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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Wiggins, Scott Lyle

Details

AGLC: R v Wiggins, Scott Lyle [2001] NSWCCA 60
Case: [2001] NSWCCA 60
Decision Date: 15 March 2001

CaseChat Overview and Summary

The case of R v Wiggins, Scott Lyle involved an appeal against conviction for sexual intercourse without consent. The dispute centred on whether the complainant was asleep at the time of the incident. The High Court of Australia was tasked with considering the appeal on the ground that the verdict was unreasonable, particularly in light of the evidence presented by Tracey Christine O’Rourke, Simon Peter Graham, and the appellant himself. The appellant did not contest the trial's conduct, the admission of evidence, or the jury's directions. Instead, the appeal focused solely on the reasonableness of the jury's verdict based on the evidence provided.

The legal issues before the court were whether the verdict was unreasonable given the evidence, and if the trial judge's assessment of the witnesses' credibility was appropriate. The court examined the principles established in Fleming v The Queen (1998), Jones v The Queen (1997), and M v The Queen (1994), which guide the evaluation of jury verdicts in light of the evidence. Additionally, the court referenced R v Carbone (2000) to consider the trial judge's remarks on the credibility of the witnesses. The appellant argued that the jury's conclusion was unreasonable because it overlooked critical evidence indicating the complainant was asleep, while the prosecution maintained that the jury's decision was based on a reasonable assessment of the evidence.

The court concluded that the verdict was not unreasonable. It found that the trial judge had appropriately considered the evidence, including the testimonies of Tracey Christine O’Rourke, Simon Peter Graham, and the appellant. The court held that the jury's decision was within the realm of reasonableness, taking into account the conflicting testimonies and the trial judge's assessment of the witnesses' credibility. The appeal was thus dismissed, and the original conviction was upheld. The court emphasized that the assessment of witness credibility and the resolution of factual disputes were within the jury's domain, provided their decision was reasonable in light of the evidence presented.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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