Regina v Lee
[2004] NSWCCA 133
•7 May 2004
NEW SOUTH WALES COURT OF CRIMINAL APPEAL
CITATION: Regina v Lee [2004] NSWCCA 133
FILE NUMBER(S):
60507/03
HEARING DATE(S): 15 April 2004
JUDGMENT DATE: 07/05/2004
PARTIES:
Regina v Jim Lee
JUDGMENT OF: Sully J Dowd J Smart AJ
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 02/21/0298
LOWER COURT JUDICIAL OFFICER: Patten DCJ
COUNSEL:
(A) P Hamill
(C) B Knox SC
SOLICITORS:
(A) P Stewart
(C) S Kavanagh
CATCHWORDS:
Sexual Assault - Inconsistent verdict - verdict of guilty on count 2 reasonably supported by evidence - in the circumstances Markuleski direction not required
LEGISLATION CITED:
Nil
DECISION:
Appeal against conviction dismissed
JUDGMENT:
IN THE COURT OF
CRIMINAL APPEAL
60507/03
SULLY J
DOWD J
SMART AJ
Friday, 7 May 2004
Non-Publication Order
Reginav Jim LEE
Judgment
SULLY J: I agree with Smart AJ.
DOWD J: I have read the judgment of Smart AJ in draft form. I agree with his Honour's judgment.
SMART AJ: Jim Lee appeals against his conviction on count 2 of an indictment charging that on 14 December 2001 at Fairfield he had sexual intercourse with MC without her consent and knowing that she was not consenting, in circumstances of aggravation, in that at the time actual bodily harm was inflicted on her. She asserted that a hard object was inserted in her vagina, prompt medical examination revealing actual bodily harm.
The appellant was acquitted of two other charges, namely, on the same day taking MC without her consent with the intention of obtaining an advantage (count 1) and a further charge of having sexual intercourse with MC without her consent and knowing that she was not consenting, in circumstances of aggravation in that at the time actual bodily harm was inflicted upon her (count 3). The third count depended upon an allegation of digital penetration following the insertion of the hard object.
The appellant contends that the verdict of guilty on count 2 was unreasonable having regard to the evidence and the verdicts of not guilty on counts 1 and 3 and that the judge erred in failing to direct the jury that if it had a reasonable doubt as to one of the counts it should take such doubt into account in assessing the credibility of MC in considering the other counts.
The Facts
On the afternoon of 13 December 2001 MC and her boyfriend left Wisteria House, a drug and alcohol detoxification centre. After buying some heroin they went to Grace Brothers, Parramatta and were arrested for shoplifting at 2.50pm. They were taken to Parramatta Police Station and then to Merrylands Police Station where MC was granted police bail at 7.13pm, but her boyfriend was kept in custody.
MC stated that she was told that her boyfriend had been transferred back to Parramatta Police Station so she travelled there by train avoiding the fare because she had no money. On arrival she was told that her boyfriend was still at Merrylands, so she travelled back again by train, avoiding the train fare. At Merrylands Police Station she was told that he was at Fairfield Police Station so she travelled there arriving about 11pm. She was told that her boyfriend would be held overnight and appear in court the next morning. She asked if she could spend the night in the foyer of the police station and was told that she could. She was wearing a pair of jeans, and a white singlet and had a jumper with the word "Champion" on it tied around her waist and a pair of sneakers. She weighed about 50 kilograms at that time.
Snr Cons Thistlethewaite, who was on desk duty, had several conversations with her and said that she was in a "normal state of mind" though "slightly annoyed at being in a police station having to wait there, but other than that she was in a talkative mood." A little before1 am MC left Fairfield Police Station to go to the Westpac Bank ATM about 80-100 metres away, on the same side of Smart Street. She estimated the time as about 1.30am. She could not gain access through the glass doors to the ATM so she sought assistance from Huseyin Eyidogan, who was cleaning in a takeaway shop across the road. He assisted her to gain entry. He did not see any people in the street.
MC expected her Centrelink benefit to be in her bank account sometime after midnight. The bank records reveal that about 12.57am and 12.58am respectively on 14 December 2001 she made two unsuccessful attempts to withdraw $20. She decided to look for a telephone to ring a 24 hour banking line to find out whether the money was in her account but not yet accessible. She had 40 cents to make a telephone call but no other money.
As she walked back towards the police station she saw a man standing about 10 to 15 metres from the bank who appeared to be talking on a mobile phone. It was the Crown case that this was the appellant. He wore black pants and a black long-sleeved T-shirt. MC walked a few paces past him and was grabbed from behind by him (the appellant). She said that her attacker had a dark olive skin with what seemed from the stubble to be black hair. She did not accurately remember his height. She thought he was a little shorter than her. She was 173 cm. She said that he placed one hand over her mouth and had one arm around her waist. He picked her up and carried her across the road and threw her into the back seat of a red hatchback. He then got into the driver's seat and drove for five or ten minutes. She was crying. He told her to stop, saying "What are you crying for?" She said that initially he was agitated but he settled down. He told her that he was Serbian or something, and lived at Fairfield Heights (or Fairfield something), with his brother and that he (the appellant) was 22.
The appellant parked in the large car park of the Fairfield Showground. There were trees and shrubs on the median strips between the car park rows. MC said the car park was light in some areas and darker in others. MC said that the appellant moved the two front seats forward and then jumped into the back seat. She said that she had her arms around her knees and was huddled in the corner of the car. The appellant grabbed her arms and told her to lie down and, when she resisted, punched her twice in the arm and once in the lower arm. She was struggling. He forced his knees between her legs. She reached for the door handle to try to get away. He told her that if she ran he would catch and belt her severely. While in the car she saw a tattooed band on the appellant's right arm.
The appellant pulled her top and her bra down. He touched her breasts and sucked her right nipple. He took his pants off. Next he reached for her pants and started pulling them. He lifted her up because she would not move to let him. He pulled her jeans down, getting one leg of the jeans off and the other down around her ankle. He next removed her underwear. She could not remember how he removed her underwear
She then kneed him in the testicles. She cried and said "No, No." He picked up a hard object, inserted it in her vagina and kept pushing it up and down for some time. This was very, very painful. She "felt like it was cutting and it was horrible." While she yelled out "Stop, please stop," he laughed. Then he inserted his fingers inside "and did the same thing". This was not as painful and did not last as long as the insertion of the hard object.
After removing his fingers he remarked that his back was sore and asked her to give his back a massage. About this time she noticed a police paddy wagon driving around. She jumped into the front seat of the car and then out of it and started running. The appellant chased and caught her within about 20 metres and carried her back to the car and placed her in it. He told her to put her clothes on. She began putting her clothes on. The police car eventually approached her and the appellant. The appellant told MC to pretend they were boyfriend and girlfriend. He said her family's home address although she had not given it to the appellant. This made her very scared as he could come back and hurt her and her family.
She and the appellant got out of his car about the same time as the police alighted from the wagon. She said that she did not tell them what had happened because she was too scared. The police officer asked her if she was all right. She tried to convey to the officer that she could not say anything in front of the appellant. It was obvious that she had been crying. However, she did tell the police that the appellant had some pills hidden in the back seat of his car. She had seen "some round things wrapped up in plastic tucked into the back seat." She asked the police if they could take her back to Fairfield Police Station. The appellant said that he would take her back, but she had responded to this effect, "No. I want to go back with the police officers". She got in the police vehicle. She saw the police officers speak to the appellant and shine their torches into his vehicle. She thought that the police officers did not get into his vehicle, but the evidence of Snr Cons Fenwick was to the contrary. She was not sure of the time at which she arrived at the police station with the officers. Snr Cons Thistlethwaite thought it was about 3am.
MC said that she was still crying at the police station. She could not sit down properly because she was "all cut" inside. Snr Cons Thistlethwaite said that when MC returned she was distressed and upset. Her face was red, and looked as though she had been crying. She looked in pain and was holding her lower genital area. She was in a much different condition from when he had spoken to her earlier in the evening. She asked to go to the toilet and he showed her where it was. Just after she had entered the toilet he heard crying coming from the toilet. Obviously something was wrong with her. He asked her how she was and what was the problem but she did not want to talk about it. She seemed upset and repeated words to the effect, "I don't want to cause any trouble, don't worry about it, it's all right."
MC sat in the front foyer. Over the ensuing period she went to the toilet on several occasions, holding her lower genital area every time she went there. During this period Snr Con Thistlethwaite approached her on several occasions and asked "Are you sure you're okay, do you want to talk" and on each occasion she replied, "It's not worth the trouble, don't worry about it."
Snr Cons Thistlethwaite was troubled and spoke to Sgt Novak about 4am. Sgt Novak went to the front counter and saw MC sitting in a chair in the foyer, sobbing. She was clutching her stomach area and sitting in a "bent over style position" as if in some sort of pain. Sgt Novak asked MC, "What is wrong with you?" She replied "Nothing, you wouldn't understand." Sgt Novak persisted, "I can see you have been crying and you look like you are in pain, we can't help you if you don't tell us." She responded "I was raped. I went to the teller machine to get some money and a man forced me into his car and drove me to a park and raped me and police came and drove me back to the police station." MC became very upset and started crying. Sgt Novak endeavoured to pacify her. He spoke with Cons Budini and Fenwick and then asked Leading Snr Cons Faul (a lady) to speak with MC.
Cons Faul made a contemporaneous note of their conversation. Cons Faul recorded that MC told her that while she was using the ATM a male person approached her from behind, put his hand around her mouth and dragged her over to his vehicle. The rear door was opened, she was pushed inside the rear of the car and the door closed behind her. The male person got into the driver's seat and drove off. MC told Cons Faul that the male said to her "I know you're a prostitute, stop playing games." She told him, "I'm not a prostitute. I just got out of detox. I've never been a pro."
Cons Faul stated that MC said that they drove to a park area somewhere in Fairfield which was unknown to her, that upon arrival he began to grab her on the breasts. He picked up some object – a piece of plastic tubing or something similar and penetrated her vaginally several times with that piece of tube. He then inserted his fingers into her vagina and, whilst doing that had scratched her inside, causing bleeding and pain. A police truck drove into the park area and he told her to pull up her pants or put her pants on and sit there as if nothing had happened. The police approached and spoke to both the appellant and MC separately and MC was taken back to Fairfield Police Station.
Cons Faul said that MC described the man she alleged had assaulted her but she did not record the description in her notebook. Cons Faul said that from memory the description was a Mediterranean appearance, middle Eastern, approximately 20-25 years old, 170 to 175 centimetres, wearing dark clothing. There was mention of a tattoo but she could not recall the details.
In cross-examination Ms Faul confirmed that MC did not tell her about leaving the car in a state of half undress and running towards the police wagon. The appellant relied on this omission and also on MC having the male seize her while at the ATM.
Acting Sgt Byrnes commenced duties about 6am and was informed that a lady required transport to Liverpool Hospital. He approached MC and asked what happened. MC replied, "A male dragged me into his car outside the Westpac Bank, as after my boyfriend got arrested I was trying to get money out, and he took me to a park here he raped me. When the police came I was too scared to say anything as he had my papers." A/Sgt Byrnes said that at the station she was initially unresponsive and fairly slow. At the hospital MC was dreamy or sleepy. On her way back from the hospital to the police station she became more coherent and it was possible to have a conversation with her. She said "He offered me $100 for sex but I said 'No', as I didn't need it as I had a boyfriend but I could have used the money." She told A/Sgt Byrnes. "I have never prostituted, though I had a drug addiction but I'm on Naltraxon now."
Snr Cons P G Fenwick, the driver of the police wagon entered the large Fairfield Showground car park about 2.45am. He came across a stationary red Holden Camira station wagon. Upon approaching that vehicle MC alighted from it. The car park has no artificial lights but Smithfield Road from which the car park is entered has ordinary street lighting. There were trees and mounds of earth in the car park and a lot of bush and scrub.
Cons Fenwick said MC alighted from the rear offside door of the car. He heard a male and a female voice but could not work out what was being said. MC said to the Constable "Can you take me to Fairfield Police station. I've just come from there, the police there." She also said, "Just get me away from here. I don't want to look at him, I don't know him." She was upset and distressed. At Cons Fenwick's insistence they walked about 15 metres from the car. The appellant alighted from the car.
Cons Fenwick said, "Tell me what has happened, it is obvious something has happened." She replied, "No just take me to my boyfriend, he's at Fairfield Police Station." MC was not coherent and was very confused. MC said words to this effect, "He has drugs, I think he put them on the back seat, they may be on him too."
Cons Fenwick approached the appellant who denied having anything illegal upon him and permitted Cons Fenwick to search him and then his vehicle. Cons Fenwick said that he got into the vehicle and searched it, using a torch and found no drugs. He next led MC to the police wagon. The appellant asked if he could talk to MC. Cons Fenwick replied, "No, I don't think she wants to talk to you."
In cross-examination Cons Fenwick stated that there was a lot of tree coverage in the car park and that it was very dark . He did not see a lady get out of the red Camira with one leg in her jeans, one leg out of her jeans and a bare torso.
Snr Cons P Jones introduced herself to MC about 9am on 14 December 2001. MC looked distressed. She had been crying, her face was red, her eyes were red. She looked as though she was in pain, she was walking very slowly and she was crouched over. MC was wearing a long navy blue jumper with "Champion" written across the chest in yellow stitching. The jumper came down to just above her knees. She was wearing a white singlet, blue denim jeans and a pair of joggers.
MC told Cons Jones that she was really sore and that the appellant really hurt her. Cons Jones took MC's statement over about 2½ hours.
About 10.35am Cons Jones, having obtained a warrant to search 25 Rawson Road, Fairfield West, left with other police to do so. Pursuant to information received and en route the police encountered the red Camira and the appellant, who was arrested. He accompanied them to his bedroom at 25 Rawson Road and police took the shirt, trousers, belt and shoes which he was wearing early on Friday, 14 December 2001. The appellant was bald. He had a solid build with, apparently, athletic arms. He probably weighed about 75-80 kilos. At the trial he was a little smaller. She modified her estimate of his weight in cross-examination. She had over-stated it.
Her enquiries revealed that MC entered Wisteria House on 10 December 2001 and left on 13 December 2001. That institution prescribed a variety of drugs.
Cons Jones agreed in cross-examination that MC stated that her jeans had been damaged. She agreed that MC's jeans had a big tear in the back. Cons Jones had not noticed this on 14 December 2001, but pointed out that the long jumper MC was wearing would have covered any tear.
Cons Jones recorded that while MC was dictating her statement she spoke about unrelated matters. MC began nodding off as though she was falling asleep and when she became alert again she seemed confused. Cons Jones thought MC may have been suffering from schizophrenia.
Dr P R Humphery stated that he saw MC about 6.45am on 14 December 2001. She supplied this history:
"She had been outside a bank about 1.30am and had been manhandled into a car and a hand placed across her mouth. While being driven to a park she noticed that the doors of the car had been locked and accused by a male of being a prostitute. At the park the male pulled her pants off and removed her underwear and had taken a pole and shoved it into her vagina. He then put his fingers into her vagina. She struggled and tried to prevent this particular incident and tried to run away. A patrolling car had then been passing, she'd attracted that attention and had been taken to the police station. During the episode she had been forced to have a drink which tasted like cola."
Dr Humphery described MC as alert, lucid, a very clear historian and as apparently very calm. Dr Humphery noted some fraying in the crotch area of MC's jeans. By "fraying" he meant that the fabric was starting to pull apart, He found:
·swelling on her lower lip
·abrasion on the dorsum of the left hand over the third metacarpal (The abrasion seemed to be old but with surrounding redness consistent with a re-injury on top of an older injury)
·multiple scratch marks on the inner upper thighs
·redness on her knee, indicating a new injury on top of a previous one
·some redness on the area adjacent to the right nipple
- MC claimed she had been bitten but there were no teeth or other identifying marks
·marked swelling on the outside of the vaginal area (the labia majora) with the swelling being more on the left than the right side
·fresh bleeding in the high vagina
·fresh abrasions on the posterior wall of the vagina (ie, if lying down, on the back wall on the bottom part or floor of the vagina).
Dr Humphery said that his findings were consistent with the history MC had given and that bruising can take several days to become apparent.
In cross-examination Dr Humphery agreed there was a hole in the jeans above the fraying. He had not recorded that there was a hole when he saw MC and the jeans. The doctor agreed that there was always a possibility that there could be ways other than those given in the history that the injuries could be sustained.
Dr L Morton said that MC attended her surgery on 17 December 2001 accompanied by her mother. Upon examining MC Dr Morton found externally:
·a hand bruise on the inner part of the left knee
·faint bruise over the bottom end of the sternum, the breastbone
·discharge from the vagina which did not smell very good
·scratches about the vagina and about the thighs about three inches long (that is about 2 or 3 scratches on each of the inner thighs)
On internal examination Dr Morton found:
·the cervix was bruised
· lacerations in he vaginal area (but not through to the rectum)
·a traumatised vagina generally
Dr Morton prescribed an antibiotic and requested MC to use salt baths to the vaginal area.
Dr Morton recorded this succinct history:
"She reported that on the previous Friday at 2 o'clock in the morning she was walking along the street, she was pulled into a car by a male who then inserted a pole into the vaginal area and then assaulted her further with the fingers. After this happened she went to a sexual assault centre who examined her and swabbed her and recommended that she required further follow up with another doctor. "
That history was obviously a summary.
Mr W J Allender, a forensic scientist specialising in medicinal chemistry, gave evidence as to the results the tests of MC's blood and urine. He had the benefit of an analyst's certificate. The analysis of the blood revealed the presence of the drug Delta 9THC, the active component of cannabis. Also present was Delta 9THC acid, a metabolic acid. He estimated that Delta 9THC had been present at quite an appreciable level about three hours prior to the sample being taken but he was unable to say when the cannabis had been consumed as it is stored in the fat cells. The drug effects the short term memory after the ingestion.
Methamphetamine (known as speed) at quite a low level was also present in MC's blood. It had probably been consumed four to five hours earlier. It speeds up the body's reactions. Initially, it has a stimulating effect but then there is a drug induced fatigue phase where a person tends to become drowsy and sleepy.
As to the morphine which was present it would have been ingested quite some time earlier. Mr Allender could not say from what source the codeine present in the urine had come. Clonazepam, whose presence in MC's blood was also detected, is an anti-convulsant. The level was double the therapeutic level. This drug has sedating properties and a person becomes quite drowsy if not stabilised on the drug.
Diazepam, nordiazepam, oxazepam and chemazepam, which were also detected, were probably metabolites of clonazepam and have sedating properties. The body breaks these down. They have addictive effects. Quinine was also detected in the urine sample. It could have come from a variety of sources.
In cross-examination Mr Allender accepted that the cannabis was unlikely to have been taken after MC's return to the police station about 3am. For it still to be detectable when the blood sample was taken quite a level of cannabis must have been ingested. However, it was not possible to say whether it had been taken before or after 3pm on 13 December 2001. The combination of drugs taken had an additive effect.
Mr Allender would have expected MC to have been sedated between 1am and 3am. He agreed that four years of usage of heroin and other types of drugs may have been sufficient time to develop a degree of tolerance.
MC was skilfully cross-examined by Senior Counsel for the appellant over 24 pages on the afternoon of 25 March 2003 and 14 pages on the morning of 26 March 2003, that is for about 1¼ to 1½ hours overall. These explanations and points emerge.
She said that she did not try to get out of the car when the appellant went around the car to get into the front seat because she was scared, she could not think and froze. She had a bad knee and was unfamiliar with the Fairfield area. She did not complain to police when they arrived because the appellant knew her address and she was scared. Her address was on her Centrelink card and she had told this to Cons Jones. She denied that she offered to give the appellant a good time for $50 and denied that he had asked her for sex for money. She denied that she told Acting Sgt Byrnes on the return journey from the hospital that "he offered me a hundred dollars for sex … but I said no, I didn't need it because I had a boyfriend … but I could have used the money." She said a few police officers asked her if she had been prostituting herself and she had told them she hadn't been. She had never prostituted herself.
MC denied that she had asked Cons Jones "Have you slept with him too?" MC denied talking to people who were not there during the course of making her statement with Cons Jones. She said she was in full control of her mental faculties but was just very tired. The jury may have been prepared to make some allowances for her tiredness. They may also, in view of Mr Allender's evidence, have made some allowance for her being under the sedating effects of some drugs. She had been alert and a keen historian when examined by Dr Humphery.
MC denied that when she saw the appellant he was on the opposite side of the road. She told Cons Jones about the rip in her trousers but did not tell the male officers as she did not have any underwear on. The clothing she had supplied to Cons Jones nine days later had not been washed since she had worn them on the night of the offence.
It was put to MC rather strongly as the fact that she told Dr Morton that as she was walking home she was pulled into a car. This question, which seemed to admit of no doubt, elicited the response "I only told her that because I didn't want to tell her that my boyfriend was in the police station." (T19 of 26/3/03)
By contrast, Dr Morton had no record in her notes of MC saying this and thought that when she (Dr Morton) had included this in her statement she had assumed it. (T37-38 of 26/3/03). Too much should not be made of this point.
MC said that the amount of heroin she took on 13 December 2001 relaxed her but did not make her close her eyes. She denied that the heroin affected her memory of things that happened both prior to and after she took it. She had some marihuana a couple of days before.
The Appellant's Case
The appellant gave evidence that he came to Australia on 28 July 1995, aged 15. He was injured at work on 18 September 2001. Since that time he has not been able to work full time. He has been performing light duties for 5 hours per day, 4 days per week. He bought a house for himself and his family (parents and brothers) for $200,000, borrowing about $199,000 to do so. He was paying off the loan at the rate of about $1400 per month.
The appellant did not work on 13 December 2001. About 7.30pm to 8.00pm he and his brother Shon Ander went for a drive in his brother's newly acquired new car to the city. His brother wanted to go home because he had to work the following day.
The appellant stated that as they passed Fairfield Station he told his brother to stop as he was going to Fairfield RSL or to the Cambridge Tavern to get something to eat. His brother stopped and the appellant left the car. It was about 11.15 to 11.30pm. He went to the Cambridge Tavern. He stayed there for a period but was not sure how long. He had one schooner of VB, a hot dog and played the poker machines briefly. He left the Tavern and eventually walked along Smart Street. A girl (MC) approached him. She was crying and asked him for 40 cents to make a phone call. He told her that he did not have any change. He deposed to this conversation:
Appellant:"What happened to you?
MC:Three men, they just raped me and stole my money.
Appellant:Have you been in the police station?
MC:Yes, I just have been to the police station, I just want to go home
Appellant:Do you want me to give you home a lift (sic)?
MC:Yes."
She told him that she lived in Parramatta but did not supply her address. He had his car at his home and deposed to this conversation:
Appellant: "If you want me to give you a lift you have to come with me. I just live in Fairfield West. You have to come with me, we catch a taxi. I take you by taxi, I take you home. I take my car, I give you a lift.
MC:Yes."
The appellant said MC walked in front of him. He remarked to her that she had a nice tattoo. She smiled and asked him if he had any tattoo. He replied in the affirmative, stating that it was on his hand. He showed it to her. He greeted a friend, Monir Korya Esho as they walked along. They caught a taxi to his home.
After paying $7 for the taxi and some comments about the house lights, the appellant went inside his home. His brother's car was parked behind his car in the driveway and the appellant had to obtain the key to his brother's car and shift it. Having obtained that key, the appellant reversed the car out into the street. The appellant went back inside the house and put the key back in his brother's pants. As the appellant was going back out his mother asked him, "What are you doing, where are you going" He explained the position about MC and told his mother than he wanted to give MC a lift home to Parramatta. The appellant said that he then left with MC. Just before they reached a service station MC asked him to buy her a drink. He stopped at the service station and got her a drink and a trigger (chewing gum) for himself. He said:
"I want to continue drive to Parramatta, she said to me, 'no, no, please, my father he will be very upset if he see you with me in the car, can you please stay with me for twenty minute and then take me back to the police station and I want the police to take me home' ."
The appellant said that he did not know what to do when she said this, or where to go. He drove along Smithfield Road and on approaching Fairfield Showground said to MC, "I'll stop here maybe for 15 minutes and then I drive you again and take you back to police station and come home." When he stopped the car in the car park she put her arm around his shoulders and started rubbing. She urged him to sit in the back with her. They both moved into the back seat of the car. He stated that she said, "If you want to have some fun for $50" and that he replied, "Sorry I have no money and I don't pay." He said that she replied, "Bullshit, what do you mean you have no money? You have money." He said that she became angry because he did not give her the money. As they were talking the police car arrived. He said that the police spoke to her and the police spoke to him. They asked for his licence, which he gave them. They then enquired, "Do you have any drugs?" He replied in the negative. The police searched him and his vehicle. The police would not allow him to talk to MC and advised him to go home. The appellant denied that either he or MC took off their clothes or that he took off her clothes in the vehicle. He denied inserting any object or his fingers in her vagina. He denied chasing her and bringing her back. He denied ripping her jeans. He denied pulling her top down and doing anything with her breasts. While he did not know whether he locked the back doors of his car prior to the police arriving he did not think that he would have done so.
The appellant said that he presently weighed 58-60 kilos. In December 2001 he weighed 63 to 64 kilos. (He went to the gym prior to his accident at work on 18 September 2001 to build up his muscles).
I summarise the appellant's responses in cross-examination. He agreed that he was familiar with the car park area of the Fairfield Showground. He estimated that he arrived at Fairfield Station after the drive to the city between about 11pm and 11.30pm. He went to the Cambridge Tavern on his own and intended to catch a taxi home. He stayed at the Tavern for about 2 hours, leaving it about 1.30am. He did not speak to anyone at the Tavern except the persons from whom he bought a hot dog and a beer respectively. He played the poker machines but did not spend very much.
As he walked along the street to go to Fairfield Station MC came up to him. She was crying and upset. She asked him for 40 cents to make a phone call. He had no change but he did have some money. She told him that three men had raped her and stolen her money. He probably had his mobile phone with him but it did not occur to him to let her use that to make her phone call nor to obtain some change. The appellant thought the best thing to do for a girl who had been raped was to give her a lift home.
The appellant had known Monir (to whom he spoke on his way to the railway station) for two to three years. The appellant had a discussion with MC about her tattoo within two minutes of meeting her. She was walking slightly in front of him and he saw the tattoo on her back. She asked him if he had any tattoos so he pulled up his shirt sleeve and showed her the tattoos on his arm.
The service station at which he bought the drink for MC and where she told him that she wanted him to stay with her for 20 minutes and then go to the police station was less than a kilometre from the police station. It was about 7 to 8 kilometres from the police station to the Showground. He said that the decision to enter the Showground car park was made just as he approached the entrance to it.
He thought that it was odd for a woman who had just been raped to be put her arm around him and start rubbing. She was insistent that they move to the back seat and he complied. He thought that she wanted to play up and have sex. He said that he did not know what to do and moved to the back seat because she told him to do so. Some juries would find that hard to accept. In re-examination the appellant stated that he had tried to obtain the service station videos for 14 December 2001 but they had been destroyed by that service station.
Monir Korya Esso said that on the night of Thursday, 13 December 2001 he went to the Fairfield RSL Club. He left about 1.30am. As he was walking to his fiancee's house via Smart Street, he saw the appellant and a girl and greeted him as they passed. He heard about the appellant's arrest about two weeks later from the boyfriend of the appellant's sister.
Shon Andr gave evidence that he was the brother of the appellant and purchased a new Holden Vectra on 28 November 2001. About 8pm on 13 December 2001 he left home with his brother and drove to the city. On their return they arrived at Fairfield Station about 11.15pm to 11.30pm. The appellant got out of the car. Shon Andr drove straight home, parked his car behind his brother's car and went to bed. Some time later the appellant turned on the light in his brother's bedroom and took a key from his pocket. Shon Andr heard the sound of a motor vehicle. The appellant returned the key. Shon Andr did not hear the appellant talk to anyone.
Khereya Morad, the mother of the appellant, lived in Fairfield West with her husband, the appellant and Shon Andr. She went to bed about 11pm, waking up about 2.15am, when she heard the sound of a motor vehicle. She went outside and saw the appellant standing next to his car. The mother was told by the appellant that the girl had been attacked by three men and that he was going to take the girl to Parramatta to help her. The mother went inside the home.
The Rev Ashur Lazar, the parish priest at St Hurmized's Cathedral (Holy Apostolic Catholic Assyrian Church of the East) gave evidence that he had known the appellant since 1996-1997 as one of his parishioners who attended every four to six weeks. He had been to the family home and knew the family very well. He knew the appellant very well. The priest said that the appellant was a hardworking young man, well respected and honest. The prosecutor did not dispute that the appellant was a person of good character. (SU8) He had no previous convictions.
Course of Trial
The judge summed up carefully and in considerable detail. The directions of law which he gave were clear and correct and he provided the jury with a helpful review of all the evidence. He summarised the prosecution evidence and the appellant's evidence, quoting the more important parts. The judge also summarised the evidence given on behalf of the appellant. The judge put the principal submissions on behalf of the Crown and the appellant to the jury. It was a fair and comprehensive summing-up. Senior counsel for the appellant sought no further directions.
The jury retired to consider its verdict at 2.37pm on 31 March 2001 and separated at 4pm. Early on 1 April 2001 the jury asked to hear again the medical evidence of Dr Linda Morton and Dr Paul Humphery. The judge then read to the jury the evidence of Dr Humphery followed by the evidence of Dr Morton. The jury retired at 10.55am to further consider its verdict. Later that morning the jury sent the judge this note "Unable to reach a decision on any three indictment, appear to have a hung jury." The judge gave the standard Black direction. The jury retired to further consider its verdict at 12.10pm. Shortly before 4pm the jury sent this further note, "Unlikely to finalise decision today, would request we meet again at 9.30 Wednesday." The foreman of the jury told the judge that some progress had been made. About 4.03pm the judge permitted the jury to separate. At 10.15am on Wednesday, 21 April 2003 the jury returned with their verdicts. They had the considerable advantage of seeing and hearing the complainant, the appellant and all the other witnesses.
Appeal Ground 1 reads:
The verdict in respect of count 2 is unreasonable and cannot be supported or otherwise represents a miscarriage of justice having regard to the evidence and to the verdicts of not guilty in respect of counts 1 and 3.
The appellant submitted that on the whole of the evidence it was not open to the jury, acting reasonably to be satisfied beyond a reasonable doubt of the appellant's guilt. The verdicts of not guilty of counts 1 and 3 were relied upon. The judge did not give a direction in accordance with R v Markuleski (2001) 52 NSWLR 82 per Spigelman CJ at paras [185]-[191], per Wood CJ at CL at [256]-[257] and per Grove J at [279]-280]. As Wood CJ at CL said at [257]:
"…there is merit, as a matter of common sense in reminding the jury that the existence of a question mark in their minds concerning the credibility, or reliability of the evidence given by a complainant or central witness in relation to one count, may properly be taken into account, in conjunction with all the other circumstances of the case, when they consider the reliability or credibility of the evidence of that complainant or witness in relation to the other counts."
Reliance was also placed on this passage at [258]:
"An additional consideration arises so far as the giving of a direction of this kind may alleviate the concern which might otherwise subsequently arise, where differing verdicts are returned in relation to a multi count indictment. In such a case, the court may feel greater confidence that the jury has focussed closely upon the issues of reliability and credibility of the evidence going to each charge, and has found good cause for differentiating between the individual counts."
The appellant submitted that there were strong reasons for regarding these verdicts as compromise verdicts. The appellant pointed out that one clear distinction between the evidence as to count 1 and count 2 was that the appellant had called other witnesses to corroborate certain aspects of his version of how he and MC came to be together in the car. Thus the verdicts on counts 1 and 2 were not technically or factually inconsistent. This distinguishing feature did not apply in count 3.
It was further submitted that there was no rational or reasonable explanation for the verdicts and that this led to a strong suggestion of compromise. This was reinforced by the course of the jury's deliberations and the note that they were unable to reach a decision on any of the charges.
The appellant contended that the acquittals on the first and third counts establish that the jury had a reasonable doubt about the guilt of the appellant and the credibility of the complainant which ought, in the circumstances of the present case, to have resulted in the appellant's acquittal of all counts. Reliance was placed on Jones v The Queen (19877) 191 CLR 439 at 453 per Gaudron, McHugh & Gummow JJ and R v Markuleski, supra at [234]. The appellant drew attention to these factors:
(a)There were acquittals on 2 out of 3 counts
(b)Positive evidence was called by the appellant to establish the falsity of MC's version as to how they came to be together in the car
(c)The complainant's evidence of how she was picked up was fanciful and inherently improbable
The appellant submitted that the appellant's acquittal on counts 1 and 3 meant that the jury had serious doubts about the complainant's credibility and that the present case was one in which the doubts experienced as to counts 1 and 3 ought to have led to the appellant's acquittal on all counts.
The appellant pointed to the following matters in combination in support of its submission that the jury ought to have entertained a reasonable doubt.
(i)the conflicts between MC's evidence and that of Monir Esho, Shon Andr and Khereya Morad. Their evidence could not be true if her version of what happened was correct
(ii)The conflict between MC's evidence as to her drug use and the evidence of Mr Allender and the analyst's certificate as to what was found, namely, cannabis, methamphetamine (speed), morphine (indicative of heroin) codeine, clonazepam and its probable metabolites of diazepam, mordiazepam, oxazepam and chemizepam. At T45 she said that she and her boyfriend had some heroin after they left Wisteria House but she had no other drug after leaving Wisteria House and going to the police station at 10pm. She said that she had some cannabis a couple of days before. She gave no satisfactory explanation of the drugs found within her.
(iii)her improbable assertion that although it was against the rules of Wisteria House, a doctor said that it was all right to have some cannabis (but not there) as it assists in de-toxing. She agreed that she kept her taking of cannabis from the staff.
(iv)her inconsistencies as to how long she had been in Wisteria House. (see Extract T43-44 of 25/3/03)
(v)she made no attempt to get out of the back seat of the vehicle while the appellant went to the driver's seat. She said that she was scared, she was not thinking and it all happened so quickly.
(vi)she stated that at the Fairfield Showground she first got out of the appellant's vehicle half dressed and ran towards the police wagon, but the appellant chased her and dragged her back to the car. The appellant denied this and the police did not see it. Nor did the police hear her screams for help. The windows of the police wagon were wound up.
(vii)she maintained her allegation that the appellant had "pills" in his car and explained why the police found nothing saying "He only shined his torch in the back seat, he didn't look in between the crack or anything." (T37 of 25/3/03) Snr Cons Fenwick said that he entered the appellant's vehicle and used his torch. As might be expected he made, according to his evidence, a thorough search.
(viii)Snr Cons Fenwick did not recall seeing any object such as a metal or plastic tube which might have been used to insert in MC's vagina. He was not looking for such an object. No such object was ever found or recovered.
(ix)she denied saying to Acting Sgt Byrnes who took her to and from the hospital that "he offered me a hundred dollars for sex". His evidence was to the contrary.
(x)she denied asking Snr Cons Jones "have you slept with him too". Her behaviour while making her statement was odd. At times she appeared to be speaking to non-existent people in the room and referring to unrelated matters.
(xi)she agreed she had told Snr Cons Jones in February 2002 that she did not want to proceed with the matter but denied that this was because the allegations were untrue
(xii)she claimed to have given a different account as to what she was doing in the street at the time to Dr Morton "because I didn't want to tell her that my boyfriend was in the police station." (Too much should not be made of the point for the reasons given elsewhere)
(xiii)the failure of the complainant to make a complaint of sexual assault to the police in the Showground car park. Her explanation for failing to make a complaint at that time was that she was scared because the appellant had her address. Nevertheless she was prepared to allege to those police that the appellant had pills.
(xiv)the complainant's failure to tell Snr Cons Thistlethwaite that she had been raped. Sgt Novak elicited such a complaint and left it to Snr Cons Faul to obtain further details. The complaint to Sgt Novak was a fresh complaint in that it was made within 2-3 hours of the alleged sexual assault.
(xv)MC, in giving her version of events to Snr Cons Faul, did not tell her of running from the appellant's vehicle half dressed for about 20 metres and being chased and caught by the appellant and returned to his car. What the police saw in the car park was consistent with his version of events
(xvi)MC was keen to obtain money with which to buy heroin; see, for example, her earlier participation in shoplifting.
There were inconsistencies in and unsatisfactory aspects of MC's evidence, particularly when she dealt with her drug use and contradicted police officers who were trying to help her. From the evidence she comes across as a young lady affected by drugs to some degree.
During argument the Court raised with counsel the medical evidence and the observations of the police officers of the complainant and her condition. It was these matters on which the jury were entitled to place considerable weight.
Counsel for the appellant stressed that the medical evidence did not discriminate between the effects of counts 2 and 3. The doctors were not asked and did not say that the injuries which they found were more likely to result from the insertion of the object than the insertion of the appellant's fingers. This, it was submitted, was matter for medical evidence.
Additionally, the court was reminded that when MC spoke to Snr Cons Faul she (MC) had said that while inserting his fingers into her vagina he had scratched her inside, causing bleeding and pain. Her evidence, which has been summarised earlier was that the insertion of the object was "very very painful" and "it seemed like it was going on forever. She said that when he inserted his fingers, "Well it was already painful from what just happened, … it was the same, horrible. Not as painful."
According to MC the appellant inserted the object into her vagina virtually immediately after she kneed him in the testicles. The jury may have thought that this action of MC would almost certainly have provoked an immediate response, assuming that they accepted this portion of her evidence.
There was evidence from which the jury could infer that immediately after the kneeing in the testicles and the insertion and manipulation of the object for an appreciable period this conduct of the appellant caused sustained pain to MC and was responsible for at least some of the injuries including, at least, some of the marked swelling on the outside of the vagina, some of the bleeding in the high vagina and some of the fresh abrasions on the posterior wall of the vagina, the bruising to the cervix and the traumatised vagina generally.
The appellant contended that this was going beyond common knowledge and the application of permissible reasoning. It was the appellant's contention that on the evidence there was no rational basis for finding count 2 proved beyond reasonable doubt and acquitting the appellant on count 3.
The incident of which MC spoke was a relatively short one and the jury could have viewed it overall as one incident and one offence. There is a certain artificiality in trying to split up what took place into two offences, even if this be technically correct. The jury may have taken the view that a verdict of guilty on count 2 sufficed.
An alternative view which may have been taken by the jury is that, after the prolonged and "very very painful" insertion of the object in the dark, they were not satisfied beyond reasonable doubt as to the insertion of the fingers. MC had described this as less painful. The jury may not have accepted that she could tell beyond reasonable doubt that the fingers had been inserted. Her recollection of that may have been clouded or confused by the circumstances of the evening and the preceding trauma. They may have thought that the fingers caused the scratches on her inner thighs and some of her other external injuries. The jury may not have attached great weight to the account of Snr Cons Faul of the terms of MC's statement to her as to the insertion of the fingers and the damage they caused. The jury may have thought that MC's complaint of the prolonged insertion and manipulation of the object in the vagina, which she described as very very painful, was correct. That would accord with everyday understanding.
Nor could the jury leave out of account the unusual story of the appellant. He left his brother's car between about 11pm to 11.30pm and went to the Cambridge Tavern. He there seemingly spent about 1½ hours to 2 hours alone. He next walked alone along the almost deserted streets of the Fairfield Shopping Centre and decided to help MC who wanted to make a telephone call. He decided to take her home. However, in his car at the service station she wanted him to wait with her for 20 minutes and then take her to the police station. He decided to drive around and left the area in which the police station was situated. However, he ended up taking her to a large, deserted car park with a lot of bush and in a place where it is quite dark. The car park is some 7-8 kms from the police station. At her urging he joined her in the back seat expecting to play up, including having sexual intercourse. He refused to pay her for sex. Apart from an argument nothing happened before the police arrived. The jury obviously thought that that improbable version of events in the car was not reasonably possible.
It was apparent to Snr Cons Fenwick at the Showground car park and Snr Cons Thistlethwaite at the police station that all was not well with MC. She appeared to be upset, They endeavoured to ascertain the problem but MC would not tell them. Sensibly, after persisting, Snr Cons Thistlethwaite sought assistance. Eventually Sgt Novak, a more senior officer, was able to persuade MC to tell him. MC did complain to a police officer within 2 to 3 hours of what she alleged. In the circumstances, the jury was entitled to take the view that any delay in complaint was of little consequence. The observations of various police officers of MC clutching or holding herself in the areas of the crotch and stomach and her general state of distress all spoke of an attack of some severity upon her.
The evidence was that while MC was at the police station, prior to leaving it to go to the Westpac ATM, she was not distressed and did not appear to be in pain. Her distress and apparently painful condition when she returned to the police station about 3am were in striking contrast and pointed to something serious having happened to her.
I have examined and assessed the whole of the evidence. It was open to the jury upon the whole of the evidence to be satisfied beyond reasonable doubt that the appellant was guilty of count 2 in the indictment. See M v The Queen (1994) 181 CLR 487 at 493, Jones v The Queen (1997) 191 CLR 439 and MFA V The Queen [2002] HCA 53. Appeal Ground 1 should be rejected.
Appeal Ground 2 reads:
The learned trial Judge erred in failing to direct the jury that if it had a reasonable doubt in relation to one or more of the charges that it should take such doubts into account in assessing the credibility of the complainant in relation to the other charges.
The appellant relied on the observations of Spigelman CJ in R v Markuleski at [184]-[187], [189]-[196], Wood CJ at CL at [250]-[259] and Grove J at [279].
The appellant submitted that it was crucial that the jury be told that any doubt they may form with respect to one aspect of MC's evidence ought to be considered by them when assessing her overall credibility and, therefore, when deciding whether or not there was a reasonable doubt about MC's evidence with respect to other counts.
Both in his opening remarks and in his summing-up the judge instructed the jury that they would need to consider the evidence in support of each charge separately, that they would be called on to deliver a separate verdict in respect of each charge and that it did not necessarily follow that the same verdict would be applicable to all the charges.
The judge at SU6, after pointing out that MC was essential to the proof of the Crown case, directed the jury to examine and scrutinise her evidence with great care before they decided that a verdict of guilty should be brought in. He added that they should only find the appellant guilty if they were satisfied beyond reasonable doubt of the truth of MC's evidence. The judge gave the conventional direction that the jury could accept part of the evidence of a witness and reject other parts.
The judge additionally warned the jury that MC's evidence may be unreliable because of her mental ill health resulting from the consumption of illegal substances. He directed them to exercise caution in assessing her reliability. The judge directed the jury:
"You are perfectly entitled to act upon the evidence of MC if, after considering it with great care, considering all the circumstances which you regard as relevant to its evaluation and paying heed to the caution I have given you, you are satisfied beyond reasonable doubt of its truth and accuracy. Of course in making your assessment of her evidence you are entitled to have regard to all the other evidence in the case. You are not required to consider her evidence in a vacuum."
The judge's review of the evidence, which was fair and balanced revealed the weaknesses in her evidence and the Crown case.
The judge referred to the appellant's submissions that MC was affected by drugs and that would affect her reliability as a witness, her unrelated behaviour and conversations with others not in the room when speaking with Cons Jones and MC's enquiry to her of whether she had slept with the appellant too and that MC was a drug addict who behaved bizarrely and could not be accepted as reliable. The judge summarised the other submissions of counsel for the appellant. They pointed to MC being unreliable. The appellant made an overall attack on her credit as appears from the summing-up.
The summing-up, as a whole, would have left the jury in no doubt that the critical issue was the reliability and truthfulness of MC. It exposed the criticisms of her evidence and the Crown case.
The jury could not have failed to realise that they had to make a careful assessment of her credit and scrutinise her evidence with care. As to count 1 there was a body of evidence which appears to have caused the jury to have a reasonable doubt. There was supporting medical evidence on count 2 and the telling observations of the police officers of her condition before she left Fairfield Police Station and after she returned about 3am. I have earlier explained how the jury may have approached count 3.
In the circumstances of the present case, as Markuleski direction was not required. Appeal Ground 2 should be rejected.
It follows that the appeal against conviction should be dismissed.
There is a clerical or transcription error at the end of the judge's remarks on sentence (last line but 2). The non-parole period is to expire on 11 September 2005 and not 22 September 2005. The judge's endorsement on the indictment specifies the correct date.
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LAST UPDATED: 07/01/2009
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