R v Sorenson

[2019] SASCFC 13

Supreme Court of South Australia

(Court of Criminal Appeal)

R v SORENSON

[2019] SASCFC 13

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Bampton and The Honourable Auxiliary Justice David)

14 February 2019

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED

CRIMINAL LAW - PROCEDURE - VERDICT - ALTERNATIVE VERDICTS - DIRECTIONS TO JURY

CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - BURGLARY, HOUSEBREAKING AND LIKE OFFENCES - ALTERNATIVE VERDICTS

Application for permission to appeal against a conviction for aggravated robbery.  The applicant and her two co-defendants were convicted by a jury of aggravated robbery but acquitted of rape.  The applicant seeks permission to appeal on two grounds: that the verdict of the jury was unsafe and unsatisfactory because of inconsistencies in the complainant’s evidence; and that the trial Judge erred in not leaving to the jury an alternative verdict of aggravated assault to the charge of aggravated robbery.

Held per David AJ (Kourakis CJ and Bampton J agreeing), refusing permission to appeal on both grounds and dismissing the appeal:

1. The inconsistencies in the complainant’s evidence were laid clearly before the jury to assess.  There is no reason to interfere with that assessment.

2. The decision of defence counsel not to ask for the alternative verdict of aggravated assault to the charge of aggravated robbery to be left was in the best interests of the applicant.

3. The events rose and fell together, and it would be a perverse verdict if the jury had a reasonable doubt about the complainant’s evidence concerning the theft but found it proved beyond reasonable doubt that she was assaulted.

Criminal Law Consolidation Act 1935 (SA) s 137, s 48, referred to.
M v The Queen (1994) 181 CLR 487; Libke v The Queen (2007) 230 CLR 559, applied.

R v SORENSON
[2019] SASCFC 13

Court of Criminal Appeal:  Kourakis CJ, Bampton J and David AJ

1. KOURAKIS CJ.    I would refuse permission to appeal for the reasons given by David AJ.

2. BAMPTON J.       I agree with the reasons of David AJ.  I would refuse permission to appeal and dismiss the appeal.

   DAVID AJ.

   Introduction

3. This is an application for permission to appeal against a conviction for aggravated robbery.  The applicant was charged jointly with Rebekah Merchant and Skye Spears with one count of aggravated robbery and one count of rape of a woman (whom I will refer to as “V”).  All three were convicted by verdicts of a jury of aggravated robbery but acquitted of rape. 

4. A single Judge of this Court refused permission to appeal.  Neither of the other two defendants have sought permission to appeal.

5. This application focuses on whether the verdict of the jury was unsafe and unsatisfactory and whether the trial Judge erred in not leaving to the jury an alternative verdict of aggravated assault to the charge of aggravated robbery. 

   The charges

6. I set the charges out in full, including the count of rape of which the three defendants were acquitted:

   First Count

   Statement of Offence

   Aggravated Robbery. (Section 137(1) of the Criminal Law Consolidation Act, 1935).

   Particulars of Offence

   Rebekah Merchant, Ashleigh Sorenson and Skye Spears on the 11^th day of December 2014 at Elizabeth East used or threatened to use force against [V] in order to commit the theft of a handbag, two gold chain bracelets, a gold ring and a Samsung mobile phone and the force was used, or the threat was made, at the time of, or immediately before, the theft.

   It is further alleged that Rebekah Merchant, Ashleigh Sorenson and Skye Spears committed the offence in company with each other.

   Second Count

   Statement of Offence

   Rape. (Section 48(1) of the Criminal Law Consolidation Act, 1935).

   Particulars of Offence

   Rebekah Merchant, Ashleigh Sorenson and Skye Spears on the 11^th day of December 2014 at Elizabeth East engaged or continued to engage in sexual intercourse with [V] by inserting an object into her vagina, without [V’s] consent to engaging in sexual intercourse, knowing or being recklessly indifferent to the fact that she was not so consenting.

   [Amended this 9^th day of July 2018].

   The trial

   The prosecution case

7. The case presented by the prosecution at trial relied principally on the evidence of V.  She said that she was best friends with Ms Merchant and, at the relevant time in December 2014, she had a son in the care of her sister.  She was working with Families SA to have him returned to her care as it was clear from her evidence that she had a drug problem.

8. V gave evidence that in December 2014 she was on good terms with Ms Merchant, whom she had known for a long time.  She knew the defendant, Ms Spears, even before she met Ms Merchant, having been in a brief relationship with her.  V also said in evidence that she had sold a lounge to both Ms Spears and Ms Merchant for $80, but had never been paid. 

9. V gave evidence that prior to December 2014 she had known the applicant for about two years.  Their relationship was basically drug-based, as they bought, sold, and used drugs together.  On occasions, however, she would allow the applicant and the applicant’s son to stay at her place to escape the applicant’s boyfriend, who was brutal to her.  V said in evidence that she did not owe any money to any of the defendants.

10. V said that on 11 December 2014 the applicant called her, saying she was outside of her house and was going to damage both V’s house and her car.  V was not at home at the time and called the police.  After that call from the applicant, V then received a call from Ms Merchant who told her that the applicant had attended at Ms Merchant’s unit to collect the money which both Ms Merchant and Ms Spears owed to V for the couch.  Evidently, that was to satisfy a debt which, according to the applicant, V owed her for drug money.  As indicated, V denied owing any money to the applicant.  V gave further evidence that during that phone call Ms Merchant told V that when V arrived at her own unit, to where she was travelling, Ms Merchant would meet her and they would eventually drive to Ms Merchant’s unit.   Eventually, V drove to the unit with Ms Merchant.  V gave evidence that she was wearing two gold bracelets, one or two gold rings, and gold sleepers.  V brought with her some cans of alcohol. 

11. When they got to Ms Merchant’s premises they went into the lounge room, and Ms Spears was there.  Ms Merchant started a conversation concerning the applicant.  V gave evidence that during that conversation she referred to the applicant as “a dog” and that she had stolen Christmas presents. 

12. According to V’s evidence, the applicant then came out of one of the rooms with a smile on her face.  V gave evidence that she thought she had been set up.  V said to Ms Spears and Ms Merchant, “Youse have set me up”.  She then gave evidence that the applicant walked towards her and punched her in the face, as did Ms Merchant and Ms Spears.  V tried to reach her phone, which was in her bra, but heard Ms Merchant say, “It’s already gone”.  Ms Merchant then made V take all of her jewellery off and give it to her.  Ms Spears left the room to get a razor as they indicated that they were going to shave her hair off.  This did not eventuate.

13. V gave evidence that while this was going on she was on the floor being kicked, after her jewellery had been taken off her.  At one stage, V tried to get to the door and open it, but all three accused were still striking her and V was bleeding onto the floor.  She said she was being hit mainly on the head and she was trying to protect her face.  V pleaded with the three of them to stop because she had to go to the Family Court two days later in relation to custody of her son and did not want to have bruises all over her face.  V gave further evidence that the three rubbed a picture of her son over her face and said words to the effect that that was as close as she would ever get to him.

14. She gave further evidence that two of the defendants held her down while one stomped on her head.  She was also struck by a can.  V then gave evidence that her pants were pulled down and something cold penetrated her vagina, but she could not be sure what it was.  One of the defendants said words to the effect that she was a dirty hooker.  V then gave evidence that she managed to get back up and was trying to break the chain on the front door, but Ms Merchant put her hand in V’s bra and tried to grab her nipple ring to stop her.  V then grabbed the applicant’s phone, which the applicant had put down, took it into another room and locked the door.  Ms Merchant’s dog was in that room and was licking blood off her.  She tried to ring the authorities on the phone, but the three defendants forced the door open and ended the call before she could get through to the police. 

15. V was eventually able to get out of the unit and ran downstairs.  All three defendants followed her out of the unit.  V ran to a park where she saw a lot of council workers, but they got into their trucks and locked the doors and wanted to have nothing to do with what was happening.  She was eventually assisted by a pregnant woman and an ambulance was called.  V suffered significant injuries, including a ripped right ear, which necessitated surgery, and a black eye.  Photographs were taken of those injuries and were a prosecution exhibit. 

16. V made her first complaint of rape to her mother some months after December 2014, just before she had a meeting with the Director of Public Prosecutions.  While V was at the hospital after the assault, she was asked if she had been sexually assaulted and said “No”. 

17. V was cross-examined extensively by all counsel for the three defendants.  It was established that she was a regular user of methylamphetamine, that she was drinking excessively in the time leading up to the events which were the subject of the charge, and she had been diagnosed with a borderline personality disorder which caused her to be aggressive.  She agreed that she has suffered from self-harm, but had not done that for a number of years prior to the trial.

18. It was put in cross-examination that the events at Ms Merchant’s unit did not occur in the way described by V and, in fact, V was the aggressor, consistent with the evidence presented by the applicant and the defendant, Ms Merchant.  V denied those assertions. 

19. Evidence was called from a crime scene officer, Brevet Sergeant Flitton, who took photographs of V at the Lyell McEwin Hospital.  He also attended at Ms Merchant’s Yorktown Road unit and noticed and photographed bloodlike stains at the scene.

20. A police officer, Brevet Sergeant Vandongen, gave evidence of observing V’s car earlier in the day when he attended at her home address pursuant to the telephone call described above.  He observed damage to V’s car and lacerations to one of her ears and blood around the back of her ear, as well as swelling to her face, later that day.  He took a statement from V and, significantly, she did not mention sexual assault.

21. Detective Hawgood attended at Yorktown Road and noticed droplets of blood in the stairwell. 

22. V’s mother gave evidence of seeing her daughter at the Lyell McEwin Hospital on the day in question and noticing injuries that had not been there earlier in the day.  It was only later that her daughter made a complaint about rape.

23. As can be seen, the prosecution case relied almost solely upon the evidence of V.

24. I turn to a summary of the applicant’s case at trial. 

    The defence cases at trial

25. Both the applicant and Ms Merchant gave evidence at trial.  Ms Spears elected to remain silent.  Although she has not appealed, Ms Merchant’s evidence was evidence that could be used by the jury in the case as a whole and was, of course, favourable to the applicant.  I outline her evidence.

26. Ms Merchant gave evidence that in December 2014 she lived at the Yorktown Road unit with Ms Spears.  She said that she had met the applicant through Ms Spears on 11 December 2014 and had previously met V.  She gave evidence that on previous occasions she had witnessed V self-harming and observed that she was a user of methylamphetamine and cannabis, as well as being a heavy drinker. 

27. She gave further evidence that V contacted her on 11 December 2014 and wanted to come to her premises to discuss her court case.  There was no discussion about any money owed by V to Ms Merchant or anybody else.  Ms Merchant met V at the car park and the two walked to Ms Merchant’s unit.  They were having a drink and V was sitting on her couch.  The applicant was in the bathroom when they attended.

28. Ms Merchant gave evidence that V had an “outrage of anger” and moved towards the applicant as she came out of the bathroom, placing her hand on the applicant’s face and pushing her head towards the door.  Ms Merchant was upset and angry that V had attacked someone in her home and defended the applicant by pulling V away and then punching her.  She then gave evidence that V threw herself onto the floor, screaming, crying, ripping her hair, slapping herself, and saying that she felt betrayed.  Ms Merchant said that she was aware of V’s mental issues and had attended an appointment with her. 

29. Ms Merchant denied taking V’s jewellery and bag and said that V did not have a bag with her when she attended.  She denied taking her phone and she did not see anybody else take it.  She denied raping, stealing or bashing V, but did admit to hitting her to defend the applicant.

30. She gave further evidence that V locked herself in one of the bedrooms, indicating that she was going to kill herself, before Ms Merchant was able to get into the room to speak to her.  She eventually left.

31. The applicant gave evidence that she lived at Tudor Crescent, Smithfield Plains with her then nine-year-old son in December 2014.  She had just ended a domestic violence relationship with her partner, “W”, in November 2014 and believed that V could be a person responsible for passing on information about her to W.  She gave evidence that, in the days leading up to 11 December 2014, V had seen her daily and, in fact, stayed at her home on 10 December.  She thought that V was in contact with W and felt betrayed by this.  She left a message on V’s phone concerning the feeling of betrayal. 

32. The applicant gave further evidence that on 11 December 2014 she was on her way to the Elizabeth City Centre when she received a message from Ms Spears, so she stopped in at her unit to see her.  Ms Spears introduced her to Ms Merchant.  While she was there, the applicant asked to use the bathroom.  When leaving the bathroom, she noticed that V was on the couch.  V got up and quickly came towards her and the applicant felt like she was going to be attacked.  According to the applicant, V pushed her against the bathroom door and pushed her open hand into her face.  The applicant said V was pressed up against her, close enough to suffocate her.  It was established that the applicant weighed 44 kg at that time and V was about 80 kg. 

33. The applicant said in evidence that V was accusing her of stealing from her house.  She then described V’s behaviour as being quite irrational and said that eventually V went into the bedroom and was screaming.  According to the applicant, Ms Merchant was then trying to get into the bedroom.  She eventually did so and talked to V in the bedroom for less than five minutes, after which V walked out of the unit.  The applicant did not notice any blood on V when she left the unit, and was confused as to why these events had happened. 

34. The applicant denied hiding in the bathroom as described by V.  She denied starting the incident by punching V.  She denied removing any of V’s jewellery or holding her down while somebody else inserted something into her vagina.  She denied that V was kicked and punched while on the ground or in the bedroom.  Her evidence and the evidence of Ms Merchant was totally at odds with the evidence of V. 

    Appeal

35. There are two grounds of appeal upon which permission is sought:

    1.The verdict is unsafe and unsatisfactory.

    2.That in all of the circumstances, the learned Trial Judge should have directed the jury on the alternative verdict of aggravated assault.

    I will deal with each of them in turn.

    Ground 1 – the verdict is unsafe and unsatisfactory

36. The law is well settled as to whether a verdict is unsafe and unsatisfactory and is set out clearly by Hayne J in the case of M v The Queen,[1] with which Gleeson CJ and Haydon J agreed in Libke v The Queen as follows:[2]

    But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt.  It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.

    (Emphasis in original, footnote omitted)

    [1] (1994) 181 CLR 487 at 492-493.

    [2] (2007) 230 CLR 559 at [113].

37. Ms Demertzis, counsel for the applicant, argued that the jury must have entertained a reasonable doubt because of the inconsistencies and inadequacies of the evidence of V.  She emphasised that it was an agreed fact at trial that none of the jewellery alleged to have been stolen was recovered.

38. She put in argument that there were certain inconsistencies in the story of V and, as a result, the jury must have entertained a reasonable doubt about her evidence as a whole.  She emphasised that in evidence-in-chief in the trial V said that two gold bracelets, one or two rings, and a sleeper were the jewellery that she was wearing.  In a previous trial, which was aborted, there was a different story in that it was a necklace and not a ring and two bracelets.  When spoken to by the police on 16 June 2015 in relation to the events at the unit, V said that when she came out of the bathroom, Ms Merchant demanded that she take off her jewellery before she was assaulted.  This, of course, is at odds with her evidence-in-chief at the trial, which was that she was assaulted before the jewellery was removed.  She was cross-examined about that inconsistency. 

39. A further inconsistency pointed out by Ms Demertzis was that when the premises was inspected there was damage to a lock of an internal door, as distinct from V’s evidence that she damaged the front door lock as she was trying to exit. 

40. The trial Judge, in his directions to the jury, clearly pointed out a number of inconsistencies to be taken into account when assessing V’s evidence.  He pointed out the inconsistency about what jewellery she had on.  He pointed out that V said in evidence that she was on the floor twice, but when interviewed by Detective Brevet Sergeant Putsey she said she was on the floor once after the jewellery had been taken from her.  A further inconsistency pointed out by the trial Judge was that V said on one occasion that the applicant was wearing an Adidas T-shirt, but later said that it was a Nike T‑shirt.  The trial Judge also mentioned the inconsistency about the lock being broken.

41. Ms Demertzis also submitted that V’s history with drugs and her mental condition combined with these inconsistencies are such that a jury must have had a reasonable doubt consistent with the criteria set out in M v The Queen and Libke v The Queen above. 

42. A further consideration is the fact that the jury acquitted all three accused of the charge of rape.  The applicant does not raise this as a separate ground of appeal, namely, a complaint about inconsistency of verdicts.  However, it is argued that if the jury considered that V was unreliable about her evidence in relation to the rape, that is a further factor to be considered when assessing whether the verdict was unsafe and unsatisfactory.

1. It is to be noted, however, that the trial Judge gave a very clear direction to the jury about separate consideration of the charges.  He said:

   [49]Nor does it follow, where an accused person is charged with more than one offence that, just because you are satisfied that she is guilty of one of the two counts charged, she is also guilty of the other.  So I stress: you must take the cases against each of the three accused quite separately, consider the evidence quite separately, and ask yourselves whether, having regard to such facts and circumstances that you find proved, you are satisfied of the guilt of the particular accused on that particular count.

   [50]I add this: if you are not satisfied of the reliability of the evidence of [V] in respect of one of the counts, then you should consider whether her lack of reliability on that count causes you to feel any doubt about her reliability on the other count.  But, having said that, I emphasise that you must consider each of the counts quite separately and you must consider the case against each of the three accused quite separately.

2. Furthermore, the evidence presented in relation to the charge of rape from the prosecution point of view suffered from difficulties which did not apply to the charge of aggravated robbery and are consistent with the jury’s verdict on that count.  In particular, V made no complaint about any form of sexual attack for about two months after the event.  She had ample opportunity to do so, both to the police and at hospital.  The aggravated robbery charge was supported by the evidence of her physical condition.

3. Considering all of these arguments, I am of the view that it cannot be said that the jury must have entertained a reasonable doubt.  All of the evidence was clearly before the jury and there was a stark contrast between the versions of events.  The version given by V was supported by the objective evidence of damage to her eye and ear and the suggestion that she self-harmed to that extent was obviously rejected by the jury as implausible.  The inconsistencies and use of drugs and general behaviour of V were laid clearly before the jury to assess.  In my view, there is no reason to interfere with that assessment.

4. I would refuse permission on this ground.

   Ground 2 – that in all of the circumstances, the learned Trial Judge should have directed the jury on the alternative verdict of aggravated assault

5. At common law, aggravated assault is an alternative verdict to the charge of aggravated robbery.  There was discussion between the trial Judge and counsel, in particular defence counsel, as to whether that alternative verdict should be left.  Counsel for the applicant initially said that it should be and then reconsidered and submitted that it should not be left.  Part way through his charge to the jury, the trial Judge received a note from the jury which read:

   In the SAPOL interview of 12 December 2014 it was stated that [the applicant] was to be charged with aggravated robbery and aggravated assault.  Can your Honour explain if these two charges have been aggregated into the one count of aggravated robbery?

   In answer to that question, the trial Judge said:

   It is not a question of there being two separate offences.  The one offence charged is aggravated robbery and that includes, as one of its elements, the use of force to accomplish the theft.  All right?

6. Ms Demertzis now argues that the jury seemed concerned about the difference between theft and robbery and the alternative should have been left.

7. In my view, the decision of defence counsel not to ask for the alternative to be left was a sensible one.  It was clearly in the best interests of his client.  As it was left to the jury, even if they accepted it proved beyond reasonable doubt that there was an assault in the terms described by V, if there was a reasonable doubt about the items of jewellery being taken, the defendants would then be acquitted of the major charge and any other charge.  It is difficult to see how the matter being left in that way could in any way prejudice any of the accused, in particular the applicant.  Furthermore, that forensic decision was justified by the nature of the case in that the factual basis was that these events really rose or fell together.  It would seem to be a perverse verdict if the jury had a reasonable doubt about V’s evidence concerning her jewellery being taken but found it proved beyond reasonable doubt that she was assaulted. 

8. I find no merit in the argument.  I would refuse permission on this ground.

   Conclusion

9. I would refuse permission to appeal and dismiss the appeal.