R v Schweizer
[2007] VSCA 157
•17 August 2007
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 344 of 2006
| THE QUEEN |
| v |
| PAUL HARDY SCHWEIZER |
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JUDGES: | MAXWELL P, KELLAM JA and KAYE AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 30 July 2007 | |
DATE OF JUDGMENT: | 17 August 2007 | |
MEDIUM NEUTRAL CITATION: | [2007] VSCA 157 | |
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CRIMINAL LAW – Appeal against conviction – Assaults – Whether warning should have been given by trial judge of danger of convicting on the evidence of the complainant without careful scrutiny in circumstances where complainant admitted having made false statements to police – Credibility of complainant – Whether conviction unsafe – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M Gamble SC | Ms A Cannon, Solicitor for Public Prosecutions |
| For the Applicant | Mr P Matthews | Victoria Legal Aid |
MAXWELL P:
I have had the considerable advantage of reading in draft the reasons for judgment of Kellam JA. For the reasons given by his Honour, I agree that the application for leave to appeal against conviction should be dismissed. I also agree with the additional observations of Kaye AJA.
KELLAM JA:
In August 2006 the applicant was presented for trial in the County Court on 22 counts. The presentment alleged six counts of intentionally causing injury, six counts of recklessly causing injury, two counts of intentionally causing serious injury, two counts of recklessly causing serious injury, two counts of rape, two counts of false imprisonment, one count of aggravated burglary and one count of common assault. Of these counts the applicant was convicted of one count of intentionally causing serious injury, two counts of intentionally causing injury, one count of recklessly causing injury, one count of aggravated burglary and one count of common assault. He seeks leave to appeal his conviction on these counts.
Background
The complainant gave evidence that she had first met the applicant in September 2001. At the time, she was employed as a sex worker in a brothel and the applicant was a client. Soon thereafter she formed a relationship with the applicant and resided with him at various places in the south east of Melbourne and from time to time in a campervan owned by him. Clearly the relationship between the couple was volatile at times and punctuated by alternating periods of cohabitation and separation. Ultimately it ended in February 2004. The counts preferred against the applicant were in relation to nine specific incidents.
Incident number 1
This incident was alleged to have occurred at Frankston on 10 March 2002. It
was the subject of count 1 on the presentment (intentionally causing injury) with count 2 (recklessly causing injury) in the alternative.
The evidence of the complainant was that she and the applicant were at the home of a friend, Sean O’Sullivan. An argument developed between the applicant and the complainant during which she was punched on the nose. She said that she recalled hitting the floor. Sean O’Sullivan grabbed the applicant and pulled him away. She ran out of the house and kept running until she collapsed.
A service station attendant came up and asked her if she needed assistance. Police and an ambulance were called. A policeman who attended the scene gave evidence that he observed the complainant to be apparently affected by alcohol and that she had injuries to her face including a cut nose and a “fat lip”. She was taken to Mornington police station where photographs were taken of her injuries. Under cross-examination the police officer stated that the complainant had told him that she had had an argument with her ex-boyfriend and thought she had been knocked out. An ambulance took the complainant to Frankston Hospital. One of the ambulance officers who attended upon the complainant gave evidence that she observed obvious facial injuries including lacerations on the forehead of the complainant as well as to her nose, a swollen top lip and bruising to her face. A doctor who examined her at Frankston Hospital gave evidence that he observed similar injuries. The cut to her nose was a fresh injury. In cross-examination he confirmed that the injury to her nose was consistent with either a punch or her nose having hit a hard surface after she had fallen over. Sean O’Sullivan, who was a friend of the applicant, gave evidence that he recalled the applicant and the complainant having two small arguments at his house on an evening in March 2002. He said the complainant accused both him and the applicant of taking her handbag, with which she attacked the applicant. He said that he told her to leave the premises, with which she ran out the front door whilst he restrained the applicant. He said he saw no sign of blood on the complainant.
The jury acquitted the applicant on the count of intentionally causing injury but found him guilty of recklessly causing injury.
Incident number 2
This incident was alleged to have occurred in Dandenong on 24 October 2002. It was the subject of count 3 (intentionally causing injury) with count 4 (recklessly causing injury) being alleged in the alternative. The complainant gave evidence that she was residing with the applicant in his campervan at the time when an argument developed. She said that the applicant pushed her out of the campervan and commenced to kick and punch her before throwing her into a nearby dam and then driving away. She managed to get out of the dam. The applicant returned and drove her to her parents’ house in a nearby suburb where she showered. The complainant gave evidence that, in company with the applicant, she attended upon Dr Schuijers the next day as she was still in considerable pain. Dr Schuijers gave evidence that he examined the complainant on 25 October 2002. She was found by him to have extensive bruising to her head and jaw as well as bruising and abrasions to her arms, left shoulder, left hip and left knee. She had marked tenderness over a number of ribs on her left side and he suspected that she had suffered from fractured ribs and a fractured left jaw. Subsequent X-rays obtained by him revealed no such fractures. The applicant was found guilty of intentionally causing injury.
Incident number 3
The factual background to count 5 (intentionally causing serious injury) and to count 6 (recklessly causing serious injury) as an alternative count, was alleged to have taken place at Tenby Point near Wonthaggi on 27 October 2002. On Saturday 26 October 2002 the applicant and the complainant travelled to a holiday house at Tenby Point. The complainant gave evidence that whilst there she prepared an evening meal. Both she and the applicant had been drinking. However she was still sober, whilst the applicant was drunk. An argument commenced after the evening meal and in the course thereof the applicant grabbed the back of the complainant’s head and pushed her face into the kitchen floor. He punched her in the ear. He then proceeded to kick her. She stood up and tried to flee. The applicant grabbed her and threw her over the veranda railings. She ran down the driveway. She said that she collapsed on a dirt road and was found by a neighbour who called an ambulance and police. Ambulance officers attended at the scene. Evidence was given by one of them that the complainant had been found sitting in the middle of the roadway. She was found to have extensive bruising and she was placed in an ambulance. Police attended soon thereafter and attended upon the applicant’s premises. He told police that he and the complainant had had a verbal argument and that she had gone for a walk. Soon thereafter the complainant was admitted to the Wonthaggi Hospital. She remained as an inpatient there between late evening on 27 October until 30 October 2002. Evidence was given by a doctor who examined her there. X-rays taken that evening disclosed a fracture of the left tenth rib which was clearly a recent injury. Whilst she was in hospital and on 29 October 2002 the complainant made statements to police whereby she said that the applicant was responsible for causing the injuries suffered by her on 24 October 2002 (incident number 2) and on 27 October (incident number 3). The applicant was convicted on count 5, a count of intentionally causing serious injury.
Incident number 4
Counts 7 (rape), 8 (intentionally causing injury), and 9 (recklessly causing injury in the alternative to count 8) related to events alleged to have occurred at Carrum Downs between 1 February 2003 and 1 March 2003. At that time the applicant and the complainant resided in a cabin rented in the applicant’s name at a caravan park in Carrum Downs. The complainant gave evidence that on Valentine’s Day, 14 February 2003, the applicant did not arrive home until 10.30 or 11.00 pm. When he did arrive he was very drunk and an argument took place. The complainant gave evidence that the applicant punched her in the mouth causing her lip to be split open. She gave evidence that the applicant then threw her to the ground and inserted his penis into her anus. Thereafter the complainant ran out of the cabin towards the manager’s office. A taxi took her to the Frankston Hospital. She gave evidence that she was in the hospital for some hours during which time she telephoned the applicant. She gave evidence that the applicant told her that he would not be in the cabin and that if she did not involve police in the matter she could stay in the cabin for the night. She returned to the caravan park cabin. The next day the applicant returned and their relationship resumed. She gave evidence that they continued to live together in the campervan, having been asked to leave the caravan park. However, in March 2003 she left the applicant and moved into a women’s refuge in Newport before moving into housing in Wellington Street, Flemington.
The jury found the applicant not guilty on counts 7, 8 and 9.
Incident number 5
Count 10 (intentionally causing injury), count 11 (recklessly causing injury in the alternative to count 10), count 12 (false imprisonment) and count 13 (rape) were the subject of allegations of events said to have occurred at Flemington on 1 September 2003. The complainant alleged that an argument developed between her and the applicant over the whereabouts of an article that he had written in the course of undertaking a computer course. The applicant became angry and came into the bedroom occupied by the complainant at her premises in Flemington. He put his hands over her mouth and nose and grabbed her arms and pushed her down. He tied her hands behind her back with a scarf she was wearing and then tied her ankles together with another scarf. He put a pillowcase over her head and bashed her around the head with a cushion. He took his belt off and put it around her neck. When he did this he told her that she had “five seconds” to tell him where the article was. Each time the complainant suggested a location the applicant tightened the belt around her neck and went to look for the article. She started to choke, suffered an asthma attack and vomited. Soon thereafter he put his hand or fingers into her vagina. She remained tied up in her flat for the next three days.
The applicant was found not guilty on each of counts 10, 11, 12 and 13.
Incident number 6
Counts 14 (intentionally causing injury), and 15 (recklessly causing injury in the alternative to count 14) related to events which were alleged to have taken place on 5 September 2003. The complainant gave evidence that following the events of 1 September 2003 the applicant had calmed down. On that day the applicant drove the complainant to an ATM to withdraw cash, the complainant having that day received Centrelink payments which were credited to her bank account. He parked his car in a plaza in Newmarket and then an argument developed. The complainant went to walk towards the railway station when she was grabbed by the applicant and dragged back to his car. The argument continued and the applicant punched the complainant in the face. The complainant went to nearby public toilets to get away from the applicant. She then attended a medical clinic in Racecourse Road, Flemington. When she attended upon the clinic she was crying and shaking. A doctor from the clinic gave evidence that he examined the complainant at 1.30 pm on 5 September 2003. He observed possible injury to the bony orbit supporting her right eye. He said that such an injury was consistent with some form of trauma such as that caused by a clenched fist. He considered that the injuries were recent because visible bruising had not reached the surface. The complainant told him that she had been assaulted and for that reason the doctor contacted the police. She left the clinic in company with police officers and she was taken to the Royal Melbourne Hospital. Later that day she attended at Flemington police station where a detective senior constable, who gave evidence, observed that she had swelling and bruising around her eyes. The applicant was convicted on count 14, a count of intentionally causing injury.
Incident number 7
The events forming the basis of count 16 (aggravated burglary), count 17 (false imprisonment) and count 18 (a count of common assault in the alternative to count 17) were alleged to have occurred in the early morning of 6 September 2003. Following her attendance at the Flemington police station on 5 September 2003 the complainant had returned to her residence in Wellington Road, Flemington at approximately 11.15 pm. The complainant stated that at approximately 1.00 am the next morning she had heard scraping sounds coming from outside her flat. It sounded as if somebody was trying to put a key into the front door lock. In fact the police had arranged for the locks to be changed the previous evening. She tried to use the fixed line telephone in the lounge room to contact police but found the line to be dead. She then used her mobile telephone to call police. Police attended approximately five or ten minutes later, looked around to see if there was anybody in the flat and then departed. Approximately half an hour or so after the police had left, the complainant heard the sound of glass shattering. She ran out of her bedroom, out the front door and started to run downstairs. However, she was grabbed from behind and was thrown onto a couch by the applicant, who thereafter, she said, remained in the flat keeping watch on her for approximately the next ten hours. A nearby neighbour gave evidence that she was woken by the sound of breaking glass and a woman screaming at about 2.00 am. Another neighbour gave evidence of having heard a commotion in the complainant’s apartment in the early hours of the morning. In the course of the afternoon of 6 September 2003 police attended at the complainant’s residence. They rang the buzzer and announced themselves and enquired as to whether the applicant had been seen by the complainant. The complainant walked out the front door and down the steps. She opened the front security door and let police in to her residence. The police observed that the complainant had at that time a very large purple black eye. They then arrested the applicant who they found in the complainant’s flat. The applicant was convicted of aggravated burglary and of common assault. He was found not guilty of the count of false imprisonment.
Following the events of 6 September 2003 the complainant obtained an intervention order against the applicant. She did not see him again until late December 2003.
Incident number 8
The events forming the basis for the allegations of count 19 (intentionally causing serious injury) and count 20 (recklessly causing serious injury in the alternative to count 19) were alleged to have taken place between 18 and 24 December 2003. The complainant gave evidence that she went to visit the applicant at Langwarrin Caravan Park on 23 December 2003, her reason for visiting him being that she was intending to go Christmas shopping for his family and their friends. An argument developed between them and she was punched in the mouth. She fell to the ground and was kicked. She lost consciousness. She gave evidence that she woke up the next day on the couch. The applicant brought her a packet of Panadeine and told her to stay in bed and not to leave the cabin. She said that she remained at the caravan park for some days before returning to Flemington. There she attended upon a medical clinic. A doctor observed that she had bruising to her right upper arm, and pain and tenderness in her left lower chest consistent with a fractured rib. The X-ray disclosed that the fracture was “old”, meaning that it had not occurred that day. The applicant was acquitted on counts 19 and 20.
Incident number 9
The factual circumstances upon which count 21 (intentionally causing injury) and count 22 (recklessly causing injury) were based were alleged to have occurred at Langwarrin on 14 February 2004. The complainant stated that on Valentine’s Day 2004, being Saturday 14 February, the applicant telephoned her. He told her that he wanted to see her and take her to dinner. She gave evidence that she drove to the Langwarrin Caravan Park where another argument developed and she was punched on the left side of her face. She left Langwarrin and went to a medical clinic in Flemington. A doctor from that clinic gave evidence that on 17 February 2004 the complainant was observed to have a black eye with sub-conjunctival haemorrhage. She told him that the injury had been inflicted on the preceding Saturday night. The doctor concerned gave evidence that the age of the injuries he had observed was consistent with them being two or three days old. The applicant was acquitted on counts 21 and 22.
Ground 1 - The trial judge erred in failing to give any or any adequate warning as to the dangers of convicting on the evidence of the complainant without careful scrutiny of that evidence.
It will be recalled that on 29 October 2002 and whilst she was an inpatient at Wonthaggi Hospital the complainant made two statements to police whereby she stated that the injuries sustained by her on 24 October 2002 (incident number 2) and on 27 October (incident number 3) were caused by the applicant.
On 28 November 2002 the complainant made a further two statements to police whereby she withdrew each of her allegations made against the applicant in her statements of 29 October 2002 relating to incidents number 2 and 3. In her evidence before the jury the complainant said that the two statements made to police on 28 November 2002, whereby she withdrew her complaints, and whereby she said she was “not sure of the incidents leading up to” her injuries, were untrue. In the course of cross-examination she said that she knew the statements were not true, but she made them “to keep the peace and do what he asked me to do”.
In addition the applicant relies upon the fact that the complainant gave evidence before the jury that when she had given evidence at the committal hearing, her evidence that she had never been sexually assaulted by the applicant was not the truth. It will be recalled that the complainant later gave evidence before the jury that the applicant had raped her at the Carrum Downs Caravan Park on 14 February 2003. This allegation formed part of the allegations made in relation to incident number 4.
It is submitted on behalf of the applicant that the jury might not have appreciated the full implication of the admissions made by the complainant that she had lied on oath. In particular it is submitted that the jury might not have understood that the complainant had admitted to committing a serious criminal offence, that of perjury. It is submitted that such circumstances called for a warning from the trial judge, carrying the authority of his office, to the effect that the admission made by the complainant was a serious criminal offence and by reason thereof it would be dangerous to convict the applicant on the evidence of the complainant without giving such evidence special scrutiny. It is submitted further that there were a number of other aspects of the evidence given by the complainant which called her credibility into question. The fact that the complainant continued to return to be with the applicant over a period of nearly two years despite her description of repeated savage physical and sexual assaults is relied upon in this regard, as is the evidence that on occasions during this period she gave the applicant loving and affectionate letters and cards. The fact that the allegations of rape were made for the first time only a month before trial, and the fact that some of her evidence, such as her state of sobriety at the time of some of the incidents, was inconsistent with evidence led from other witnesses, is relied upon as further demonstrating the lack of credibility of the complainant. The fact that the applicant admitted telling an untruth to Dr Schuijers as to how she sustained the injuries alleged as incident number 2, as with other inconsistencies in her evidence, are relied upon by the applicant. In all of these circumstances it is contended that a strong warning was required from the judge as to the danger of convicting the applicant on the evidence of the complainant in order to avoid a perceptible risk of a miscarriage of justice. In this regard the applicant relies upon R v Miletic[1] where the Court of Appeal said[2]:
“… the principle is that the judge should give any direction that is necessary and practical, in the circumstances of the case, to avoid a perceptible risk of miscarriage of justice.”
[1][1997] 1 VR 593.
[2]Ibid 605.
However it should be observed that the Court went on to qualify that principle in the following way:[3]
“There are four aspects of that general principle that we desire to mention. First, we emphasize the words ‘necessary and practical’ and ‘perceptible’. A perceptible risk is one that is real or of substance, as opposed to a risk that is insignificant or theoretical. Secondly, we are speaking of directions that require the authority of the judge’s office. The factors calling for the warning must be of such a character that it is unsafe to leave the jury to rely on the arguments of counsel. Thirdly, an appellate court will attach weight to the judge’s assessment of what was required and, in appropriate cases, will infer from counsel’s not taking an exception that the direction in question was not required. Fourthly, the consequences of failure to give the direction will depend upon whether, in the event, there has been a miscarriage of justice.”
[3]Ibid.
There can be no doubt that the question of the credit of the complainant was an issue at the forefront of the trial of the applicant. The complainant was cross-examined in detail, by experienced counsel, in relation to each issue which reflected upon her credit. The judge’s charge dealt with the strong attacks made upon the credit of the complainant. No exception whatsoever was taken to his Honour’s charge, and in particular there was no request for his Honour to give a specific direction of the type now submitted to have been necessary.
Apart from the standard directions as to the manner in which the jury should approach the task of assessing any witness, his Honour gave specific directions as to matters relevant to the consideration of the complainant’s evidence. For example, the question of whether or not the complainant returned to sex work after commencing her relationship with the applicant was a matter in dispute in the trial. His Honour told the jury that if they took the view that she had lied about that then, if they wished, they were entitled to take the view that she might be “lying about everything”. He repeated that statement later in his charge by saying “ … if you think she is lying on one issue you may take the view, “Well, I am not prepared to accept anything she says beyond reasonable doubt, I will acquit on everything, and that is a view that is open to you.”
In relation to his remarks about the assessment of witnesses he said “All these comments I have been making apply equally to all witnesses, but obviously in particular in this case to (the complainant) because it is on her that the Crown case obviously turns and her evidence no doubt you will scrutinise very carefully”.
In giving directions to the jury about prior inconsistent statements his Honour referred to the evidence of the complainant specifically, and gave as one example of a prior inconsistent statement her statement at the committal that she had not been sexually abused by the applicant. He told the jury that if they were “not happy” with her explanation then they could use her inconsistency in consideration of her credibility.
The jury having heard his Honour’s charge would have understood clearly that a careful consideration of the credibility and the reliability of the complainant was required before the applicant could be convicted on any count on the presentment.
In those circumstances a direction of the type said by the applicant to be required in this case was not necessary to avoid a perceptible risk of miscarriage of justice. The fact that the complainant admitted to having made false statements to police previously and to having lied on oath at the committal hearing were not factors of such a character that it was necessary to supplement the directions given as to these matters by a specific warning of the nature said by the applicant’s counsel to have been required in this case. The jury were able to assess for themselves the nature of the quality of the complainant’s testimony.
It was argued before us that a special direction was necessary because the jury may well have not understood the significance of the complainant admitting that she told a lie in circumstances of being under oath at the committal hearing, or in circumstances of having made a statutory declaration in making the two statements to police withdrawing all allegations against the applicant. These facts did not call for a specific direction. There is nothing about these circumstances which is analogous to circumstances which, for example, call for an accomplice warning or a Longman warning, by reason of the fact that the full significance of the evidence may be apparent to the judge and not necessarily apparent to the lay mind.
As the Court observed in Miletic[4]:
“Where a concatenation of circumstances is within the capacity of a jury to evaluate, in the light of their own experience and with the benefit of counsel’s addresses, it is only in exceptional cases that a warning is required. More often it is simply a matter for the judge to decide whether or not it is appropriate to make a comment for the assistance of the jury.”
As pointed out above, the judge did much more than merely rely upon the arguments of counsel. In my view his charge outlined in a clear and unequivocal manner what the issues were before the jury, and in an exemplary fashion made clear the care with which they should approach the evidence put before them.
[4]Ibid 606.
There was nothing exceptional about these circumstances which would call for a specific warning that, having regard to the admissions made by the complainant that she had been untruthful to police and at the committal, it would be dangerous to convict on her evidence without giving it special scrutiny. In my view not only was such a direction not called for, but it may well have been undesirable. Had the judge relied upon those admissions in given such a warning, he would have been bound to remind the jury of the explanations given by the complainant as to why she had told such untruths. In essence her explanation was that she was acting under duress exerted upon her by the applicant when she made such statements. The judge might well have thought it undesirable to give emphasis to such evidence. Indeed, for the judge to have given such a warning, in circumstances where the issues in the trial were plainly before the jury, might well have been an encroachment upon the role of the jury who have the primary responsibility for determining guilt or innocence. Furthermore, and as stated below, it is apparent from the verdicts handed down by the jury that they did give close and careful scrutiny to the evidence relating to each separate count.
Ground 2 - The verdicts on each count are unsafe and unsatisfactory in that no reasonable jury properly instructed could, on the evidence, be satisfied beyond reasonable doubt of the applicant’s guilt.
The applicant submits that the verdicts were unsafe and unsatisfactory even if the warning the subject of Ground 1 is found by this Court not to be required. In my view it cannot be said that the verdicts of guilty were unreasonable or that upon the whole of the evidence it was not open to the jury to be satisfied beyond reasonable doubt of the guilt of the applicant on each of the counts of which he was convicted.
It is apparent from the verdicts entered that the jury gave careful consideration to the need to consider the evidence relating to each count separately, as they were directed by the trial judge to do. The fact that the jury was not satisfied beyond reasonable doubt on some counts does not mean that the verdicts of guilty on other counts were unreasonable, or not open on the evidence relating to those counts.
In relation to incident number 1, it will be recalled that the complainant gave evidence of having been punched on the nose. There was evidence before the jury that the applicant was highly intoxicated at the time. Some time thereafter, which on the evidence cannot be determined accurately, the complainant was observed by police, ambulance attendants and a doctor to have a cut to her nose. Whilst it is true that the doctor conceded that the injury to her nose was consistent with either a punch to her nose or a fall involving striking her nose on a hard surface, it was open to the jury to accept the complainant’s evidence, supported as it was, at least to some extent, by the observations of others of her condition in the hours following. Clearly a conviction of recklessly causing injury, taking into account the intoxicated state of the applicant, was open to the jury.
In relation to incident number 2, the complainant gave evidence that she was kicked and punched by the applicant. She was examined by Dr Schuijers the next day and found to have extensive bruising to her head and face and body. The nature of the injuries described by him was consistent with the nature of the assault described by the complainant. A conviction of intentionally causing injury was clearly open to the jury.
Incident number 3 was said by the complainant to have taken place at Tenby Point. The complainant described an assault including the punching and kicking of her by the applicant. Soon thereafter she was admitted to Wonthaggi Hospital where injuries consistent with the assaults described were observed. Those injuries included a fracture of a left rib which was disclosed by X-ray and described as a recent injury. The conviction of the applicant of a count of intentionally causing serious injury was in all the circumstances clearly open to the jury.
The evidence of the complainant was that incident number 6 involved circumstances whereby she was punched in the face by the applicant whilst she was in his car. Soon thereafter the complainant attended at a nearby medical clinic. The doctor who examined her concluded that her injuries were recent and consistent with trauma such as would be caused by a clenched fist. In his record of interview, the applicant agreed that the complainant had been struck by him but he maintained that he hit the complainant with his elbow accidentally. In my view the jury were entitled to reject that explanation and the conviction of intentionally causing injury was open to them in all the circumstances.
Incident number 7 related to allegations made by the complainant that the applicant had entered her residence, assaulted her and detained her there for some hours. It will be recalled that the evidence before the jury was that late on the evening of 5 September 2003 the complainant returned to her flat in company with police. Some hours later she heard scraping noises at her front door as if someone was seeking to insert a key in the lock. The locks had been changed earlier the evening before. The complainant rang police who attended. Some hours later she heard the sound of glass shattering. She left her unit and commenced to run downstairs when she was grabbed and dragged back into her flat. She said that she remained there for the next ten hours with the applicant observing her.
To some degree at least, parts of her evidence had independent support. A neighbour gave evidence that she was woken by the sound of a woman screaming and by the sound of breaking glass. Police later observed a broken glass panel in a door opening from a balcony. In his record of interview the applicant stated that in the early morning of 6 September he had come to the flat and been let in by the complainant. He said he went outside to have a cigarette when the complainant locked him out. His explanation was that he then broke the window.
The applicant was convicted of a count of aggravated burglary and a count of common assault in relation to this incident. He was acquitted on the count of false imprisonment. There is no inconsistency in that acquittal. The jury may well have accepted the complainant’s evidence about the entry of the applicant to her premises and the subsequent assault, without being satisfied beyond reasonable doubt of the alleged lengthy false imprisonment.
To succeed in establishing that one or more of the verdicts are unsafe or unsatisfactory, the applicant must demonstrate that on the whole of the evidence it was not open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of any such count.[5] Furthermore, as is made clear in M v The Queen,[6] the fact that the jury is the body entrusted with the responsibility of determining guilt or innocence, and that the jury had the benefit of seeing the witnesses, must not be disregarded. In the case to be considered by us, the complainant gave evidence before the jury over a period of more than four days. The jury deliberated over a period of two days. The manner in which they approached their task appears to me to be entirely consistent with their obligation to consider each count and the evidence relating to that count separately.
[5]Chamberlain v The Queen [No 2] (1984) 153 CLR 521, 532; M v The Queen (1994) 181 CLR 487, 493.
[6]M v The Queen (1994) 181 CLR 487, 493.
The fact that they acquitted on some counts, and not on others, does not call into question the verdicts of guilty. Indeed, in the circumstances of this case, it appears clear that the jury entertained a reasonable doubt in relation to those circumstances, where no evidence other than that of the complainant was before them. The fact that they were not satisfied beyond reasonable doubt of the reliability
and/or credibility of the complainant in relation to some parts of her evidence does not mean that they could not have been satisfied beyond reasonable doubt as to other matters, and in particular as to those aspects of her evidence which had some evidentiary confirmation. In my view there is no basis to say that the verdicts in question are unsafe.
It follows that in my opinion the application for leave to appeal should be dismissed.
KAYE AJA:
I have had the advantage of reading in draft the reasons for the judgment of Kellam JA. For the reasons given by his Honour I agree that the application for leave to appeal against conviction should be dismissed. I seek only to add a few observations in relation to the submissions made in respect of ground 1.
For the reasons given by Kellam JA I do not consider that the applicant has made out any basis upon which a special warning ought to have been given to the jury concerning the evidence of the complainant. The matters relied upon by the applicant were essentially matters pertaining to the complainant’s credit. All of those matters were capable of being clearly understood by the jury without the assistance of a special direction from the trial judge. Counsel for the applicant relied particularly on the circumstance that the complainant had admitted to telling lies on oath at the committal proceeding. I do not accept the submission that the jury might not have appreciated the implications of that admission by the complainant, unless it received specific instruction by the trial judge that the complainant had thereby admitted committing a serious criminal offence. In my view that submission does a serious injustice to the commonsense and intelligence of modern juries.
In the present case, the various verdicts returned by the jury reflect that the jury was fully alert to the need to scrutinise the evidence of the complainant carefully and closely. In particular, in general, the jury only convicted the applicant where there was cogent evidence supporting the complainant’s account of the incident
reflected in the count on the presentment. Further, it is significant that counsel for the applicant at trial did not seek any particular direction from the trial judge of the type which is the subject of the complaint in ground 1. The applicant was represented by experienced counsel, who was no doubt well attuned to the atmosphere of the trial, and had a full appreciation of the issues which he was advancing on behalf of his client. It is significant that counsel did not apprehend that the jury would be unable to appreciate the full force of the submissions which he made as to the credibility of the complainant, without receiving a special direction from the trial judge of the kind now contended for by the applicant.
In my view, it is most undesirable that trial judges give directions of the type contemplated by ground 1, unless those directions are necessary in the circumstances of the case. Otherwise, such directions intrude on the exclusive province of the jury, namely the determination by them of the facts and the verdicts in the case. Ordinarily, juries are instructed, at an early stage in the trial judge’s charge, that they are the sole judges of the facts in the case. If the trial judge in this case had given to the jury the direction sought by ground 1, such a direction would necessarily have cut across the instruction given by his Honour as to the role of the jury in the trial.
In recent decades there has been a proliferation of the type of directions which appellate courts have required trial judges to give to juries in criminal trials. It is important that there be no unnecessary addition to that process. Each time a trial judge feels obliged to give a special direction to a jury of the type described in ground 1, there is a risk that the giving of any such direction can undermine and detract from other directions which are of greater importance in the context of the trial before that judge. In this case, the trial judge was clearly well alert to the credit issues which were at stake. His Honour gave detailed and careful instruction to the jury as to the nature of those issues, and he outlined to the jury the context in which those issues fell for their determination. It was not for his Honour to give any further direction to the jury, and in my view he was correct in refraining from doing so.
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