R v Wiggins, Scott Lyle - [2001] NSWCCA 60

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: R v Wiggins, Scott Lyle [2001] NSWCCA 60 revised - 20/03/2001

FILE NUMBER(S):
60310/00

HEARING DATE(S): 22 February 2001

JUDGMENT DATE: 15/03/2001

PARTIES:
Regina v Scott Lyle Wiggins

JUDGMENT OF: Mason P Giles JA Whealy J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 99/11/1202

LOWER COURT JUDICIAL OFFICER: Davidson DCJ

COUNSEL:
P Byrne SC - Appellant
M C Marien - Crown

SOLICITORS:
Hughes & Taylor - Appellant
S E O'Connor - Crown

CATCHWORDS:
APPEAL AGAINST CONVICTION - sexual intercourse without consent - essential conflict over whether complainant asleep at the time - appeal on ground verdict unreasonable - on consideration of facts, not unreasonable - Fleming v The Queen (1998) 197 CLR 250, Jones v The Queen (1997) 191 CLR 439 and M v The Queen (1994) 181 CLR 487 applied - regard to be had to trial judge's remarks as to credibility of witnesses - R v Carbone (2000) NSWCCA 387 referred to. D

LEGISLATION CITED:

DECISION:
Appeal dismissed.

JUDGMENT:

IN THE COURT
OF CRIMINAL APPEAL

CCA 60310/00
DC 99/11/1202

MASON P
GILES JA
WHEALY J
Thursday 15 March 2001

REGINA v Scott Lyle WIGGINS

JUDGMENT

MASON P: I agree with Giles JA.
GILES JA: The appellant was found guilty on a charge of sexual intercourse without consent. The three elements in the charge were (i) having intercourse; (ii) without the consent of the complainant; (iii) knowing that the complainant was not consenting. It was common ground that intercourse had taken place in that there had been penetration of the complainant. On the Crown case, the penetration had occurred when the complainant was asleep, and of the other two elements in the charge she had not consented and the appellant had known that she was not consenting. The appellant gave evidence. He maintained that the complainant was not asleep at the time, and that she behaved in a manner which showed that she consented and led him to believe that she was in fact consenting to the intercourse.
The appellant acknowledged the propriety of the conduct of the trial, and his appeal was not concerned with the admission of evidence or the directions given to the jury. The sole ground of appeal was -
“The verdict of the jury is, having regard to the evidence, particularly to the evidence of Tracey Christine O’Rourke (p 51 ff), Simon Peter Graham (p 154 ff) and the appellant (183 ff), unreasonable”.
Material evidence in summary
The relevant events occurred at or after a New Years Eve party given by Mr David Campbell and his then girlfriend Ms Katherine Stephenson, now his wife, on 31 December 1998 - 1 January 1999. The party was held at the home of Mr Campbell’s parents. It was attended by the complainant, the appellant, and many other persons, including the appellant’s girlfriend Ms Tracey O’Rourke, Mr Simon Graham, Ms Nicole Rigg, Mr Peter Frazer and Mr Matthew Pittard. Most of those attending, including the complainant and the appellant, had gone to school with one another and had been friends for a number of years. The persons I have mentioned were in the range 22-26 years of age.
The complainant arrived fairly late at the party, having had an argument with her boyfriend and left him to go to the party alone. The appellant and Ms O’Rourke were already at the party when the complainant arrived. An alcoholic punch, home brewed beer and other alcoholic drinks were consumed, as were jellies and pieces of watermelon made with and soaked in liqueurs. At midnight those at the party hugged and kissed, and then many of them began to use the swimming pool and spa. The complainant and the appellant were among them. The complainant changed into a one piece swimming costume and wore board shorts over it. The appellant wore a swimming costume.
At a time which the complainant put at about 2 am she left the swimming pool and went to the bedroom in which she had arranged to spend the night. The bedroom was on the first floor of the house, and was designated bedroom 3 at the trial. Next to the bedroom, between it and the bedroom designated bedroom 2 at the trial, was a bathroom. The complainant took off her board shorts and put a dress over her swimming costume, a loose fitting knee length dress with buttons down the front. She was affected by alcohol, and felt unwell. She went to the bathroom and vomited repeatedly in the toilet. According to the complainant, she then went to bed and slept.
The complainant thought that at one stage she was woken by Mr Graham, who asked her how she was. She said that told him she was okay and just needed to sleep, and closed the door and got back into bed and went back to sleep. Mr Graham said that he went to get changed in the bathroom and knocked on its door, and that the complainant opened the door and he saw some vomit on a towel and around the toilet basin. He said that he spoke to the complainant briefly and saw her get into bed, pulled the bed covers up over her, and closed the door to bedroom 3 as he left.
The complainant’s evidence then was -
“CROWN PROSECUTOR: Q. And what happened next once you’d got back in the bed and pulled the covers back over?
A. Next thing I remember hearing was just this screaming and yelling and I also remember Scott being on top of me. I know it sounds like really bizarre because people have said to me ‘How can you not know there was someone on you?’, but the thing that stood out so much at first was Tracey, Scott’s girlfriend had walked in and she was yelling out that I was a slut, and all this sort of stuff.
Q. I’ll just stop you there [name of complainant], we’ll take it a bit slower. You heard yelling - sorry - you said that you remember going back to bed and pulling the covers over you, and then the next thing you remember is this yelling and screaming. Do you have any idea what’s the time gap between you going back to bed, pulling the covers over you and hearing this yelling and screaming?
A. I’d say probably about two hours, because I think when I got back to bed in - I’d been to the bathroom - I think it was about two thirtyish, and I think this happened at about 5.
Q. The yelling and screaming, whose voice was it that you heard?
A. Tracey’s, Scott’s girlfriend.
Q. Could you remember whether she was saying anything, or was it just a yell, screech?
A. It was a screeching and I remember her saying something about “How could you do this to me Scott?” and then yelling out “You slut” to me.
Q. What did you notice about Scott at that particular time that you heard the yell?
A. He was lying on top of me, he was also inside me.
Q. When you say ‘inside’ what do you mean by ‘inside’?
A. He had his penis inside my vagina.
Q. Did you notice anything about your clothing at that particular stage?
A. I was still - had my swimmers and everything on, I hadn’t taken any of my clothes off.
Q. When you say Scott was on top of you, was he physically lying on top of you, or how was he actually positioned?
A. Just straight on top of me. My legs were flat on the bed.
Q. And what happened after you heard that scream and that yell, what happened next that you can remember?
A. I remember him like not getting off, I just kept thinking just please get off me, but I was in, like shock, I couldn’t move, and eventually I think someone came in and dragged him off and he pulled him outside.”
The complainant said that she was lying flat on her back in the bed when the appellant was lying on top of her. She heard “a lot of screaming and yelling” in the hallway outside the bedroom, and recognised the voices of the appellant, Ms O’Rourke, and she thought also Mr Campbell and Mr Graham.
In cross-examination the complainant’s attention was drawn to a statement she had made to the police on 3 January 1999. The evidence was -
“Q. If I may, I’ll just remind you of the exact words you used to the police and see if you agree that that’s literally what you told them - you said this, at page 4 of your statement ‘I can’t remember anything else until I was awoken to a very loud screaming, it was a loud shrieking, it was continual. I then looked to where it was coming from and I saw Tracey standing near the doorway screaming. She said “Scott, how could you do this to me?”’ and then she apparently added the words ‘You slut’,” that’s what you told the police didn’t you?
A. Yes.
Q. And then you said ‘I then turned to see what she was yelling at and I saw Scott was lying on top of me’, that’s the way you described it to the police didn’t you?
A. Yes.”
The complainant agreed that she told the police this, but said it took four hours to make her statement, and that “it all happened immediately, but when they want to know word for word what you remember it takes a while to get it down on paper”. She said, “I know on paper it reads like it took a long time, but it all happened at the same time, and I just tried to get it out on paper as I remembered it”.
According to the appellant, at 4.30 or 5 am he made arrangements for a room in which he and Ms O’Rourke could sleep. The room was in the basement. The appellant told Ms O’Rourke that he was going upstairs to have a shower. Although he intended to have a shower, he was also looking for the complainant and believed she was in bedroom 3.
The appellant opened the door to bedroom 3 and saw the complainant. There was filtered sunlight coming into the room through venetian blinds. He said “Hi” and sat on the bed, and the complainant touched him on the hips and back in a caressing motion; she may have mumbled but he did not recall her clearly saying anything. After a few minutes the complainant started coughing, and got up and went into the bathroom. The appellant followed the complainant and saw her bend over and wet her face. The appellant said that he saw no vomit in the bathroom. The complainant returned to the bedroom, followed by the appellant, and lay on her back on the bed. The appellant crouched next to her, leaning on the bed, and said he may have touched her arm or brushed her hair at this time.
The appellant told the complainant that he was going to have a shower, and did so. The shower took only about a minute. He returned to the bedroom wearing a towel around his waist, leaving his swimming costume in the bathroom. Again he crouched down leaning on the bed, and the complainant touched him in a caressing motion around the ribs and on the back. The appellant asked the complainant something like “Should I go, do you want me to go?”, and she continued to stroke him.
The appellant got up and closed the bedroom door, then returned to the bed and began to stroke the upper section of the complainant’s body. The complainant started to breath heavily. The appellant touched the complainant over her swimming costume in the area of her vagina and inside her legs, and her breathing became excited. He moved her swimming costume so that he could touch the outside of her vagina, and did so; he inserted his finger into her vagina, and thought because of her heavy breathing and the fact that her vagina was moist that the complainant was aroused. The appellant had an erection, and the towel was no longer around his waist. He knelt between the complainant’s legs, which were spread apart, rested the palms of his hands on the bed, and penetrated the complainant although not deeply. He was “motioning lightly into her” when Ms O’Rourke burst into the bedroom and screamed and pushed him away. He wrapped the towel around himself and left the bedroom.
The appellant said -
“Q. At the time you penetrated [the complainant’s] vagina, did you know she was asleep, did you believe her to be asleep?
A. No not at all, she definitely was not asleep.
Q. What do you believe to be the position?
A. Her position?
Q What do you believe to be the position as you’re giving evidence now, was she awake, was she asleep?
A. She was definitely awake, I’ve no doubt in my mind when I proceeded, even before I penetrated her, I was touching her with my hands, when I first stroked her breasts, the way she reacted, I had no doubt in my mind that she was definitely awake, and touching her with my hands on the inside of her legs was not a reassurance of her being awake, I knew definitely before then that she was awake and she knew I was touching her.”
In the light of this evidence it is understandable that the essential issue at the trial, and on appeal, was seen as whether or not the complainant was asleep at the time of penetration. If the complainant’s evidence were accepted she was asleep, and she did not consent and the appellant could not have believed that she was consenting. If the appellant’s evidence were accepted, the complainant was not asleep and her conduct indicated consent and justified the appellant in believing that she was consenting.
The abrupt entry of Ms O’Rourke was common to both accounts. Ms O’Rourke had gone to bed in the basement room, but had woken up to realise that the appellant was not with her. She said that she went to the kitchen on the ground floor, where she saw Mr Graham, and asked Mr Graham were the appellant was. Together they went up to the first floor and knocked on doors. Ms O’Rourke opened the door to bedroom 3 and saw the appellant kneeling on the bed on top of the complainant, wearing only a towel loosely around him. The complainant “had her back arched”, and she thought her legs were “just straight on the bed, apart”. Ms O’Rourke screamed at the appellant and the complainant and hit at the appellant, and left the bedroom screaming that they “had slept together”.
According to Mr Graham, he opened the door to bedroom 3 a little, then went to close it again because of what he saw. Ms O’Rourke was behind him and pushed past him. Ms O’Rourke agreed that it may have happened that way. Mr Graham said that he saw the appellant kneeling on the bed on his hands and knees, without any covering, and that he thought the appellant and the complainant were having intercourse “in a missionary position”. He said that -
“Q. What did you see?
A. I saw [the complainant] and Scott in the missionary position. Having sex.
Q. What did you notice about Scott at that stage, you said the missionary position but what actually was he doing?
A. I guess he had his - well slowly moving in and out with his pelvic thrusts, he had his knees in between her legs which were bent, spread, bent at the knees, he was supporting his upper body with hands and that was it.
Q. Were you able to notice anything about [the complainant’s] legs?
A. As far as -- ?
Q. Well whether they were bent, straight?
A. I couldn’t, she had her face turned the other way.
Q. What happened next?
A. Well Tracey barged past me and started yelling.”
Later Mr Graham said -
“Q. Is what you saw going on on that bed, consistent with Mr Wiggins having intercourse with someone who was asleep?
A. No it looked more like a normal type --
HIS HONOUR: Q. I’m sorry?
A. It looked more like a normal type sex act, yeah.
YOUNG: Q. Well you didn’t hear her making any noises?
A. No I didn’t, no.
Q. You couldn’t see her face?
A. That’s right.
Q. Did you notice whether she was moving at all?
A. No I didn’t.”
He could not recall whether or not the complainant’s back was arched. With Ms O’Rourke’s abrupt entry and screaming, Mr Graham said the appellant was “frozen” on the bed.
Ms Rigg and her boyfriend Mr Frazer were in bedroom 2, and Mr Campbell and Ms Stephenson (as I will continue to call her) were in the bedroom designated 4 at the trial. They were awoken by the noise, and all but Mr Frazer came out of the bedrooms and found Ms O’Rourke in her agitated condition.
Ms Stephenson saw that the complainant was lying on the bed with her eyes shut. She spoke to her and pushed her arm, and got no response. Mr Campbell shut the door to bedroom 3, with the complainant inside the bedroom alone, while the disturbance outside the room continued.
After a little while Ms Rigg knocked on the door to bedroom 3 and the complainant let her in. The complainant lay down on the bed, and Ms Rigg sat on the bed with her. The complainant was “rubbing her eyes like she was sort of a bit groggy looking and her hair on one side was all a bit matted, as if she - like, had been asleep or something and she was very quiet … “. Ms Stephenson joined them. Ms Rigg, Ms Stephenson and other witnesses gave evidence, expressed in different ways, that the complainant was extremely distressed. She was to a large extent non-responsive and not speaking or moving, her breathing was affected, and she was shaking and crying.
According to Ms Rigg, Ms Stephenson asked the complainant if the appellant had slept with her, and the complainant nodded -
“ … and this time she said, that - she looked at me and she said, ‘He could have given me anything’ and she was worried about HIV. She said ‘He could have given me HIV’ and she said, ‘I didn’t want it’.”
Part of Ms O’Rourke’s screaming had been to accuse the complainant of being a slut, and according to Ms Rigg the complainant said to her, “I’m not a slut Nick, I’m not a slut”. According to Ms Stephenson, the complainant said, “She’s calling me a slut, I haven’t done anything”. Ms Stephenson asked if the appellant had been “in there”, and the complainant said “Yes but I haven’t done anything”. Either Ms Rigg or Ms Stephenson asked, “Was Scott in bed with you?”, and the complainant repeated, “Yes, but I haven’t done anything”. Ms Stephenson left the room briefly, and when she returned asked if the appellant “had forced himself on her”, to which the complainant replied, “I didn’t want to do it, I didn’t know he was doing it”.
At a time soon after she left bedroom 3 Ms O’Rourke went down to the basement room to get her bag, and the appellant followed her. She asked the appellant “Why he did this”, and he said “that he sort of felt, found [the complainant] sort of attractive”, and there was argument between the appellant and Ms O’Rourke. They returned upstairs, Ms O’Rourke still being in an agitated state. According to Ms O’Rourke, she was told by a person or persons who must have been either or both of Ms Stephenson and Ms Rigg that the complainant “was asleep”. She taxed the appellant with this, saying that the complainant “was asleep, that she was out of it”.
Ms O’Rourke said that the appellant’s response was -
“Q. And what did he say?
A. He said he didn’t know, he was - he didn’t think that - you know he didn’t say that - he didn’t think that she was like that.
Q. Can you remember his words?
A. It was, ‘I don’t know’ I think.
Q. ‘I don’t know’?
A. Yeah.
Q. Was this around the time of the incident you told us of yesterday when you said there was - about throwing water, or something like that?
A. Yes.
Q. So just tell us again briefly, what’s the sequence of events at this stage, this is in the bathroom, just go back a little bit and tell us about this conversation and the water that you told us about yesterday?
A. I went up to the bathroom and Scott - I notice had changed into shorts and I asked him - I said, - ‘Did you know that she was asleep’ or - and he was like - he was shaking his head like, ‘I didn’t know’, he didn’t - he didn’t think that that was possible and then I threw the water on him and then he went to grab me … “
The complainant’s mother arrived and took the complainant to St George Hospital. The complainant spoke to a sexual assault counsellor and was examined by Dr Karen Harris. The complainant told Dr Harris -
“ … that she had had, in her opinion, too much to drink so she went into a room and lay in a bed alone and fell asleep. She woke at around 5.30 am to find a male acquaintance, “On top of her”, with his penis inside her vagina. She was unsure whether or not he had ejaculated and she was wearing a Tampon at the time, as she was menstruating. She stated she tried to push him off and that another person, the alleged assailant’s girlfriend, entered the room and verbally abused the victim.”

Dr Harris observed that the complainant was very distressed and tearful and upset. She found tenderness in the complainant’s lower abdomen just above the pubic bone. The external genitalia were normal. A tampon was in position and was removed.
Ms Stephenson was angered by her understanding of what the complainant had told her. The appellant, Mr Campbell and Mr Graham were on the staircase in the home, and she went to them and told the appellant to “get out”. She said that the appellant did not reply, but just looked stunned; she also put it that he looked hurt and puzzled.
Mr Campbell told the appellant that he had better leave, and went out into the street with him. Mr Campbell was not clear as to the conversation, but his recollection was that he asked the appellant “what was going on like”, and that the appellant said “Well, [the complainant] wanted to”. Mr Campbell asked “Why did you even do that with Tracey there”, and the appellant replied, “I don’t know, [the complainant] and I were mucking around together”. Mr Campbell said, that as a result of what he had been told (presumably by Ms Stephenson or Ms Rigg), he said to the appellant, “She wasn’t awake she didn’t want to do it”, as to which there was no response.
Mr Frazer was outside, and encountered the appellant and Mr Campbell in the street. He had been told about events inside the house, although what he had been told is not known, and he said something to the appellant like “What did you do that for?”. The appellant answered to the effect, “I thought it was okay”.
Later on 1 January 1999 Mr Campbell saw the appellant at the appellant’s home. He said that Mr Graham was also present. There was conversation about what had happened at the Campbell home, Mr Campbell’s impression of which was summed up as “Scott denied raping [the complainant], saying that she was playing up to him during the night and she wanted it”. He asked the appellant, “Did she ever say she wanted to do this”, to which the appellant replied, “When I went in there I was hugging her on the bed and she was rubbing me on the back and I asked her if she wanted me to stay but she didn’t answer”. Mr Graham did not give evidence of this occasion.
Ms O’Rourke spoke to the appellant on the telephone on 2 January 1999. She asked him, ‘How did it happen?”. He said, “Do you want to know?”, and she said yes. The appellant said, “I was going to have a shower, when I finished I saw the door was open and went in, she started to stroke my back and I asked her if I should leave”. Ms O’Rourke immediately said “That’s a cop out”, and brought the conversation to an end.
Mr Pittard had left the party at about 3.15 am. He had heard that something had happened thereafter, and telephoned the appellant on 2 January 1999. He asked what had happened, and -
“A. I don’t remember the exact words that he used no. I do remember him telling me that later in the evening, after they’d been in the pool, Scott and [the complainant] had been mucking around in the pool together, they’d had a few more drinks. Scott and Tracey had gone off to their room and after that, Scott said he didn’t know why he did it, but he headed up to [the complainant’s] room and went in there and started talking to her, sat down on the bed next to her and yeah they were - he sort of asked if she wanted him to leave and he told me that she rubbed his back and his arm a couple of times affectionately and then just as things started to happen, Tracey O’Rourke walked into the room.”
Three further aspects of the evidence should be mentioned.
According to the appellant, while he was in the spa with a number of other persons in the early hours of 1 January 1999 the complainant’s legs brushed against him and she touched him on the inner thigh. The complainant denied such an occurrence.
According to the complainant, she and the appellant were the only persons in the swimming pool just before she went up to bedroom 3. He said something to her which made her feel sorry for him, so she gave him a hug, and the appellant put his hand between her legs. This caused the complainant to leave the swimming pool and go up to bedroom 3. The appellant’s account of such an incident was different. He said that he brushed past the complainant while swimming, they were making consistent eye contact, and they hugged. Their groins were touching and he touched her in the area of her groin. There was not an adverse reaction, but rather the complainant said, “I guess you’re not thinking of Tracey now”. After they both left the swimming pool they returned to the spa, where the complainant sat close to him with their legs touching.
Mr Pittard gave evidence that he saw the appellant and the complainant together in the spa, and saw the complainant touch the inside of the appellant’s thigh on more than one occasion, rubbing the appellant’s thigh “most of the way up”.
The ground of appeal
The statutory basis for the appellant’s ground of appeal is s 6(1) of the Criminal Appeal Act 1912, whereby an appeal against conviction must be allowed if the court is -
“ … of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, … or that on any other ground whatsoever there was a miscarriage of justice”.
In Fleming v The Queen (1998) 197 CLR 250 at 256 it was emphasised that close attention must be paid to the language of s 6(1), and that the common usage of the potentially confusing phrase “unsafe and unsatisfactory” to cover the several different elements in the sub-section is liable to mislead. The appellant’s ground of appeal was framed in terms of the first of the elements.
Jones v The Queen (1997) 191 CLR 439 at 452 endorsed what had been said by the majority in M v The Queen (1994) 181 CLR 487 at 492-4 as the test for determining whether a verdict is unsafe or unsatisfactory. The court must determine whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. It must do so not merely by examining the transcript of evidence and the exhibits, but must pay full regard to the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the consideration that the jury has had the benefit of having seen and heard the witnesses. Their Honours said (M v The Queen at 494) -
“In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. 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.”
The submissions of both the appellant and the Crown took these principles as the guide to this Court’s task. The appellant invited the conclusion that the evidence in support of the Crown case was sufficiently suspect and that other evidence to the contrary of the Crown case was sufficiently strong that the verdict of the jury was unreasonable. He submitted that on the whole of the evidence the jury should have entertained at least a reasonable doubt about his guilt; further, he submitted that the evidence contained such discrepancies and inadequacies, and so lacked probative force, as to justify this Court concluding that there is a significant possibility that he had been convicted although innocent. Reliance was also placed on an observation by the trial judge in his remarks on sentence apparently referable to Ms Stephenson and Mr Graham -
“In reaching their verdict, the jury rejected your account and also rejected the versions of two witnesses, witnesses whom I regard as credible which tended to support your account.”
Discussion
The appellant pointed to a number of matters in support of his submissions.
The complainant’s account lacked credibility, it was said, in the way she told the police that she first saw Ms O’Rourke standing near the doorway and then turned to see what she was yelling at and “I saw Scott was lying on top of me”. It was scarcely credible, it was said, that the first realisation on awakening was not the intrusive presence of the appellant. Further, it was said that what the complainant told the police was different from what she told Dr Harris, in that her first recollection as told to Dr Harris was of the appellant on top of her.
The complainant’s evidence was also said to lack credibility because, in order that the undoubted occasion of penetration occur, there had to be removal of the bed covering from the complainant, at least some degree of disturbance of the dress worn by the complainant over her swimming costume, and then sufficient displacement of the swimming costume to permit the penetration. This, it was said, was unlikely to have occurred without waking the complainant, so the credibility of her account whereby she was not awakened was unsatisfactory.
The probative force of the Crown case suffered, it was said, because there was evidence supportive of the complainant consenting to the appellant’s approaches in bedroom 3, particularly in Mr Pittard’s evidence suggestive of a degree of encouragement earlier offered to the appellant.
The evidence of Ms O’Rourke, it was said, cast significant doubt on the complainant’s evidence. Ms O’Rourke saw that the complainant’s back was arched, and from what she saw must have considered that there was consensual intercourse - she called the complainant a slut. An arched back, it was said, was not consistent with the complainant being asleep.
The evidence of Mr Graham was also said to be inconsistent with the complainant’s evidence. He saw bent and spread legs and the apparent activity of consensual intercourse. Again, it was said that this was not consistent with the complainant being asleep.
It was said that the appellant had given an account of the events in question consistent with his evidence within a short time of the events, arguably starting with what he told Mr Campbell when leaving the Campbell home and then in more detail later that day and on 2 January 1999. It was understandable, it was said, that he would not have given an account of consensual intercourse when taxed by Ms O’Rourke at an earlier time, because he had betrayed Ms O’Rourke’s affections.
All these matters were available for the jury’s consideration, and had to be taken into consideration with much else which could be seen as negating their impact.
The complainant explained the way in which her account to the police of what she saw on awakening was expressed, in a manner which the jury was quite entitled to accept. In her evidence in chief she had said that she remembered the screaming and yelling “and also … Scott being on top of me”. This was a matter for which the benefit of seeing and hearing the complainant was particularly important. It was for the jury to take into account the likelihood or unlikelihood, in the light of the whole of the evidence, of the complainant’s account so far as it involved her continuing to sleep while her clothing was disturbed. No doubt relevant to this was the possible debilitating effect of the complainant’s consumption of alcohol and her vomiting. The jury did not have any medical evidence going to interference with deep sleep, and had to draw on its worldly experience. The evidence suggestive of earlier encouragement might be thought to have been of little significance, but again it was for the jury to address, with the assistance of seeing and hearing the witnesses, the extent to which it accepted that evidence and what significance, if any, it gave to it.
The evidence of Ms O’Rourke and that of Mr Graham was inconsistent in some respects, in particular as to the position of the complainant’s legs and the extent of sexual activity observed. Further there is no doubt that the appellant’s counsel was aware that these witnesses could be seen as favouring the appellant because still his friends (and Ms O’Rourke was still his girlfriend) - they were asked questions calculated to dispel that possibility. Again, the jury had the benefit of having seen and heard the witnesses, and could assess their reliability as observers and historians and their credibility.
There were matters which the jury were entitled to see as strongly supporting the Crown case.
The distress shown by the complainant could conceivably have been due to discovery in flagrante or the realisation that she had intruded in the relationship between the appellant and Ms O’Rourke, but the extreme extent of the distress could be seen as consistent only with the shock of unknown penetration. (I put aside the appellant’s suggestion that the complainant’s non-responsiveness was feigned sleepiness, in order to bolster a concocted story. This was realistically not open on the evidence.)
The appellant did say to Mr Campbell, “Well, [the complainant] wanted it”. There was, however, no response to the direct assertion that the complainant “wasn’t awake and didn’t want to do it”, and he told Mr Frazer only something like “I thought it was okay”. The account given to Ms O’Rourke on 2 January 1999, the first time he went into any detail, was rather different from the account given in his evidence, especially in omitting what occurred before the shower and giving the picture of an unplanned entry into bedroom 3 on seeing the door open.
Of particular significance was the appellant’s earlier response to Ms O’Rourke directly taxing him with the complainant having been asleep. The response “I don’t know”, rather than that the complainant had been awake and was a willing participant, was important even allowing for reticence in telling Ms O’Rourke what had happened. The appellant did tell Ms O’Rourke what (on his account) had really happened on the next day. When taxed with the very serious act of intercourse with a sleeping complainant, why not immediately say that she was not asleep?
The complainant expressed concern about HIV. She was menstruating at the time and wore a tampon, and the jury would be entitled to think that she would not have engaged in consensual intercourse in those circumstances. And the appellant’s reaction when taxed by Ms O’Rourke with taking advantage of the complainant while she was asleep was something to which the jury could give considerable weight.
I do not overlook the observation made by the trial judge. But his Honour went on to say that the evidence of the witnesses may have been rejected on the basis that there was “a discrepancy between their versions on the face of it and also because they were on friendly terms with you”. In R v Carbone (2000) NSWCCA 387 it was said that the Court should give careful attention to views expressed by the trial judge as to whether they would or would not have found an accused person guilty, but that it was not bound to act in accordance with those views “since that would be to risk compromising the system of trial by jury”. In the present case the trial judge’s observation was not as to guilt or innocence, but as to his view of two witnesses, and was then qualified. I do not think that his Honour’s observation materially assisted the appellant, because it was for the jury to determine credibility and, as his Honour recognised, the jury must have been of a different view.
Directing myself in accordance with what was said in M v The Queen, I do not think that the verdict of the jury was unreasonable. In my opinion, therefore, the appeal should be dismissed.
WHEALY J: I agree with the reasons of Giles JA and the order that he proposes.
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LAST UPDATED: 20/03/2001