Regina v Grujevski

[2004] NSWCCA 117

CITATION:	Regina v Grujevski [2004] NSWCCA 117
HEARING DATE(S):	10 February 2004
JUDGMENT DATE:	22 March 2004
JUDGMENT OF:	Beazley JA at 1; O'Keefe J at 2; Bell J at 46
DECISION:	Appeal dismissed.
CATCHWORDS:	Criminal law - Appeal - Multiple counts in indictment - Inconsistent verdicts - Principles to be applied - Logic, reasonableness and common sense.
CASES CITED:	Jones v The Queen (1997) 191 CLR 439 M v The Queen (1994) 181 CLR 487 MacKenzie v The Queen (1996) 190 CLR 348 Osland v The Queen (1998) 197 CLR 316 Regina v Wilkinson (1970) Crim LR 176
PARTIES :	Trajce Grujevski Crown
FILE NUMBER(S):	CCA 660345/03
COUNSEL:	Mr C Everson - Appellant Mr G Rowling - Crown
SOLICITORS:	Ms J Saunders - Saunders & Co - Appellant Ms J Bremner - Director of Public Prosecutions (NSW) - Crown

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/41/0241
LOWER COURT JUDICIAL OFFICER :	Morgan DCJ

- 1 -

660345 of 2003

BEAZLEY JA
O’KEEFE J
BELL J

22 March 2004

REGINA V TRAJCE GRUJEVSKI

Judgment

BEAZLEY JA:

1 I agree with O’Keefe J.

O’KEEFE J:

Introduction

2 This is an appeal by Trajce Grujevski (the appellant) against his conviction by a jury at Queanbeyan on 15 April 2003 on a charge of having detained a female without her consent with intent to obtain an advantage namely sexual gratification and at the time of such detaining actual bodily harm was occasioned to the female. The appellant, who is 44 years of age, was subsequently sentenced to imprisonment for three years from 29 May 2003 with a non parole period of 18 months to expire on 28 November 2004. The appellant has not sought leave to appeal against his sentence.

3 The appellant stood trial on an indictment that included three counts. They were:

(1) That on 27 December 2001 at Jerrabomberra on the State of New South Wales he detained a named female without her consent and with intent to obtain an advantage, namely sexual gratification and at the time of detaining, actual bodily harm was occasioned to such female.
(2) On the same date and at the same place he assaulted the same female and at the time of such assault committed an act of indecency on the female.
(3) On the same date and in the same place he attempted to have sexual intercourse with the same female without her consent and knowing that she was not consenting.

4 The appellant pleaded not guilty to each of the charges and although he was convicted on the first count in the indictment the jury acquitted him on the seconds and third counts.

5 There is only one ground of appeal, namely:

“The verdict of guilty on the first count is unreasonable and cannot be supported, having regard to the evidence and to the verdicts of not guilty returned on the other two counts in the indictment.”

6 The principle contention advanced on behalf of the appellant is that the verdict of guilty on the first count is inconsistent with the acquittals on the second and third counts and that no reasonable jury that applied its mind properly to the facts of the case could have reached a verdict of guilty. On behalf of the appellant it was submitted that the only reasonable view the court could take in relation to the first count that was consistent with the acquittals on the second and third counts, was that the Crown failed to prove that the intention of the appellant was to obtain an advantage by detaining the female (the complainant), such advantage being sexual gratification.

Facts

7 The evidence reveals that on the afternoon of 27 December 2001 the complainant went to a football club in a suburb of Queanbeyan which was some 10 to 15 minutes walking distance from her home. Prior to going to the club she had consumed three or four cans of beer and at the club she drank bourbon and coke and more beer whilst in the company of some of her friends. During the course of the evening she and one of her female friends were approached by three men who were not known to her. One of these was the appellant. He bought her and her friend a drink. The plaintiff’s friends later left the club. It appears that after her friends had left the appellant bought the complainant another drink, after which the complainant bought another drink for herself. When the bar attendant served her this drink she informed the complainant that it would be her last, because she was starting to show signs of intoxication. A little while after this the bar attendant saw that the appellant had hold of the complainant’s arms and that she was trying to pull them away.

8 The complainant requested a lift from the appellant and he agreed. She thought the lift was going to be to her house which was only a short distance away from the club. The complainant said that she was “pretty drunk” at the time, but was not “that drunk that I lost it”.

9 The Crown case was that the appellant drove away from the club with the complainant sitting in the front passenger’s seat. The vehicle proceeded in a westerly direction along Southbar Road. Mallee Crescent, in which the complainant lived, intersects with Southbar Road only one or two blocks from the club. When the vehicle reached the intersection of Southbar Road and Mallee Crescent the complainant asked to be let out of the vehicle, advising the appellant that Mallee Crescent was the street in which she lived. The appellant kept driving. The complainant then tried to get out of the vehicle whilst it was still moving, but was restrained from so doing by being grabbed from behind by the appellant, who pulled her hair. She was prevented from getting out of the vehicle both by virtue of such restraining action and by virtue of the fact that he just kept driving. The complainant said that she told the appellant that she wanted to get out and to go home and that she had a little boy at home as well as a boyfriend. However the appellant would not let her out of the vehicle and when she tried to get out on those occasions when the vehicle reached traffic stoplights he punched her in the head and face. The appellant denied this.

10 It is clear that the complainant had sustained injuries to her back, hips, face and hands, wrists, elbows, left torso and left calf muscle (AB 114). These were apparent not only on later inspection by police but also from photographs that were tendered in evidence. These, according to the Crown, provided some corroboration for the complainant’s evidence of assault by the appellant during the course of the events of the evening in question.

11 The appellant was a house painter by trade. At the material time he was plying his trade in a relatively new housing subdivision on the outskirts of Queanbeyan. By Thursday 27 December 2001 his work had taken him to a house at lot 518 Tooroonga Crescent, Jerrabomberra. It was in the course of construction and the painting work was either nearly complete or had just been completed. As a result of his work the appellant was aware of the premises, that they were vacant, that he had access to them and that the street was one in which there were no occupied houses.

12 It was common ground, and there was corroboration of the fact, that the appellant’s vehicle was driven to the premises at lot 518 Tooroonga Crescent, Jerrabomberra by the appellant. When he arrived at these premises the vehicle was parked in the driveway entrance to such premises and, according to the complainant, the appellant dragged her out of the van, threw her on the ground, then held her as she struggled and screamed and finally dragged her into the house. She continued to scream. She said that he took her down the side of the house and entered through a side door. He then threw her on the ground and, again according to the complainant, tried to get on top of her. She struggled and screamed and in the course of the struggle the complainant says that the appellant placed his hand between her legs and “pressed on my vagina”. She said that she was fighting to get away from him and screaming and yelling, however he persisted in his endeavours and sought to force the complainant to engage in fellatio. Again the appellant denied this.

13 As events transpired two people were in the vicinity of lot 518 Tooroonga Crescent, at the time these events were unfolding. They were Mr Anson and Ms Wicks. They were walking their dogs. As they did so they heard a woman screaming very loudly. She sounded “very, very distressed”. The screaming continued for some minutes as the couple walked towards Tooroonga Cresent. It was still light and as they entered Tooroonga Cresent they saw a man and a woman scuffling outside a white van, that was undoubtedly the appellant’s van. The woman continued to scream in a manner that was described by Ms Wicks as “the sort of scream that makes your stomach go down to your feet”. The man and the woman were on the passenger’s side of the vehicle and the woman was screaming while he was holding onto and restraining her and as he commenced to push her. As Mr Anson and Ms Wicks approached they could clearly see that the man was pushing the woman towards the house. The event was described as “a very intimidating sort of situation”. There is no doubt that the man was the appellant and that the woman was the complainant.

14 Mr Anson and Ms Wicks noted that the vehicle was parked “nose in towards the house”. Whilst they were concerned at the events that they were witnessing, they were not sure whether the struggle was “a really bad domestic argument” or something else. However the man looked around, seemed to notice Mr Anson and Ms Wicks, and then again began to push the woman down the side of the house. They then observed him push her through a glass sliding door that was on the side of the house. The pushing was effected by the man grabbing the upper half of her body and pushing her as best he could during which time the woman continued to scream.

15 Mr Anson and Ms Wicks then walked around the back fence line, looked over the fence and called out. This was undoubtedly an endeavour to ascertain whether or not the woman was alright. They were unable to see inside the house, but did hear continuing screams by the woman. Mr Anson then called out to see if everything was all right, whereupon the screaming stopped. As a consequence they commenced to walk away but as the screaming then began again they called the police from a mobile phone that one of them was carrying.

16 The next thing they saw was that the van that had been parked came out of the premises “shot around the roundabout near us and headed off down the road”. Mr Anson said it was “hurtling along”. He also observed that the driver of the vehicle was the appellant. He noted the registration of the vehicle. It later proved to be the appellant’s. After ringing the police Mr Anson and Ms Wicks thought that the appellant’s vehicle returned to the area, because they saw it in a different street but still being driven by the appellant.

17 An examination of the complainant by the police showed that her clothes were bloodstained and torn and had residues of white dust on them, as did her hair. She also had the injuries to her body described above. The house was examined and drag marks and footprints consistent with the shoes being worn at the material time by the appellant and the complainant were found; so too was the hair clip that the complainant had been wearing and traces of her hair and blood.

18 From the foregoing it can be seen that there was substantial evidence corroborating the complainant’s claim in relation to the events that occurred outside and into the premises at Lot 518. However there was no corroboration as to precisely what occurred inside the house.

19 The appellant’s case was that he and the complainant had met in the football club, that she had asked him for a lift and he had agreed to give her one but before they left she had gone to the toilet. He said she came out with blood on her lips and nose. He describes this as “just a little bit around the nose” with “droplets around the mouth”, but he was not sure whether she was injured in her mouth or just the nose. She indicated that she had fallen over in the toilet. It was by reference to this event that the appellant sought to explain the injuries observed by independent witnesses to have been sustained by the complainant. However, his evidence did not account for the bruising and other injuries observed on various parts of her body particularly her buttocks and back. He said that after they got into his van the directions she gave him as to how to get to her home were confusing and took him in a direction that was away from his home in Queanbeyan and past her home in Mallee Crescent. For a reason that is not explained in the evidence the vehicle finished up at premises in Jerrabombera on which the appellant had been working as a painter for some days. These premises were some 10 kilometres away from the club and from Mallee Crescent. A map of the area that was tendered in evidence shows that to get from the club to Tooroonga Cresent involves travelling west along Southbar Road for some 2 ½ kilometres, then turning left to travel south along Lanyon Road, then doubling back to travel east and finally entering a virtual maze of cul-de-sac’s in order to reach Tooroonga Cresent.

20 The appellant claimed that the complainant had made sexual overtones to her after the vehicle had arrived at lot 518 Tooroonga Cresent, Jerrabombera. He claimed that she asked him if he wanted to have sex and if he had a big penis. The appellant gave evidence that he answered this request by suggesting that she “check it out”, which he claims she proceeded to do by undoing the buttons on the fly of his trousers. This is said to have occurred when the van was parked at right angles to the relevant property with the tyres on the road and the residue of the vehicle on the property. In his evidence in chief the appellant elaborated on the events. He said that she put her hand inside his underpants and masturbated him for 15 or 20 minutes, when he ejaculated. In cross-examination, however, he reduced this time to 15 to 20 seconds. He denied assaulting the complainant, but said that she fell over as she got out of the vehicle. He denied ever taking the complainant inside the house and said that he did not see the complainant move away from the van at all. Significantly, he denied hearing anyone call out during the course of the events that occurred in proximity to his van and also denied seeing anyone in the area although it was light at the time.

21 On the appellant’s version of the events at Lot 518 the complainant was not screaming, except when she shouted three vulgar and derogatory expressions to him which took only “a few seconds” to do. After these words had been said he went to a port-a-loo toilet that was on the estate, leaving the complainant beside his van and that when he came out from the toilet he said that the complainant was gone.

22 Thus the case made by the appellant at trial was one of virtually total denial of the Crown case and involved the jury in an evaluation of his evidence on the one hand and that of Mr Anson, Ms Wicks, the complainant and the scientific/forensic evidence on the other.

23 At the trial the appellant argued that the jury should not be satisfied that:

(i) there had been a detention of the complainant; nor

(ii) there was any intent on the part of the appellant to have sex with her; nor

(iii) there was any conduct on his part, within the confines of the premises Lot 518 that involved touching the vagina of the complainant or attempting to have sexual intercourse with her.

24 The Judge correctly directed the jury as to the onus of proof, that it should consider each of the charges against the appellant separately and that they were not required to accept the whole of the evidence of any witness, but may do so. She also directed the jury that they should look at the evidence of the complainant with care because she may have been affected by alcohol.

25 In relation to the first count the summing up included the following:

“You must return a verdict in respect of each of the charges. You cannot reason that because you find the accused guilty or not guilty whichever it may be of the first count that necessarily he is guilty or not guilty of each of the others, because you have to look at the evidence which goes to each of those charges.”

and

“It is alleged by the Crown that she was prevented by getting out of that motor vehicle … when the car continued on for some 10 kilometres or more … That she was detained in that motor vehicle and was unable to get out of the car.”

26 The Judge also directed the jury that the Crown case was that there were:

“Violent struggles … when she was trying to get away from him both outside the house and when she was being dragged … along the side of the house and into the side doorway.”

27 On 14 April 2003, after the jury had retired to consider its verdict, a note was sent to the Judge as follows:

“Does the detention without consent extend outside the vehicle, ie, if Ms L was detained without consent at 518 Tooroonga Cresent does this satisfy the element of detention in charge 1?”

There was discussion between the Crown Prosecutor, Counsel for the appellant and the Judge as to the answer that should be given to this question. The Crown submitted that the answer should be “yes” because such a detention was supported by the evidence of independent witnesses. The Judge indicated that it was her view that the answer should be “simply ‘Yes’”. When Counsel for the appellant was asked if he agreed he said that “[t]he answer has to be ‘Yes’”.

28 The jury was brought back, the question that they had asked was read and the agreed answer was given by the Judge.

29 The next day, 15 April 2003, the jury asked another question, namely:

“What is the meaning of detained?”

Again there was discussion between the Judge, Counsel for the appellant and the Crown Prosecutor. The Judge indicated that the word the subject of the question was an ordinary English word and that it bore the meaning arrest, check, confine, delay, hinder, hold, keep, restrain, retain, stay or stop. Counsel for the appellant then said:

“I’d be content for your Honour to just repeat that to the jury in answer to the question.”

30 The jury was again brought back, the question that they had asked was read and the Judge gave a direction as set out above, adding to it the following:

“So ladies and gentlemen it simply means that as you would understand I would hope from those different words used instead of detain. Does that assist you Mr Foreman?”

to which the foreman replied in the affirmative.

31 The directions to the jury in respect of the second count in the indictment specifically adverted to the precise act of indecency that was the subject of the count as being “the touching or feeling or pushing of his hands against her vaginal area over her clothes”. This accords with the way in which the Crown particularised this offence in the Crown opening.

32 The directions given in relation to the third count in the indictment included the following:

“… her evidence was that the accused had hold of her, that she was struggling, she was screaming, he was pulling her towards him, he was pulling her head towards his groin area. That he managed to pull out his penis and was forcing her face towards that”

whilst he was saying words that indicated that he wished to engage in fellatio with her. Again, the act relied on in the summing up in respect of third count accorded with the particularisation of such offence to the jury in the Crown Prosecutor’s opening.

Appellant’s contention

33 The appellant contends that the verdicts of acquittal on the second and third count in the indictment are inconsistent with a conviction on the first count, since the jury must have rejected the complainant’s evidence of what occurred in the house and that as a consequence they could not infer that any detention of the complainant by the appellant was with intent to obtain an advantage, namely, sexual gratification.

Applicable law

34 The principles to be applied in the present case are not in doubt. They are:

(i) Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, an appellate court is asked to conclude that a verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether on the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty ( M v The Queen (1994) 181 CLR 487 at 493, per Mason CJ, Deane, Dawson and Toohey JJ);

(ii) A verdict may also be unsafe or unsatisfactory “when… the verdicts of the jury raise a real doubt as to whether a conviction is safe or just” ( Jones v The Queen (1997) 191 CLR 439 at 450, per Gaudron, McHugh and Gummow JJ);

(iii) In determining whether the verdict is unsafe or unsatisfactory the court must not disregard or discount the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence or the consideration that the jury had the benefit of having seen and heard the witnesses ( M v The Queen supra);

(iv) Where a verdict of guilty is said to be unsafe or unsatisfactory on the basis that it is inconsistent with other verdicts of acquittal by the jury, the question as to whether there is an inconsistency must be considered by reference to the evidence, the issues and the way in which the jury was directed ( Osland v The Queen (1998) 197 CLR 316);

(v) In cases of inconsistent verdicts a distinction must be drawn between cases of legal or technical inconsistency and cases of suggested factual inconsistency. Where the inconsistency arises in respect of the verdicts given on different counts in an indictment the test is one of “logic and reasonableness” and the obligation to establish inconsistency rests on the person making such a claim (see generally MacKenzie v The Queen (1996) 190 CLR 348 at 366-368);

(vi) If there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed its function as required, that conclusion will generally be accepted (ibid; Regina v Wilkinson (1970) Crim LR 176).

35 In the present case the character of the inconsistency asserted by the appellant is a factual inconsistency. Conformably with the above principles it is necessary for the Court to determine if there is a basis in logic and reasonableness for the verdicts arrived at and to be satisfied that there is no affront to logic and common sense by allowing the verdict of guilty on the first count in the indictment in the present case to stand with the verdicts of acquittal in respect of the second and third counts in such indictment.

Analysis

36 The directions to the jury that they must be satisfied beyond reasonable doubt of each of the elements of each of the counts in the indictment and that they must consider each count separately are important in determining whether there is a basis in logic and reasonableness on which the different verdicts can be explained. The initial directions given to the jury must be understood in the light of the further directions given by her Honour in answer to the questions asked by the jury. Those questions were relevant only to the first count in the indictment.

37 There was no corroboration as to the precise acts on which the Crown relied as constituting one of the essential elements of the second count. Whether or not the appellant touched the complainant in the area of her vagina outside her clothes involved the resolution of a conflict between the evidence of the complainant on the one hand and that of the appellant on the other. No one else was inside the house and neither Mr Anson nor Ms Wicks was able to see into the house at the material time. Whilst the jury may well have been satisfied that there were acts of assault and some acts indicating what the appellant had in his mind whilst inside the house, they could well have given him the benefit of a reasonable doubt because of the absence of corroboration in relation to the precise act of indecency relied on by the Crown.

38 Based on the evidence of Mr Anson and Ms Wicks, the jury could readily have determined that the complainant was dragged into the house by the appellant, that he assaulted her whilst they were there (hence her screams and the marks in the dust on the floor) but not have been satisfied beyond reasonable doubt that he actually touched her in the precise manner opened on by the Crown and summed up on by the Judge.

39 In relation to the third count the jury could well have been satisfied that the appellant dragged her from the van into the house, as Mr Anson, Ms Wicks and the complainant testified, but not have been satisfied beyond reasonable doubt that he attempted to engage in the precise act that constituted the attempted sexual intercourse charged, namely fellatio.

40 The difference between the cases made in relation to some of the essential elements of the offences charged in the second and third counts on the one hand and those charged in the first count on the other, is that there is corroboration of the elements deposed to by the complainant in relation to the first count, but not in relation to the second and third counts.

41 Counsel for the appellant argued that since the jury had acquitted the appellant on the second and third counts they must necessarily have concluded that there was no sexual element involved in the events at Lot 518, Tooroonga Crescent and that as a consequence they could not find that he had the intent necessary to sustain a conviction on the first count. I do not think that this is correct.

42 It was open to the jury to find that the appellant took the complainant to premises that were well removed from her home, that he knew them to be unoccupied and to be in an area in which it was unlikely that there would be any people in the vicinity at the time of evening that he went to such premises. In the state of the evidence it was also open to the jury properly to infer that his intentions were sexual. There was the evidence of his contact with her at the club, as deposed to by the female bar attendant. His actions could well be construed as initial overtures of a sexual kind. Then when they arrived at lot 518 Tooroonga Cresent, the appellant detained the complainant, both near his van and alongside the house. The dragging of the complainant down the side of and into the vacant premises, as deposed to by Mr Anson and Ms Wicks, occurred after there had, according to the appellant’s evidence, been some interchange of a sexual nature between him and the complainant, when they were inside his van. On the Crown case, amply supported by the evidence of Mr Anson and Ms Wicks, the appellant dragged the complainant screaming down the side of the house and forced her into the house. If that was accepted, then the inference as to his sexual intent was open to the jury. From the totality of the circumstances revealed in the Crown case and supplemented by parts of the appellant’s own evidence, I am of the opinion that it was open to the jury to conclude from the direct evidence and by inference that the appellant, under the influence of alcohol, saw the complainant as an easy mark and that he took her to a lonely place with the intention of having sex with her.

43 In my opinion the verdicts of the jury on the three counts in the indictment are well able to be understood as consistent both in logic and reason. This is even more clear when regard is had to the questions asked by the jury and the agreed replies given by the Judge.

44 In my opinion there is no inconsistency between the verdicts on the various counts in the indictment and there would be no affront to logic, reasonableness and common sense to allow the verdict on the first count to stand.

45 For the foregoing reasons I am of the opinion that the appeal should be dismissed and I propose that an order be made accordingly.

BELLJ:

46 I agree with O’Keefe J.

Order

47 The order of the Court is that the appeal is dismissed.

oOo

Last Modified: 04/29/2004