Regina v Davidson

[2003] NSWCCA 11

CITATION:	Regina v Davidson [2003] NSWCCA 11
HEARING DATE(S):	18 October 2002
JUDGMENT DATE:	11 February 2003
JUDGMENT OF:	Giles JA at 1; Bell J at 2; Smart AJ at 3
DECISION:	Appeal against conviction dismissed. Leave to appeal against sentence granted; appeal dismissed.
CATCHWORDS:	Sexual assault without consent (7 counts) - directions as to accused's state of mind adequate - appellant's attempt to change basis of his case on appeal - directions as to accused not giving evidence adequate - directions as to complainant's credibility sufficient - case fought on basis guilty of all offences or none - verdicts reasonanly supported by the evidence - while sentences (10 years with NPP of 7-1/2 years) were stern objective criminality was high - sentences not excessive.
CASES CITED:	M v R (1994) 181 CLR 487 Jones v The Queen (1997) 191 CLR MFA v The Queen [2002] HCA 53 TKJW v The Queen [2002] HCA 46 Festa v The Queen (2001) 76 ALJR 291
PARTIES :	Regina v Ruthven Troy Davidson
FILE NUMBER(S):	CCA 60204/02
COUNSEL:	(A) A C Haesler (C) G I O Rowling
SOLICITORS:	(A) D J Humphreys (C) S E O'Connor

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	00/51/0214
LOWER COURT JUDICIAL OFFICER :	Freeman DCJ

IN THE COURT OF
CRIMINAL APPEAL

60204/02

GILES JA

BELL J

SMART AJ

Tuesday, 11 February 2003

REGINA v RUTHVEN TROY DAVIDSON

JUDGMENT

1. GILES JA: I agree with Smart AJ

2. BELL J: I agree with Smart AJ

3. SMART AJ: Ruthven Troy Davidson appeals against his conviction on seven counts of sexual intercourse with AH without her consent, knowing that she was not consenting, about 24 June 2000 and seeks leave to appeal against concurrent sentences on each count of imprisonment for 10 years with a non-parole period of 7½ years. The judge took into account the offences of supply and self administer cannabis.

4. The appellant complains that the judge erred in his directions to the jury as to that element of the offences relating to the accused's state of mind, the accused not giving evidence and the complainant's credibility. The appellant further submitted that the verdicts of guilty were unreasonable. None of the complaints as to the judge's directions were taken by the experienced and capable Senior Counsel who appeared for the appellant at the trial. He sought no re-directions and but one further direction which was given. It is apparent from the trial transcript that Senior Counsel regarded the summing-up and the judge's answers to the questions of the jury as satisfactory. One of the jury questions alerted those at the trial to a further topic to be covered and this was done by the judge.

The Crown Case

5. The complainant, AH, aged 16, lived with her boyfriend DB and friends, SK (a male) and CC (a female) in Coffs Harbour. AH and DB had lived there for almost a month. In June 2000 she smoked five or six cones of cannabis three or four times per day. About 19 June 2000 she met the appellant, then aged 49, who was a friend of SK. On Friday 23 June 2000 AH, DB and SK were drinking alcohol and smoking cannabis when the appellant came to their house about 4 pm. CC was also there but she was not drinking because she was caring for her baby. AH left the house to buy some coke at the supermarket. The appellant offered to "keep an eye on her" and followed her there.

6. The appellant suggested that they go to his house and pick up his vehicle. AH agreed. Shortly before they entered the house he asked her to "front for him" and when asked, say that she was the girl who had come to his house earlier. The man at the house, whom she did not know, asked, "Did you come around earlier?" She nodded. AH smoked some cannabis at the appellant's house. While in the appellant's van returning to AH's house he said, "[DB]'s no good for you. I can be there for you financially." CC was told by AH that she was uncomfortable around the appellant.

7. SK and the appellant discussed obtaining some cannabis. The appellant said that he needed a young girl to accompany him. AH did not want to go but SK and DB persuaded her that she should go with the appellant. SK said that he trusted the appellant. CC told her not to go if she did not want to. AH asked the appellant if DB could come and wait in the van but the appellant said "No." AH and the appellant left about 9 pm. The appellant stopped off at his house and collected some items including, it seems, a blanket, a pornographic magazine and a pair of sheets. They went towards Urunga. She said that she was not aware of the blanket and sheets. He allowed her, although under age, to drive to the Valla turn-off thereby increasing her confidence. He took over the driving there ostensibly because it was a dirt track. He pulled up about twenty minutes later In a remote area.

8. The appellant moved some things around in the back of the van. AH could not see any houses or lights. She asked the appellant what he was doing. He said "Get your cunt in there." She refused. He shoved her into the back of the van where there was a mattress. He told her to get her gear off and she repeatedly said, "No," and "I don't deserve this." The appellant had jumped into the van and shut the door. She also said "You're doing the wrong thing." She did not remember what he said. She was crying, scared and wanted to go home. The appellant said he had $600. She replied, "I want your money." This was a spur of the moment reaction which she could not explain. He replied in the negative. He again said "Get your gear off." She cried and sat there for a little while. He repeatedly said, "Come on". She took her shoes and socks off. He repeated, "Oh, come on before I lose my temper." He became really angry. Then she took her jeans off and an outer shirt. She sat there and cried. He said "What about the rest of it" and "take the rest of it off."

9. AH said that she feared what the appellant was going to do. She did not know what he was capable of doing; he'd been bragging to SK that he could bash up 20 guys on his own. She was scared and thought that if she did what he said she might live. She took off her shirt, her singlet and her bra. She was still crying. He told her to lie down on the mattress and she did so. He laid down beside her and started "like rubbing me and stuff". He was naked by the time she lay down. He felt her in her vagina and tried to kiss her but she pushed him away. He rolled her onto her back and inserted his penis into her vagina. He told her that she was "real pretty and young" and asked, "Have you ever had a black man before?" He said, "I'm the biggest daddy that you've ever had" and "[DB] couldn't match up" to him. He asked, "do you love me." She replied "No". He continued trying to kiss her "and stuff". She kept moving her face and tried to keep away from him.

10. He rolled her over "and kind of like doggie style way," that is he inserted his penis in her vagina from behind. This did not last very long and he rolled her back again and inserted his penis in her vagina again. She said that while he was having intercourse he asked how it felt. She told him that it hurt and felt like carpet burn. She remembered seeing some sperm on her leg and on her knee. She remembered him wanting her to hug him and kiss him and tell him that she loved him. He also wanted her to hold his penis and masturbate him. He wanted oral sex. She said that he inserted his penis in her mouth.

11. Next while she was lying on her back he again inserted his penis in her vagina. Then he rolled her onto her stomach and inserted his penis into her vagina from behind. After a short period he rolled her onto her back and inserted his penis in her vagina. She insisted that she did not consent to any of this conduct. She said that she was frightened and crying.

12. AH said that he fell asleep. However, when she tried to move he held her more tightly. She heard some rustling in the bushes. She believed it was about 3.40 am. She fell asleep. She woke up. The appellant had woken up, grabbed her hand and made her hold his penis. He told her to make him hard and used her hand to rub his penis. She said that she wanted to go home and asked if they could go home. He said, "No, I haven't finished with you yet." He rolled her onto her back and inserted his penis in her vagina. She kicked him in the arm and his arm went flying back. He yelled at her and said, "What are you doing, you stupid little bitch."

13. He inserted his penis in her mouth. She was on her back and he was pretty much on top of her. She said that she started to choke. She blanked out and he pulled his penis out of her mouth. He produced a pornographic magazine, showed AH a particular picture and stated, in effect, that she should follow the example shown. She was required to put her hand on his penis. He put his hand on her hand and rubbed. She cried.

14. AH threw her black shirt out the side door of the van. They dressed. They were in the middle of bushes and scrub. She did not see any houses. They got back into the cabin of the van and he drove off. She said that he drove off to the home of a man called Rick. It took about 25 minutes to get there. She said that he repeatedly said "Thank you". She said she was cold and he passed her a jacket he had with him.

15. When they arrived at Rick's house in Valla they went inside and had a cup of tea. She had never previously been to that house or met Rick. She did not tell him what had happened because he was one of the appellant's friends and she did not expect that he would do anything. The appellant, Rick and she each smoked some marihuana. The appellant drove to the petrol station and then back to Rick's home. She was sent in to give him some money from the appellant. On returning to the appellant's car she told him repeatedly that she had to be in Urunga by 8 o'clock. Urunga was the closest town where she knew somebody. The appellant drove her to Urunga. AH estimated that they arrived there about 7.30 on the Saturday morning.

16. She arranged for the appellant to drop her off at a point a few houses away from where she was going and he gave her a small amount of marihuana to take with her. On the way to Urunga he instructed her, "Don't tell [SK] and [CC] it will be our little secret, just tell them that we broke down at Bonville." She replied, "Yeah, yeah, okay." After leaving the van she went to a friend's place, namely, CA's place. AH told CA that the appellant had taken her [AH] to the middle of nowhere and had sex with her. She did not give any further details. AH said that she was crying and CA got her a drink. She attempted to ring her boyfriend, but could not raise him. She got hold of AW, his (de facto?) sister-in-law, and asked where DB was. AH did not tell AW what had happened.

17. As CA was working that day AH walked her to work and then met up with KT and they watched some football in Urunga. AH did not tell KT what had happened as she did not think there was any point in doing so. AH said that as she could not get a lift or train to Coffs Harbour and DB was at his brother's birthday party she had tried to contact him a second time, again unsuccessfully. She stayed at CA's place on the Saturday evening. On the Sunday she hitched a ride from Urunga Bridge to Coffs Harbour. She believed that she got back there on Sunday afternoon and went back to the house she shared with DB, SK and CC. DB was asleep on the couch. She talked with SK and CC in the lounge room but did not mention what had happened to her.

18. A little later she took DB into the bedroom and told him what had happened but not in full detail. Later on that evening she told CC when CC was by herself that the appellant had taken her out to Valla, that they did not go to the drug supplier's premises, and that the appellant had slept with her. The following morning (Monday) SK woke AH and DB up and told AH to go to the Police Station and the hospital. AH went to the police station, which was next door to the house and made a statement about lunch time on Monday. She also had a medical examination at the hospital in the evening.

19. In cross-examination she admitted she had made two statements. She made the second statement because she had left some important matters out of her first statement and made some untrue statements about where she was going with the appellant and why she went with him. She did not tell the police anything about cannabis because she was afraid that she would get into trouble if she did. She told the police about the cannabis after DB and CC told her that they had told the police everything and that she [AH] should do likewise as she would not get into trouble.

20. AH agreed that, in paragraph 19 of her second statement to the police she stated, "the reason I did not report the sexual assault immediately to the police was that I wanted to explain the incident to my boyfriend first, I wanted to get back to Coffs Harbour before I did anything about it." She said that that statement was the truth.

21. She did not agree that she did not arrive at CA's home until about 9 to 10 o'clock on the Saturday. AH said that she did not have any money to pay the train fare to Coffs Harbour. She did not think of borrowing any money from CA or KT for the train fare. She said that she rang for DB hoping to get him to come and pick her up but he was at a birthday party.

22. She denied that she had not hitched a ride back to Coffs Harbour on the Saturday or caught a train because she had not worked out what she was going to say to her boyfriend. She agreed that she told CA that she had been kept in the bush all night. AH said that when she left SK and CC at the Coffs Harbour home she thought that she would be gone for 15-20 minutes.

23. AH agreed that in her first statement to the police she said "I was laying down on my stomach and he put his penis in my anus, he pushed his penis in and out of my anus, this caused me a lot of pain, this didn't continue for very long, only a few minutes." She agreed that this was not true and that she had told the police something that was not true on Monday, 26 June, something that the appellant did not do.

24. AH agreed that in her second statement, despite being aware that the appellant denied that he had anal sex she said that he did have anal sex with her. She said that at the time she thought that some of the sex from behind was anal sex as it was so painful. She thought about it and decided that it was not anal sex. She said that initially she had been unsure whether it was anal sex.

25. Most of the persons with whom AH came into contact after her experience with the appellant gave evidence. Ricky J.C. Mackney, a friend of the appellant, lived on Valla Road, Valla. He said that AH and the appellant arrived at his house after first light but before full light on Sunday, 25 June 2000 (should be Saturday 24 June 2000). Both looked very cold. AH was very quiet. He helped her to talk and she relaxed. He said that AH and the appellant sat together. They were talking, but "not real freely". There was only light physical contact. He was not sure but the appellant may have given AH a light casual cuddle. AH wanted to go somewhere. She was impatient to do so. She seemed a little uneasy and seemed a little bit apprehensive about a lot of things. They had a few cups of tea, talked and smoked some marihuana. Mackney said that the appellant said that they had been at a party and then decided to spend the night in the forest. Mackney estimated that they stayed for 1 to 1½ hours. He lent the appellant $10 for petrol.

26. The statement of CA was read to the jury. She was 17 years of age in September 2000. She thought that AH arrived at her home about 10 am on a Saturday. AH had tears running out of both her eyes. When she first began to speak it was hard to make sense of what she said. AH said something like, "He kept me up in the bush all night. He wouldn't let me go. Every time I went to touch the car door he grabbed me and told me I wasn't going anywhere." AH was upset, vague and mumbling. She kept repeating, "He kept me up in the bush all night." She said words to this effect, "I won't be able to look at the stars and the moon in the same way again". CA said that she told AH that she should go and report it to the police, but AH was worried about what the appellant might do. AH said that the best part of the night was when she got to drive the car from Coffs Harbour. CA said that AH was worried that her boyfriend would dump her.

27. CA said that AH telephoned AW to talk to DB. CA said that when AH started to talk on the telephone she was making a bit more sense and was not mumbling so much. AH said that the appellant could not be trusted, that he kept her up in the bush and that every time she flinched he grabbed her and told her she was not going anywhere.

28. AW said that while she knew AH they were not close. She said that on Saturday 24 June 2000 she was making preparations for the birthday party of her boyfriend. She expected DB and AH to attend. About 9.30 am she received a telephone call from AH who was ringing from CA's house. AH said that when she saw DB to tell him that she was at CA's house and that it was an emergency. AW said that she had no other conversation with AH and that AH and CA were giggling and laughing. That was what they usually did when together. When AW later heard what was alleged she thought AH's behaviour was a little strange.

29. CC confirmed that the appellant said that when he was going to obtain a smoke he usually turned up with a girl. CC also confirmed that AH asked if DB could go and wait in the car and that the appellant said "No." He added that they would be right and that they would not be long. She thought that he gave an estimate of about two hours.

30. CC next saw AH on Sunday, 25 June 2000, around 11 am. CC was not sure of the time. CC said that AH felt a little uneasy and a little upset. AH did not tell her what had happened while SK was present but did so a little later when they were alone. AH told CC of the drive to Valla and pulling up in some driveway. The appellant told AH to get in the back of the van and yelled at her. CC said that AH did not go into much detail but CC realised what had happened. AH spoke of the appellant moving his paintings around in the back of the van, calling her names and AH crying., AH was very upset and did not really want to speak about what had happened to her.

31. SK gave evidence to the same effect as CC as to the circumstances in which AH went with the appellant on the evening of Friday, 23 June 2000. When she returned about 11 am or lunchtime on Sunday AH was "really standoffish, she wouldn't even speak to me, she wouldn't come near me, she treated me like an idiot." SK said he went into the bedroom of AH and DB and spoke to AH. "She was just shaky, scared, she would not look me in the eye, she just wanted to make sure [DB] was sitting in front of her while she was talking to me. …". SK and the appellant had been friends up to this point.

32. DB gave a broadly similar account of the appellant and AH leaving the Lyster Street house on the evening of Friday, 23 June 2000. The appellant was going to obtain some money and drugs. DB said that after a disturbed night in which he slept and vomited he woke up about 9 am. DB said that his sister-in-law came around and said that AH had phoned her and would like him to ring her urgently at CA's home. When he got to his mother's house he telephoned but nobody answered. It would have been around 10 am, 10.30 am on Saturday, 24 June 2000. He did not see or hear from AH until around lunch time on Sunday. AH looked really tired and not herself. She went straight into the bedroom and he followed.

33. He asked her what was wrong. She replied "You know how [the appellant] wanted to go and get the money, he didn't want to get money at all, he took me up to the mountains and raped shit out of me." DB said AH "could not move, and was really sore and really exhausted, she was a bit pale." In cross-examination DB said that when AH and the appellant left the house the latter went to obtain both money and cannabis.

34. In his recorded interview (ERISP) the appellant said that he did have sexual intercourse with AH in the early hours of Saturday, 24 June 2000 but she gave her consent. He said that shortly after they left Coffs Harbour for Urunga, AH asked if she could drive. He allowed her to do so and she drove to Martells Road which was not far out of Urunga. He took over the driving because they were going to see someone about some cannabis. He said that he knew somebody who had some cannabis.

35. It is not easy to follow what happened next but eventually they parked up on the mountain not far from Valla. He said that they had some bongs. He made up a bed for her and himself in the back of the van. The chemistry was there between them. She was a willing partner in sex. They had sex and went to sleep. Early in the morning when she awoke they had sex again. She told him that it was their secret and that he should not tell CC or SK. He agreed.

36. They left the mountain and drove to the home of Mr R Mackney. They had some tea and some bongs. The appellant said that AH wanted him to drive her to Urunga. She said "I've got to meet my bloke down at Urunga by 9 o'clock." The appellant said that they left between 8 am and 8.30 am. He borrowed $10 for petrol. He gave her what he described as a beautiful jacket. He drove her to Urunga. After she got out of the car he gave her some cannabis. He drove back to Mackney's place and gave him a hand with some jobs. He described AH as a mad young girl in bed. He thought she enjoyed the night. He did.

37. The appellant said that he had only known AH for a couple of days but he thought he had met her and her boyfriend before. He thought that AH was 16 or 17.

38. The appellant confirmed that he drove towards Valla because he was going to go around to Mackney's place to get some marihuana. The appellant said that they did not go straight to that place but rather went out into the bush a couple of kilometres from Mackney's place and spent the night there. He denied that it was in an isolated location and said there was a house just down the road from where he parked. It was on a dirt road. The appellant said he knew the area well; he used to live there. He said they first smoked some of her cannabis and later some of his. He said that his sex with AH lasted "quite a while". He said that she had given him "a head job" in the early part of the night. Later they had "straight sex" (insertion of penis in vagina) and after that they had a "doggy style session." He said that after he awoke in the morning she masturbated him and put his penis in her mouth. They also had a "doggy style session." He denied that he had inserted his penis in her vagina. The appellant claimed that AH was all over him.

39. The appellant said that he became engaged to AH. He told her that instead of giving her an engagement ring he would give her a jacket. He remarked to her that they had had a good night.

40. The appellant said that originally DB was going to go with them in the car. The appellant said that DB could have come with them but AH wanted to go with the appellant, just the two of them. He denied that DB asked if he could come and sit in the van and wait. The appellant said that before he left there was a lot of talk about "doing some busts and what have you," that is, robberies on that night.

41. The appellant agreed that after leaving his house he went to a house in another street in Coffs Harbour where a group of Aboriginal people lived to seek directions as to where he could obtain cannabis. He asserted that AH was interested in "knocking off" some dope but he told her that he would "get my smoke off my friends." The appellant denied AH's version of events. There were no threats, she undressed willingly, she was not crying, she was not scared and she consented to all that took place. He could have said something similar to, "I bet I'm the biggest daddy you've ever had, how many Aboriginal men have you had? Do you want me?"

42. He agreed that after they finished having sex in the morning she asked him to take her to Coffs Harbour. He said that he could not do so because they had no money for petrol. That was why he went to Mackney's home. He borrowed $10 and $5 was spent on petrol for the car. That enabled him to drive to Urunga and back to Mackney's home where he stayed and worked.

43. The appellant said that he did not think that AH could have said, "Can [DB] come and wait in the car?" However, he agreed with CC that he would have said, "No, because I'm not allowed to take strangers there, especially boys." He explained that that was where he was going to obtain cannabis. He agreed that he said, "No, I've only been there with females before." The appellant said that AH was not drunk but he thought "she had a few drinks in her."

44. The appellant was very articulate in his record of interview and when given the opportunity asserted his innocence and her consent. There were matters in the appellant's record of interview which did not assist him and dovetailed in with some of the evidence led by the prosecution. The appellant's statement explains why AH was driven to Urunga. The appellant was short of money, petrol was low and he wanted to return and work with Mackney. Some of the assertions and statements made by the appellant in his interview were contrary to the evidence of the witnesses. Overall, the version of events given by the appellant, where it conflicted with the prosecution evidence, was not reasonably credible. The jury might well have regarded the suggestion that DB and SK were intending to engage in armed robberies as fanciful, untruthful and designed to create a diversion.

45. Detective Pearce agreed in cross-examination that the appellant was the first person to mention smoking cannabis and that afterwards he obtained permission to take an induced statement from AH. This was so that he could get as much information from her as possible and she could admit to smoking cannabis without jeopardy to herself.

46. In her address to the jury the Crown Prosecutor told them that the evidence of lack of consent came effectively from AH. She pointed to parts of AH's evidence which evinced a lack of consent. The Crown reminded the jury that prior to AH leaving with the appellant to obtain money and cannabis AH had told CC that she thought the appellant was creepy and she did not like him. The Crown submitted that if they (the jury) accepted what AH had said about not consenting then they would accept that the appellant knew that she was not consenting. The Crown canvassed the evidence dealing with the criticisms of AH's evidence and submitted that much of what the appellant had said in his recorded interview could not be accepted.

47. Counsel for the appellant asked the jury not to take the approach that this was the case of a teenage girl and a middle-aged man and that accordingly she would not consent. Counsel stressed that the verdict of the jury depended almost exclusively upon their acceptance of AH as truthful and reliable. Counsel put that the evidence of AH was not truthful and reliable and anything but a safe basis on which to convict the appellant. It could not be said that there was no reasonable doubt that she was reliable and truthful. Counsel then went through her evidence in some detail highlighting where it was alleged that her evidence was untruthful or unreliable. Emphasis was placed on her not going to the police for 53 hours and then "lying by omission," that is not telling the police about the cannabis and her wanting to tell her boyfriend first. She was frightened that she would lose him.

48. It was suggested that the problem was not sexual assault but her being kept out all night and thus being put in an invidious position with her boyfriend. It was submitted that her conduct after the alleged sexual assault was inconsistent with the occurrence of such an event and that she had been deliberately untruthful in a number of respects. Counsel concluded, "But at the end of the day it comes down to her. Do you accept her beyond reasonable doubt as both truthful and reliable. If you think that she may have, even once, told you a deliberate lie [it] makes it awfully difficult. If you think she has told you deliberate lies more than once I respectfully suggest to you that in conscience it would make it impossible for you to believe her on these issues."

49. From counsel's address it is clear that AH's credibility was the critical issue. If AH's evidence was accepted there was abundant evidence that she did not consent and that the appellant knew that she was not consenting. The way in which this case was conducted by Senior Counsel was the best way to do so given the material which he had. Some of the subtleties pressed upon us and to which I will later refer would have no appeal to a jury. They would have seemed unreal. I share that view.

50. In his summing-up the judge pointed out to the jury that the Crown relied almost exclusively on AH's evidence. He warned the jury that as there was only one witness upon whom the Crown could rely, and it had to prove its case beyond reasonable doubt, they had to scrutinise the evidence of AH with particular care.

51. The judge directed the jury that they were entitled to take the view that AH's delay in complaining about the alleged sexual assault was consistent with there being nothing to complain about. The judge correctly dealt with the very limited use which the jury could make of the complaint and the arguments of the Crown and the appellant as to it.

52. After stressing that it was not a matter of choosing between competing versions, that the Crown had to prove its case beyond reasonable doubt and that the appellant did not have to prove a thing, the judge directed the jury:

"…you must accept that what happened was the way things were described by [AH] and that you have no reasonable doubt about that before you can convict the accused."

53. The judge reminded the jury:

"… and even accepting, or even according to the accused there had been full on sex with variations over a considerable period of time."

With this general background I turn to consider the grounds of appeal.

54. Appeal Ground 1 reads:

"His Honour erred in his directions to the jury as to that element of the offences relating to the accused's state of mind."

55. The judge explained that the essential elements of the offences were that there was sexual intercourse, AH did not consent and the appellant knew that AH did not consent. The judge reminded the jury that there was no dispute that the various alleged acts of penile vaginal intercourse and oral intercourse had taken place.

56. As to the elements of lack of consent and knowing that AH did not consent, the judge said (SU12-13):

"Now knowing in that context includes failing to turn your mind to the question of whether the partner was consenting or not. If you just go ahead regardless of whether that person has given you the go-ahead or not then you are guilty of knowing that the partner was not consenting. So that is the state of knowledge. And consent of course has to be agreement freely and willingly given. It is not the law that a woman has to fight to the last gasp before she can be taken to have not consented. Submission brought about by fear or coercion is not consent. So the Crown has to prove that there was no consent, that is willing agreement, the Crown has to prove beyond reasonable doubt that the accused knew, and understood, that there was an absence of consent."

The judge explained that to prove these elements the Crown relied almost exclusively on the evidence of AH.

57. The appellant contended that the evidence was not unequivocal as to the incident occurring without AH's consent. Nor was the evidence unequivocal, the appellant contended, that the appellant could not have been mistaken as to that absence of consent. The appellant submitted that it was by no means clear that he was aware of her lack of consent or that he was indifferent to it.

58. The appellant accepted that the judge correctly directed the jury that the Crown had to prove beyond reasonable doubt that "the accused knew and understood there was an absence of consent" (SU13) and that the judge took the jury to what AH had said in evidence. The appellant complained that the judge did not however elaborate on the point apart from when he reviewed the Crown submission dealing with each of the acts alleged. I interpose that if AH's evidence as to the various acts was accepted there could be no doubt that the acts were done without her consent and that that must have been obvious to the appellant.

59. The appellant submitted that the judge was required to give further directions. There were two episodes of intercourse, one before the appellant fell asleep and one after he awoke. The appellant submitted that the circumstances relating to consent and coercion as alleged by the complainant were different in relation to each episode and that very little was said or done after the appellant awoke to indicate absence of consent.

60. The appellant submitted that the judge's directions were not strong enough to impress upon the jury the need to take into account the subjective opinion of the appellant and the Crown's onus to negate that opinion. There was no reference to the appellant's interview or the state of mind expressed in that interview. Nor was there reference to the appellant's actions towards AH after the incident. "Some reference back to these points and relationship back to the element of the offence was required." The appellant alleged that as a consequence of this failure the trial miscarried.

61. The actions of the appellant asserted his physical authority and demands over AH. The appellant pushed her into the back of the van and told her to take her clothes off. He insisted and hurried her up when she did not want to do so. She pleaded "I don't deserve this, please don't do this, you're doing the wrong thing". She told him that what he was doing hurt and felt like a carpet burn. She was crying.

62. AH pushed the appellant away when he attempted to kiss her. She refused to let him touch her. She kept her head away and, in response to his supplication, firmly told him that she did not love him. The jury may well have shared the judge's view that the appellant was attempting to obtain consent after the event. (R/S 3)

63. The Crown correctly submitted that nothing in the appellant's conduct on the Saturday showed that he did not know that AH did not consent or required the jury to have a doubt on these matters nor were further directions required,

64. If AH's evidence was accepted there could be no doubt that AH did not consent and that the appellant knew that she was not consenting. Her evidence could not fairly be regarded as equivocal. From what transpired in the van as she related the events, it was obvious she did not consent. The jury were entitled to accept AH's evidence. She had been driven to a remote bushland area where she had little opportunity to escape or call for help. She was 16 and the appellant was 49.

65. The judge's directions were adequate. He made it plain that the Crown had to prove beyond reasonable doubt that there was no consent, that is willing agreement and that the appellant knew and understood there was an absence of consent. That is what the jury had to know. This last mentioned direction concentrated on the appellant's knowledge.

66. In his record of interview (Q&A13) the appellant insisted that AH did give consent" and (Q&A 59) intercourse never happened without her consent. He said, "I knew it was consent right from the start because the chemistry was there right from the start. She was a willing, a willing, a willing partner in sex." He also painted a picture of her being a willing partner when they awoke in he morning and had sexual intercourse. He described her as being "a mad woman in bed." During the interview the appellant repeated several times "It was by consent" or words to that effect. He thought she enjoyed the night. She fully participated.

67. The appellant's case was not that he did not know that she was not consenting, but rather that she consented and she was not telling the truth in her evidence. His case as revealed in the record of interview was that she was an enthusiastic partner in a variety of sexual activities and ancillary endeavours, such as cuddling and kissing.

68. The evidence of AH and that of the appellant was diametrically opposed. On his account of their activities there was no room for the suggestion that he was not aware she was not consenting, nor was such a suggestion available on AH's evidence. Having regard to AH's evidence and the terms of the appellant's record of interview, the only sound and realistic basis on which the appellant's defence could have been conducted (and was conducted) was that the jury could not be satisfied beyond reasonable doubt that she was telling the truth. There was material to support such a contention in the untruths initially told by her.

69. As the judge made clear to the jury, they had to be satisfied beyond reasonable doubt that the appellant knew or understood that she was not consenting, the judge was not in the circumstances of this case required to do more. Appeal Ground 1 should be rejected. Leave to raise it should be refused.

70. Appeal Ground 2 reads:

"His Honour erred in his directions in relation to the accused not giving evidence."

71. The judge gave these directions:

"The accused of course did not give evidence, which is his right to choose between the alternatives which are available in this State. He can, as he did in this case remain silent, allow his counsel to point out shortcomings in the Crown case because it is the Crown obligation to prove he is guilty, he does not carry any onus at all. He had the right to give evidence if he wished to. The fact that he did not give evidence must not be construed by you as having come about because he knew he was guilty. You cannot say 'Well he didn't give evidence because he knew he was guilty.' There may be many reasons why an accused person does not give evidence, they may fear being tripped up in cross-examination, they may fear not being able to do justice to themselves in the atmosphere of a Courtroom. The fact in this case is, of course, that the accused has, you might think, a fairly complete version of events from his point of view before you anyway in the recorded interview, and you might think there was not much more he could add to that other than replay as it were some of the answers that he had given to the police. Now that record of interview is before you. It is not evidence in the same sense as the evidence of a witness given on oath, and subject of course to cross-examination. Nonetheless you should regard what he said in the recorded interview as being a possible version of events, and you give it such weight as you think it is entitled to in the light of what you believe is established by the other material, the sworn evidence before you. I repeat the fact that he did not give evidence does not entitle you to conclude that he is therefore necessarily guilty. He was exercising a choice which is open to all of us. There would be no point having that choice if it was regarded as sinister when one exercised it. But you will remember in any event that it is always the burden of the Crown to prove his guilt, he does not have any obligation to prove anything."

72. The appellant submitted that most of the judge's directions were unexceptional. However, it was submitted that one of the examples which he gave was seriously flawed and unfairly prejudicial, namely, "They may fear being tripped up in cross-examination."

73. The appellant submitted that the clear and predominant inference which this example provoked was that the appellant feared giving evidence because in doing so his guilt would have been found out – that he would have been "tripped up". The appellant submitted that this example should not have been given in a case which depended on two conflicting versions of events where the complainant had been extensively cross-examined; it caused the trial to miscarry.

74. The appellant has read far too much into the example given by the judge. He did not suggest that the applicant had failed to give evidence because he believed he was guilty of the offences charged. The jury would not have jumped to the conclusion which the appellant has suggested. The judge explained to the jury why the appellant did not need to give evidence – he had given his version of events in his record of interview. This was a generous approach. Many lay people are apprehensive over giving evidence and being cross-examined and fear that they may be "tripped up" in cross-examination, for example, they may make a mistake or overstate their position or express themselves inaccurately. Sometimes it occurs because of a subtle shift in the premises on which questions are based; the witness not appreciating the shift. I do not think that the jury would have put the adverse meaning on the example suggested by the appellant, especially having regard to the context in which the example was given and what was said immediately before and immediately after the example. I would reject this ground of appeal. Leave to raise it should be refused.

75. Appeal Ground 3 reads

"His Honour erred in his directions to the jury in relation to the complainant's credibility.

The appellant accepted that the trial was conducted on the basis that if AH's version was believed the appellant would be convicted on all counts save those on which there was a verdict by direction of the judge. If AH's version was not believed beyond reasonable doubt he was to be acquitted on all counts. The judge said:

"Ordinarily a judge says that you must consider each count separately and deliver a separate verdict in respect of each count and that remains true except that in this case there is no way of distinguishing between these counts. You either accept that the Crown has made out its case, you are persuaded beyond reasonable doubt by [AH] in which case you convict the accused on each and every one of the counts or you have a reasonable doubt about her and you acquit him on each and every one of the counts. This is not a case in which you can say 'We will convict him on some and acquit him on others'."

76. Those appearing at the trial and the trial judge thought that there was no relevant distinction between the various counts. They all depended on the evidence of AH. There was nothing in her evidence or the circumstances which could lead to different results on different counts. It is true that the episodes of intercourse occurred before the appellant fell asleep and after he woke up. The parties were still in a van in bushland. The second round of sexual activities and intercourse was a continuation of what had happed in the same venue a few hours earlier. There was no material difference. The appellant complained that no specific direction was given as to how differing versions might affect AH's credibility. That was not necessary in the light of the facts.

77. After the jury retired they sent this question to the judge:

"Can we split indictment 1 to 5 night, 7 to 8 day?"

78. Senior Counsel for the appellant thought that the question raised the question of compromise and, further, that perhaps the jury had taken a view as to earlier actions. Senior Counsel said:

"I suggest the answer to it is in a strictly legal sense they are entitled to do that. Having regard however to the evidence in this trial they should not do that. They should also be instructed that in the particular circumstances of this case that if they entertained reasonable doubts about the accused's guilt on any of the charges that should translate to a reasonable doubt on all charges."

79. The Crown Prosecutor agreed. Senior Counsel stated that there was no basis upon which split verdicts would survive the Court of Criminal Appeal as the evidence did not permit that. The judge, after discussing and reviewing the evidence with counsel, agreed. So do I. The judge gave the jury this direction:

"Members of the jury I have received from you a note which for the record I read as follows 'Can we split indictment 1 to 5 night, 7 to 8 day.' I am not absolutely certain what you mean, and I do not propose to ask you any question because I have to be careful not to pry into the nature of your deliberations in the jury room. For that reason I do not understand the reference to 'splitting the indictment.' If you were seeking confirmation that counts 1 to 5 took place in the night if you like before they went to sleep, and 7 and 8 occurred after they woke up then counsel agree the evidence appears to support that distinction – if all you are doing is sorting these things chronologically. If however you have something else in mind then I must reiterate to you that this trial has been conducted on the basis that there is no rational way of distinguishing between the evidence in respect of each count. If you are persuaded beyond reasonable doubt by the evidence of [AH] that she was not consenting, the accused knew she was not consenting, they had sex anyway, then you would return a verdict of guilty on each count. If you have a reasonable doubt about her evidence in respect of any one count or more then the fact that you doubt her in relation to that count ought to translate into a reasonable doubt about all the other counts because you either accept or you do not. The short answer is no you cannot split the indictment if that is what you were thinking of doing – and I do not want to know – I have given you as much information as I think I can and I repeat in this case – in the circumstances of this case you either accept her or you do not."

Both the Crown Prosecutor and defence counsel said that they did not want anything further added.

80. The appellant complained that the direction given was not clear and that it was not clear how the direction was to be used by the jury. I disagree. He further complained this compounded the error outlined in Ground 1. It was submitted that the judge's direction did not allow the jury to consider that the issue of consent might differ according to the facts as the jury found them. This submission should be rejected. The evidence in this case did not, on any rational view, permit split verdicts. The appellant's approach in this Court was theoretical and lacked reality.

81. The appellant made these further complaints

(a) The jury should have received specific direction that it was the issue of the complainant's overall or general credibility that was in question.

That point was made clear in the summing-up.

(b) Initially the complainant told police there had been an episode of painful anal intercourse. The withdrawal of this allegation along with a denial that any anal intercourse had in fact occurred seriously undermined AH's credibility and called for strong comment from the judge. None was given.

Senior Counsel for the appellant did not seek such a direction. He had made a great deal of this point in his address. It was part of a major and powerful attack on her credibility. In the summing-up the judge put Senior Counsel's arguments, that the initial allegation of anal intercourse was a deliberate lie and that this was followed by consequent lies, clearly and cogently together with the Crown's replies. More was not required.

(c) The appellant submitted that the judge was bound to draw the attention of the jury to the discrepancies between what AH said to the police and the examining doctor and her evidence at the trial on the anal intercourse issue and that these raised doubts as to AH's credibility.

The judge did remind the jury of the arguments of the appellant and the Crown based on what she said to the doctor and on her evidence respectively. The matter was not clear cut. The appellant contended that her explanation was a lie, whereas the Crown contended that it was credible and that no lie was involved.

82. The factual issues were adequately exposed in the summing-up. Any fair reading of the summing-up reveals that the judge put fully the major points relied on by the appellant in his sustained attack upon AH's credit. The judge also put the Crown's contentions. He left it to the jury to resolve the various issues. The judge was not required to do more. The judge also left it to the jury to decide whether, for the various reasons advanced by the appellant and any other reasons, they could accept the crux of AH's evidence beyond reasonable doubt. Leave to raise Appeal Ground 3 should be refused.

83. Appeal Ground 4 reads:

"The verdicts of guilty were in all the circumstances unreasonable."

It was not in issue that the test to be applied was whether it was open to the jury upon the whole of the evidence to be satisfied beyond reasonable doubt that the appellant was guilty: M v R (1994) 181 CLR 487 and Jones v The Queen (1997) 191 CLR 439 at 450-1. See also MFA v The Queen [2002] HCA 53.

84. The appellant submitted that there were a number of significant problems with AH's evidence, including:

(a) The delay in lodging a complaint with the police

(b) the delay in complaining to her friend, CA on the Saturday

(c) when the call was made to AW on the Saturday not only was there no complaint but AH was giggling and laughing.

(d) initially, a clear and unequivocal complaint had been made of anal intercourse, but that was later withdrawn

(e) AH lied about visiting the appellant's house earlier on the Friday.

(f) AH was affected by cannabis prior to and after the event

(g) AH willingly took cannabis in the appellant's presence after the incident, that is, at Mackney's home.

(h) the appellant's state of mind – that he did not believe she was not consenting was evidenced by what was said by him to police in his interview and his taking AH to a friend's house for breakfast and his giving her gifts following the incident. These actions were inconsistent with sexual assault having occurred earlier that morning.

85. The appellant also submitted that when these factors were combined with the errors in the directions (referred to above) but making due allowance for the jury's advantage in viewing the witnesses, the appellant's convictions on each count were unreasonable and verdicts of acquittal should be entered.

86. The delay in lodging the complaint with the police was about 53 hours. It could not be regarded as gross. AH was concerned that she would get into trouble for being quite a heavy user of cannabis. She also wanted to explain matters to DB first. The delay in complaining to CA was relatively minor. AH was a little reticent to tell CA what had happened. AW said that AH and CA usually giggled etc when together. They were 16-17 year old girls. AH was not close to AW and asked AW to have DB telephone her as a matter of urgency. AH gave an explanation about the anal intercourse allegation. It was not fanciful. She had been imprudent and somewhat foolish but not necessarily dishonest.

87. AH did lie about visiting the appellant's house earlier on the Friday but she said that she did so at the appellant's behest. It was not a lie told under oath. While taking cannabis is regrettable it does not mean that her allegations of sexual assault are likely to be suspect. I have earlier dealt with the issues as to the appellant's state of mind and his assertions that she consented to having intercourse with him. The jury were not obliged to accept the account given by the appellant in his interview and to treat his acts on the following morning as showing that he believed she consented.

88. I have examined the whole of the evidence. The jury enjoyed a particular advantage in seeing and hearing AH give evidence. The Crown case was a strong one. The weaknesses to which the appellant pointed were not compelling given AH's age and the surrounding circumstances. The appellant's explanations and version of events were, in the circumstances, not credible. It was well open to the jury to be satisfied beyond reasonable doubt of the guilt of the appellant on all counts on which he was convicted. Appeal Ground 4 should be rejected.

89. The Crown made further submissions with which it is not necessary to deal except briefly. The Crown contended that none of the matters raised in appeal Grounds 1, 2 and 3 resulted in the appellant losing a chance of acquittal which was fairly open to him: TKJW v The Queen [2002] HCA 46, paras 65-8 and 81 per McHugh J. While this point does not arise on the view I have taken on Grounds 1, 2 and 3 I agree with that submission.

90. The Crown further submitted that the Crown case was a strong one and that the establishment of any error in the conduct of the trial did not result in the appellant losing any chance of an acquittal that was fairly open to him. No substantial miscarriage of justice had been caused. The Crown relied on Festa v The Queen (2001) 76 ALJR 291, paras 28, 115-123, 203-4, 222-9 and 260. That submission is sound.

91. The appeal against conviction should be dismissed.

92. Sentence

Counsel for the appellant pointed out that the appellant, believing that there had been a grave miscarriage of justice and that he was not guilty, led no evidence on the sentencing hearing before the judge. The judge made a series of detailed findings as to what occurred, including:

(a) the appellant lured AH away from her companions for the purpose of having his way with her

(b) he persuaded her companions to allow her to go, using the stratagem that he needed to be accompanied by a young female and could not permit any of her male companions to accompany her

(c) he repaired to his own house to obtain items which would facilitate his intended intercourse

(d) he won her increasing confidence by allowing her to drive

(e) about Valla he took over the driving and drove to an isolated spot in the bush

(f) when AH alighted from the van he ordered her into the van, pushed her and ordered her to lie down and commence performing sexual acts lest he lose his temper

(g) in all but name AH was a child

(h) for a period of some hours he used her as an object for the gratification of his sexual lusts invading her in a number of ways, vaginally and orally

(i) there was no contrition.

93. The judge noted that the appellant had an extensive record. It contained 37 entries, some for multiple offences, beginning in 1968. It included dishonesty offences, serious driving offences, drug offences, street offences, assaults. For most of the offences he was fined or placed on a recognizance. His periods of imprisonment included 2 months in 1969, 12 month in 1972-3, 5 years from 1978 with a recommendation for parole after 18 months for unlawfully wounding with intent to do grievous bodily harm and 9 months in 1998 with parole after serving 6 months. The appellant's record does not entitle him to leniency. The subject offences were far more serious than any of the appellant's prior offences.

94. The judge commented:

"What is … particularly distasteful is the way in which he singled this young girl out – separated her from her companions and then used her without remorse for a prolonged period of time in a repeated fashion."

95. As a result of material offered from the Bar table by counsel the judge accepted that the appellant had in the past been an activist in support of the preservation and dissemination of Aboriginal spiritual life and that he has a deep and abiding interest in Aboriginal art and the culture of his people.

96. The judge accepted the submission of both the appellant and the Crown that the sentences should be concurrent. The judge said:

"… each sentence in the series is meant to represent the quite disturbing nature of the crime on the vulnerable victim he chose, and each sentence acquires an element of aggravation because of the fact that each is one of a series extending over this period of time during which she was kept for his use. I do accept that there was no physical violence over and above the sexual abuse. She was not bashed, she did not suffer any lasting, purely physical, after effects. That is not, of course, to say that she has not suffered prolonged if not permanent psychological damage as a result of being so brutally abused."

97. The judge held that there were no special circumstances and that the period of supervision (2½ years) was adequate.

98. The appellant submitted that despite the absence of specific error in the judge's sentencing remarks, the sentences were excessive on any reasonable assessment of the objective gravity of the offences. The appellant relied on there being no additional violence, not abandoning AH in an isolated area, giving her gifts and dropping her near a friend's home as requested. She was not subjected to humiliation other than that inherent in the episode itself and was not directly threatened. The sexual assaults were all part of one episode. It was submitted that the offences did not call for the severe penalties imposed.

99. The appellant submitted that the sentencing statistics revealed that only one other person had received a sentence of 10 years for Section 61I offences. It may be that the figure of one should read two. Seven persons had received 9 years.

100. While the sentences were stern, they were justified because of the factors identified by the judge. AH was separated by the appellant from her companions, he made preparations for intercourse, drove her to a remote place in bushland and compelled her to have intercourse with him repeatedly for an extended period. There were two sessions. In real terms she was in a hopeless and helpless situation. The sentences were not manifestly excessive.

101. I propose the following orders:

1. Appeal against conviction dismissed.

2. Leave to appeal against sentence granted; appeal dismissed.

***********

Last Modified: 02/12/2003