R v O'Donnell - [2000] NSWCCA 338

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: Regina v Jason Gordon O'Donnell [2000] NSWCCA 338

FILE NUMBER(S):
60379/97

HEARING DATE(S): 17 August 2000

JUDGMENT DATE: 17/08/2000

PARTIES:
Regina v Jason Gordon O'Donnell

JUDGMENT OF: Stein JA Smart AJ Ireland AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 96/21/0131

LOWER COURT JUDICIAL OFFICER: Payne DCJ

COUNSEL:
B M Niven (Apellant)
L M B Lamprati (Crown)

SOLICITORS:
D J Humphreys (Appellant)
S E O'Connor (Crown)

CATCHWORDS:
CRIMINAL LAW - sexual assault - appeal against conviction - unsafe and unsatisfactory verdict - unreasonable conviction - miscarriage of justice

LEGISLATION CITED:
Criminal Appeal Act 1912, s 6

DECISION:
Appeal against conviction dismissed. Leave to appeal against sentence refused.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL
60379/97
STEIN JA
SMART AJ
IRELAND AJ
Thursday, 17 August 2000

REGINA v Jason Gordon O’DONNELL
JUDGMENT

STEIN JA: The sole ground of appeal is that the verdict was unsafe and unsatisfactory. For some time it has been said that this terminology is inappropriate to identify a ground of appeal in s 6 of the Criminal Appeal Act 1912. From the grounds of appeal filed and the submissions made, I understand the appellant to be contending that the verdict of the jury was unreasonable or cannot be supported and that there was a miscarriage of justice.
No error is alleged in relation to the summing-up, nor in the conduct of the trial itself. The appeal therefore comes down to whether, on the evidence, the jury ought to have had a reasonable doubt as to the guilt of the accused. Was it, upon a consideration of the whole of the evidence, open to the jury to be satisfied beyond reasonable doubt that the accused was guilty? See M v The Queen (1994) 181 CLR 487 at 493 - 494 and Jones v The Queen (1997) 191 CLR 439.
In examining the evidence the Court must assess its nature and quality, reliability and credibility, (Morris v R (1987) 163 CLR 454). Regard must also be had to the fact that the jury is entrusted with the responsibility of determining guilt or innocence and have the benefit of seeing and hearing the witnesses.

The appellant was charged with 5 counts alleging various sexual assaults on the complainant late in the night of 8 July 1995 and in the early hours of 9 July 1995. Counts 1, 2 and 3 alleged aggravated sexual intercourse without consent. Counts 4 and 5 charged the appellant with acts of indecency towards the complainant.
The incidents were alleged to have taken place in a flat at Ashfield where the appellant and the complainant were present, together with the complainant's friend, Ms Kelly and Ms Kelly’s friend, Mr Fulford. The flat was Mr Fulford’s and the appellant had been living there for a short time.
Counts 1 and 2 related to events alleged to have occurred in a bedroom, while the other counts were alleged to have happened in the lounge room of the flat. Count 1 alleged vaginal penetration by penis and Count 2 penile penetration of the complainant’s mouth. Each of these offences was alleged to have been accompanied by the threat of the use of offensive weapon (a knife) against the complainant.
Count 3 alleged penile penetration of the vagina accompanied by threat of the use of a knife, indeed while the appellant was in a possession of a knife.
Count 4 alleged that the appellant masturbated to the point of ejaculation over the complainant and Count 5 alleged that he urinated over her.
The jury were instructed that if they were not satisfied beyond reasonable doubt about the matter of aggravation in either or all of the first 3 counts, then they should find the accused not guilty. However, if they were satisfied beyond reasonable doubt that the accused had committed a sexual assault on the complainant, they would find him guilty of the alternative counts.
On 20 March 1997 the jury returned verdicts of not guilty to Counts 1, 2 and 3 but guilty to the alternative offences of sexual assault. The jury returned verdicts of guilty to Counts 4 and 5.
On 18 July 1997 the appellant was sentenced to 7 years penal servitude on Counts 1 to 3 to be served concurrently and commencing on 23 April 1999. These sentences comprised a minimum term of 4 years and an additional term of 3 years. Concurrent fixed terms of 12 months imprisonment were imposed in relation to Counts 4 and 5.
The appellant’s case
The appellant submits that the Crown case depended on the evidence of the complainant. The acceptance of her as truthful and reliable was claimed to be crucial to the prosecution proving its case. It was submitted that her evidence was so unreliable and unbelievable that the verdicts of guilty were unsafe and unsatisfactory. A number of reasons have been advanced to support this contention.
First, it is submitted that the complaints made by the complainant were inconsistent and illogical. The complainant called out from the bedroom in which she claimed to have been twice sexually assaulted by the appellant. Her friend, Ms Kelly and Mr Fulford then entered the bedroom and the complainant made no complaint.
Later when Ms Kelly and Mr Fulford indicated that they were leaving the flat for a while, the complainant asked them not to leave but provided no reason. She did not complain about being left alone in the flat with the person she later claimed had sexually assaulted her.
When Ms Kelly and Mr Fulford returned to the flat the complainant alleged to them that she had been sexually assaulted by the appellant in the lounge room. Also, she alleged that the appellant had ejaculated over her and urinated on her jeans (Counts 3, 4 and 5). She did not complain about any sexual assaults in the bedroom (Counts 1 and 2).
In making this complaint, she did not mention any threat with a knife. The first time that she mentioned a knife threat was when making her statement to police on 9 July 1995. It was not until 19 October 1995 that she complained that the appellant had actually presented a knife to her.
In addition, it is submitted that the complainant’s evidence that the appellant ejaculated inside her in the lounge room was not supported by the scientific evidence. The same submission is made in relation to the oral sexual intercourse alleged in Count 2.
There may, of course, be good reason why a victim of sexual assault may hesitate, delay or refrain in making a complaint. Delay in a complaint may not necessarily lead to a rejection of a complainant’s evidence. However, unlike many sexual assault cases the complaint here was made at a very early stage.
Indeed, the complainant was waiting at the entrance to the flat when Ms Kelly and Mr Fulford returned after being away 45 minutes. She was shaking and crying and complained of having been raped by the appellant. They took her to hospital. On the way to the hospital Ms Kelly and the complainant got out of the car to talk. Ms Kelly testified as follows:
She said that he didn’t - that she didn’t want it, but he gave it to her anyway, that he had-when we had left she was still sitting in the lounge room and he had walked into his bedroom - I presume it was his bedroom. He came back out with nothing on, no clothes on, and sat on the armchair of the lounge I think it was and took her jeans and underpants off and she said that he’d forced his way inside of her and had come inside of her. Then once he’d finished doing that that she - that he wanted her to touch his penis and she wouldn’t, so he did it and he came all over her again and I think somewhere in the midst of that he also urinated on her. She commented that he’d urinated on her and pointed to her jeans.
Ms Kelly noticed a dark spot on the complainant’s jeans which was ‘a fairly big wet mark’.
Mr Fulford’s evidence confirmed the complainant’s distress when seen outside the flat and her claim of being raped.
Within a few hours the complainant told police of the incident in the bedroom the subject of Counts 1 and 2.
The Crown accepts that the complainant did not complain when Ms Kelly and Mr Fulford entered the bedroom after she had called out. What is apparent is that at that time the complainant was badly intoxicated and feeling ill. Shortly afterwards she began vomiting and this continued for some time. Ms Kelly and Mr Fulford entered the bedroom in response to the complainant yelling for help. The complainant said that the appellant had placed a blanket over her and himself and put his arm around her. He was naked, according to the complainant. She says that Ms Kelly yelled to the appellant to get off the complainant. Mr Fulford had wanted to pull back the blanket but the appellant had asked him not to.
This evidence was generally confirmed by Ms Kelly and Mr Fulford. The latter said that the appellant asked him not to pull the sheet back because the appellant had nothing on.
The appellant denied this and said that he was not naked and had his shorts on. He asked Mr Fulford not to pull back the cover because he was embarrassed.
The jury would have been entitled to have accepted the complainant’s evidence that the appellant was naked and rejected the appellant’s evidence, given the evidence of Mr Fulford.
Mr Fulford also gave evidence that a 20 pound weight had been placed against the bedroom door by the appellant. The jury may have been entitled to infer that the weight had been placed against the door to make it difficult for anyone to enter quickly.
In my opinion, the failure to complain about Counts 1 and 2 when Ms Kelly and Mr Fulford entered the bedroom does not assume the weighty significance argued on behalf of the appellant.
As to the failure to complain about the knife threat until later when she spoke to police, I do not see this as a matter of great significance. It was, of course, very material to the aggravation alleged in Counts 1, 2 and 3 but the central allegation was the sexual assaults about which she complained.
As to the scientific evidence, the absence of semen on the vaginal swab may not be a matter of great significance. The complainant was severely affected by alcohol at the time. She had a tampon inserted because she was menstruating. The tampon was not tested for semen. Semen was detected on her underpants, her jeans, on the lounge chair cover and in the abdominal swab. DNA testing found that it could have come from the appellant. That is, with the exception of the abdominal swab which was not tested. It should also be mentioned that urine was found on the front of the complainant’s jeans.

Little significance should be attached to no semen being found on the mouth swab taken from the complainant. She had vomited on a number of occasions beforehand and had washed her mouth out.
The appellant submits that the verdicts of not guilty on Counts 1 - 3 of aggravated sexual assault must be based on the jury’s rejection of the complainant’s claims of the appellant’s threats with a knife. It is submitted that this rejection left the complainant without credibility.
Having rejected that evidence, it is submitted that the complainant was not left with sufficient credibility to support the alternative verdicts of sexual assaults and the guilty verdicts on Counts 4 and 5. Accordingly, it was not open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt.
I do not accept that it follows from the findings of not guilty that the jury found that the complainant was a person of no credit and ought to have had a reasonable doubt on all of the counts. Clearly the jury was not satisfied beyond reasonable doubt as to the element of aggravation.
On the issue of aggravation there was only the word of the complainant and the denial of the appellant - nothing more. Whereas, on the alternative counts of sexual assault and acts of indecency, there were factors present capable of supporting the complainant’s version as the truth and making the jury more confident in convicting. Some of these matters have already been mentioned. For example, the evidence supporting the complainant’s claim that the appellant was naked in the bedroom and the weight against the bedroom door. There was also the complainant’s evidence of the appellant saying that ‘Jason was going to spew about the lounge because there was blood on it’. It is clear that in saying this she was referring to Mr Fulford and not the appellant since it was Mr Fulford’s flat. Blood was found on the lounge and the complainant’s DNA was consistent with it. As already mentioned, semen that could have come from the appellant, according to DNA testing, was found on the complainant’s underpants, jeans and the lounge cover. Also, urine was found on the complainant’s jeans and this was supported by the evidence of Ms Kelly.

There were also other factors in the evidence which tended to support the complainant’s evidence. These have been mentioned in the Crown’s oral address to us this morning.
I am not persuaded that any of the matters relied on by the appellant lead to the conclusion that the verdicts were unsafe or unsatisfactory. Indeed, it seems to me that the verdicts of the jury are readily understandable and were open on the evidence.
I do not see how it may be concluded that the jury should have had a reasonable doubt of the guilt of the accused. The jury had the advantage of seeing and hearing the witnesses and were in a position to make a judgment on the credibility of the witnesses including, in particular, the complainant.
I note that the original Notice of Appeal refers to an appeal against conviction and sentence. The grounds of appeal only specify that the verdict was unsafe and unsatisfactory and no argument has been addressed to us on behalf of the appellant as to the sentence. Counsel for the appellant confirms this to be the case.
Accordingly, I would dismiss the appeal and refuse to give leave to appeal against sentence since that is not pressed.
SMART AJ: I agree.
IRELAND AJ: I also agree.
STEIN JA: The order of the Court is that the appeal is dismissed. Leave to appeal against sentence is refused.

oOo

LAST UPDATED: 11/09/2000