilty on some counts necessarily reflect 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. That view is erroneous. It overlooks the attention to factual detail in the reasoning of Jones. It also overlooks the principles stated in MacKenzie, which were not qualified in Jones, and the considerations mentioned in the preceding paragraph in these reasons. Jones is not to be understood as establishing a set of legal propositions, separate or different from the test formulated in M, which must be applied in deciding whether a conviction on one or more counts of sexual offences, when the accused was acquitted on other counts, is unreasonable, or cannot be supported, having regard to the evidence.
Citations omitted
The approach taken by McHugh, Gummow and Kirby JJ was similar at [85]-[86].
I cannot identify any basis for the finding of guilty on count 1 and the finding of not guilty of count 2. The two incidents were no more than minutes apart. On the prosecution case, and on Ms F’s evidence, they were part of a course of conduct by Mr Moss intended to intimidate Ms F. There is no reason to think that faulty memory is a factor for differentiating between the two counts. I cannot identify any evidence tending to support count 1 that was not equally available in relation to count 2. Mr Preston did not suggest there was any such evidence. If the jury was looking for something to support a finding beyond reasonable doubt, I cannot identify anything that was available in relation to count 1 but not count 2. This was not a case in which the jury might have taken the approach that, faced with multiple charges, justice would be met by convicting of some only. I do not suggest that this is a case of legal inconsistency, meaning verdicts which as a matter of law cannot stand together. The difficulty which I have with the jury’s verdict is in identifying any basis for a different conclusion on what was a central aspect of the case. The jury’s verdict that Mr Moss was not guilty of rape, but guilty of attempted rape, is also problematical in this context. As I have earlier said, Ms F was quite definite that penetration occurred, and it is not easy to see how she could have been mistaken on that. Yet the jury did not accept her evidence.
Having considered the evidence as a whole, I consider that there is no satisfactory explanation for the difference of approach, and in that sense, making due allowance for the role of the jury as the finders of fact, the verdict on count 1 is unreasonable. There is a strong suggestion of some kind of compromise in the performance of the jury’s verdict: MFA v The Queen at [86]. The conviction should be quashed, and a judgment and a verdict of acquittal should be entered on this count.
Count 4
In view of the conclusions that I have reached, it is necessary to return to count 4. In relation to that count, I am not satisfied that it was not open to the jury, on the evidence, to be persuaded beyond reasonable doubt of guilt. My conclusion was that there was a risk of miscarriage of justice, having regard to the directions given to the jury.
In the circumstances of this case, I would not order a retrial. It does not seem to me to be a practical proposition for the DPP to pursue count 4 standing alone, in the face of verdicts of acquittal on count 1, count 2 and count 3. Accordingly, on this count it is also appropriate to direct that a judgment and verdict of acquittal be entered.
It should not be thought from my conclusions that a prostitute or “escort” is any less entitled to the protection of the law than any other person. Ms F’s occupation has played no part in my reasoning, except that, as she herself acknowledged, initially she was consenting to sexual intercourse in exchange for payment. The outcome of the appeal is a result of the verdicts returned by the jury, coupled with the misdirection on count 4.
Orders
For those reasons I would allow the appeal, set aside the convictions on count 1, count 3 and count 4, and direct that on each count a judgment and verdict of acquittal be entered.
ANDERSON J: I agree that the appeal should be allowed. I agree with the orders proposed by the Chief Justice and I agree with his reasons.
PEEK J: I agree that the appeal should be allowed and with the orders proposed by the Chief Justice. I agree with his reasons and have nothing to add.

[2011] SASCFC 93

26 August 2011

Key Legal Topics

Areas of Law

Criminal Law

Evidence

Legal Concepts

Charge

Appeal