Regina v RCL

[2002] NSWCCA 334

Reported Decision: (2002) 136 A Crim R 421

New South Wales

Court of Criminal Appeal

CITATION:	Regina v RCL [2002] NSWCCA 334
FILE NUMBER(S):	CCA 60758/99
HEARING DATE(S):	31/7/02
JUDGMENT DATE:	12 December 2002
PARTIES :	Crown RCL
JUDGMENT OF:	Santow JA at 1; Hidden J at 2; Adams J at 40

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/21/0392
LOWER COURT JUDICIAL OFFICER :	Grogan DCJ

COUNSEL :	L Flannery - Applicant GIO Rowling - Crown
SOLICITORS:	DJ Humphreys - Applicant SE O'Connor - Crown
CATCHWORDS:	CRIMINAL LAW: Appeal against conviction - detaining for advantage, sexual assault (3) - found guilty of detaining for advantage only - whether verdict of guilty unreasonable in light of acquittals on other counts - whether directions about complainant's credibility adequate.
LEGISLATION CITED:	Crimes Act 1900
CASES CITED:	R v Markuleski (2001) 52 NSWLR 82 Jones v The Queen (1997) 191 CLR 439 Mackenzie v The Queen (1996) 190 CLR 348 at 366 R v Kirkman (1987) 44 SASR 591 per King CJ at 593;
DECISION:	See para 39

60758/99
SANTOW JA
HIDDEN J
ADAMS J
Thursday, 12 December, 2002

REGINA v RCL

JUDGMENT

1 SANTOW JA: I agree with Hidden J.

2 HIDDEN J: The appellant was tried in the District Court upon an indictment alleging four offences committed against his estranged wife. There were three children of the marriage and the complainant had children from a previous relationship. For the sake of those children the names of the appellant and the complainant will not be published.

3 The charges arose from the same incident, when the appellant is alleged to have forced the complainant at knife-point to accompany him to his car, to have had sexual contact with her against her will in the car, and to have driven her to his home where he had sexual intercourse with her again, also without her consent. The four counts in the indictment were as follows:

1: Detaining for advantage (s 90A Crimes Act);
2&3: Sexual intercourse without consent in circumstances of aggravation (s 61J Crimes Act);
4: Sexual intercourse without consent (s 61I Crimes Act).

4 The trial took place in 1999. The jury found the appellant guilty of the first count, but not guilty of the others. He was sentenced to a term of imprisonment which has since expired. He has appealed against his conviction.

5 The appellant and the complainant were married in 1989 and separated in 1997. The incident with which we are concerned occurred on Saturday 3 October 1998. At that time the complainant was living at Woodpark (a south-western Sydney suburb) with the children of the marriage and the children from the previous relationship, two teenage boys. One of those boys, to whom it will be necessary to refer, I shall call “B”. The complainant was working at a supermarket in Merrylands. The appellant was living at Greystanes. They continued to see each other until August 1998. Thereafter, according to the complainant, he kept visiting her at her home or at the supermarket against her wishes.

Crown Case

6 At the time of the incident the children of the marriage had been staying with the appellant for part of the school holidays. The complainant was working at the supermarket on the night of Friday 2 October 1998. The appellant arrived there with the children but she asked him to leave. Because she was finishing work late at night, the complainant had an arrangement to stay overnight at the flat of a friend, David Aldahoudi, who also worked at the supermarket and who lived nearby. She had a key to the flat. Mr Aldahoudi was working that night but his shift did not finish until four o’clock the following morning.

7 The complainant walked to the flat after she had finished work, had a meal and a shower, watched television, and fell asleep at about 12:30 am. It was a secure block of flats, and at about 3 am she was awoken by the buzzer for the flat activated from the external door of the block. As she did not know how to open the door from within the flat, she went downstairs. She left the door of the flat open and the lights and the television on. She was wearing only a dressing gown and she had nothing on her feet. She opened the external door to find that the caller was the appellant. Significant aspects of what happened thereafter are in dispute.

8 The complainant’s evidence was that the appellant said, “You knew I’d track you down”, and pushed her against a wall in the foyer area. He produced a knife and repeatedly threatened her, saying, “I’m going to slice your guts out” and “I’m going to kill you now and I was hoping that other bastard had opened the door so I could take him out first.” He appeared agitated and was making jabbing motions with the knife towards her face and stomach. She was crying and trying to calm him down, saying, “Well, can’t we talk about this?”

9 She asked him if she could go back to the flat to get a cigarette, but he said, “You’re not going anywhere.” He grabbed her by the arm, still holding the knife, and said, “Don’t pull away or this will go straight through you.” He then walked her to his car, which was parked nearby. She accompanied him because she feared that, if she did not, he would kill her. He placed her in the front passenger seat and fastened the seatbelt. After he got into the car he again brandished the knife and said, “It took me a week to sharpen this just for you.”

10 He drove to the Merrylands swimming pool. On the way she kept saying, “Where are you taking me? I want to see the kids.” He parked at the pool and kept waving the knife near her face, threatening to kill her. She asked him to release her seatbelt but he refused. However, when she asked him for a cigarette he complied, rolling one for her. He also wound the window down when she asked him to.

11 After she had finished the cigarette he said, “You’ve got to prove that you love me.” At knifepoint he directed her to climb into the back seat. He also did so, saying, “I should take your guts out now.” He placed the knife on the interior ledge of the rear window, removed his clothes and directed her to “lay back”. He then performed cunnilingus upon her (the second count) and had vaginal intercourse (the third count). She did not consent to this; rather, she submitted through fear that he would kill her.

12 The sexual activity ceased when a police car pulled up behind them. He threatened her and told her that, if the police approached, she should tell them that they were “a married couple just sitting here.” In fact, the police car moved on. She observed him to be “getting agitated again”, and she asked him to roll her another cigarette in an attempt to “settle him down.” They returned to the front seats of the car and by this time day was dawning. She said that she wanted to see the children and they drove to his home at Greystanes.

13 When they arrived there, he observed that she was tired and suggested that she go to the bedroom to sleep. She got into the bed to find that one of their daughters was sleeping there. He took the girl to her own bed, returned, undressed and got into the bed with the complainant.

14 He told her to remove her dressing gown, which she did. He said, “We’ll make love all over again and again.” He kept saying, “I want to make love to you all day, all night.” He then got on top of her and had vaginal intercourse, while she pretended to be asleep (the fourth count). Her evidence was that, again, she submitted because she did not “have the energy to fight anymore.” She agreed in cross-examination that he had obtained a vibrator and that it was used. Asked in re-examination how it had been used, she said that she could not recall as she was “too sleepy.”

15 He then obtained a flannel to wash her. She slept for some time and, when she awoke, he prepared some coffee and allowed her to have a shower.

16 In the meantime, Mr Aldahoudi had returned to his flat from work a little after 4 am to find the door open, the lights and television on and the complainant’s clothes, her bag and other personal effects on the lounge. On a table he saw the keys to the flat which he had given her. He rang her home at Woodpark and spoke to her son, B, to find that she was not there. He picked B up and brought him back to his flat. Eventually, he became sufficiently concerned about her absence to ring the police.

17 As a result, Constable Kate Nichols of Merrylands Police Station rang the appellant’s home. The appellant answered the phone and put the constable on to the complainant. Put briefly, the constable told the complainant that there were concerns for her safety and wanted to know if everything was all right. The complainant said that she was “O.K”, but the constable thought that she sounded “a bit nervous, a bit tense.” In evidence, the complainant said that she felt inhibited about what she could say to the constable because the appellant was standing right next to her and had told her to tell the police that she was happy to be there.

18 For reasons which need not concern us, Constable Nichols later rang the appellant’s home a second time and again spoke to the complainant. By discreet questioning she was able to ascertain more on this occasion. She asked, “Did your husband take you to where you are now?”. The complainant said, “Yes.” She asked, “Did he take you from your friend’s house?”. The complainant said, “Yes.” She asked, “Did you want to go with him?”. The complainant said, “No.” The constable then said that she would send police to the home.

19 Police did arrive and the appellant was arrested. A knife was found at the house and, in evidence, the complainant identified it as the one with which he had threatened her. Later, in an electronically recorded interview, the appellant denied the complainant’s allegations.

Defence case

20 The appellant gave evidence. He said that on the night in question B had phoned him to ask where the complainant was. He knew of Mr Aldahoudi’s address because the children had pointed it out to him some days before as a place where they had been with her. He went to the block of flats, pressed the intercom buzzer and identified himself to the complainant. She came to the main door of the block. He denied that he had a knife, or that he threatened her or pushed her. According to him, she suggested that they talk away from the entrance to the flats and it was for that reason they went to the car. They drove off, and she selected the pool as the place to stop and talk.

21 He told her that B was worried about her, and wanted to know where she was and whether she was coming home. They discussed their relationship. He did perform cunnilingus and had intercourse with her in the back seat, but that was consensual and, indeed, initiated by her. She was wearing only what he described as “a brunch coat”.

22 She then suggested that they go to his home so that she could see the children of the marriage. They had coffee when they arrived there, she got into bed and, after removing their daughter, he got in with her. They had vaginal intercourse, again with her consent. The vibrator was used at her request, after he had replaced the batteries in it.

23 In cross-examination, the appellant maintained his account of his reason for going to Mr Aldahoudi’s flat and denied that his purpose was to remove the complainant from the premises by force. He acknowledged that, although he was concerned about B, he did not contact him to tell him that the complainant was with him. He did not drive to the flat at Woodpark where B was, even though it was only a short detour on the way to his home in Greystanes, nor did he suggest to the complainant that she phone B after they arrived at his home. According to him, the complainant said that she would ring B in the morning and he did not see the matter as his concern any longer.

24 This brief sketch of the appellant’s evidence is enough to show that the jury may well have viewed it with considerable scepticism. Two further witnesses were called in the defence case but, for present purposes, it is not necessary to summarise their evidence.

The appeal

25 Two grounds of appeal were argued. The first was that the verdict of guilty on the first count cannot stand as it is inconsistent with the verdicts of not guilty on the other three counts. The submission was based upon the proposition that each count depended entirely upon the evidence of the complainant. That being so, it was said, the verdicts of not guilty must mean that the jury were not satisfied of her credibility generally. It was argued that her evidence touching upon the four counts was linked in such a way that it was not reasonably open to the jury to accept one part of it and reject the rest.

26 Reliance was placed upon the principles enunciated in R v Markuleski (2001) 52 NSWLR 82 and, in particular, upon the examination by Spigelman CJ and Wood CJ at CL of the decision of the High Court in Jones v The Queen (1997) 191 CLR 439 and other cases dealing with this area. A useful list of factors to be considered in determining whether a verdict should be set aside upon this basis is to be found in the judgment of Wood CJ at CL in Markuleski at paras 234-5. However, his Honour observed (at para 236) that there need not “inevitably be a search for an explanation for a difference in verdicts”, and he added (at para 238) that the ultimate question is whether, as a matter of “logic and reasonableness”, that difference is such that the verdict of guilty should be set aside as unreasonable: Mackenzie v The Queen (1996) 190 CLR 348 at 366. In considering that question, his Honour also observed (at para 237):

“There will be cases where, once the entirety of the case is reviewed, the appellate court will maintain a comfortable satisfaction as to the verdicts of guilty in relation to the relevant counts, upon the basis of the evidence separately considered concerning them.”

27 At first sight, it does seem odd that the jury would find the appellant guilty of the charge of detaining for advantage but not guilty of all the charges of sexual assault. I do not consider that the verdicts are explicable on the basis that the jury saw a finding of guilt on the first count as sufficient to reflect the appellant’s overall criminality: cf R v Kirkman (1987) 44 SASR 591 per King CJ at 593; Markuleski per Spigelman CJ at paras 75-7 and Wood CJ at CL at paras 228-230. However, it appears to me that there is a logical and reasonable basis upon which the jury may have distinguished between the evidence bearing on the first count and that relating to the others.

28 The jury must have accepted that the appellant abducted the complainant at knifepoint. I would be surprised if they did not also accept that she did not consent to each of the three sexual acts. The trial judge gave the jury the conventional direction that submission through fear does not amount to consent. However, it is possible that they were not satisfied to the requisite degree that the appellant knew that she was not consenting, given the background of their marital relationship and his emotional state at the time. (I say this even though his Honour also directed the jury about recklessness as to consent.) The effect of her evidence was that she submitted to the sexual acts in the car, without expressing her resistance either physically or verbally. I have referred to her evidence (paras 9 and 11 of these reasons) that on two occasions she had him roll her a cigarette and was attempting to calm him down. Of even more significance is her evidence, summarised at paras 12 to 14 of these reasons, about the circumstances in which sexual intercourse took place at his home.

29 On the other hand, there was independent evidence strongly comfirmatory of the complainant’s account that the appellant had escorted her forcibly from Mr Aldahoudi’s flat. That is to be found in Constable Nichols’ evidence (summarised at paras 16 and 17) and, more importantly, Mr Aldahoudi’s evidence (summarised at para 15) about the condition of his flat when he returned to it. It is most improbable that the complainant would have accompanied the appellant voluntarily, clad as she was and leaving the door of the flat open, the lights on and her clothes and other personal effects where Mr Aldahoudi saw them.

30 This is a case where, to adopt the words of Wood CJ at CL in Markuleski quoted in para 25 above, I would maintain a comfortable satisfaction about the verdict of guilty of the first count on the basis of the evidence, separately considered, concerning it. This ground is not made out.

31 The second ground of appeal is that the trial judge failed to direct the jury that, if they had a reasonable doubt about the complainant’s evidence on one or more of the counts, they should take that into account in assessing her credibility generally. His Honour did not give that direction. Again, reliance was placed upon Markuleski and, in particular, upon the following passage in the judgment of the Chief Justice (at paras 185-6, 188-191):

“It may appear to be obvious that a reasonable doubt about one aspect of a complainant’s evidence ought to be taken into account when assessing that witness’s evidence on other matters. However, there have been a significant number of cases in which courts of criminal appeal have acted on the basis that the jury may have failed to do so.

In the light of the number of cases it is desirable that the traditional direction as to treating each count separately is supplemented in a word against word case. Some reference ought to be made to the effect upon the assessment of the credibility of a complainant if the jury finds itself unable to accept the complainant’s evidence with respect to any count.
…

It is not necessary to specify any precise words for such a direction. That will depend on the circumstances of the case. It will often be appropriate to direct a jury that where they entertain a reasonable doubt concerning the truthfulness or reliability of a complainant’s evidence in relation to one or more counts, that must be taken into account in assessing the truthfulness or reliability of the complainant’s evidence generally.
On other occasions it may be appropriate for a judge to indicate to the jury, whilst making it clear that it remains a matter for the jury, that it might think that there was nothing to distinguish the evidence of the complainant on one count from his or her evidence on another count.
Or it may be appropriate to indicate that, if the jury has a reasonable doubt about the complainant’s credibility in relation to one count, it might believe it difficult to see how the evidence of the complainant could be accepted in relation to other counts.
The precise terminology must remain a matter for the trial judge in all the particular circumstances of the specific case. The crucial matter is to indicate to the jury that any doubt they may form with respect to one aspect of the complainant’s evidence, ought be considered by them when assessing the overall credibility of the complainant and, therefore, when deciding whether or not there was a reasonable doubt about the complainant’s evidence with respect to other counts.”

32 No such direction was sought by counsel for the appellant at the trial (who did not argue the appeal), but the trial was conducted prior to the decision in Markuleski and it is appropriate that the merit of this ground be considered.

33 In Markuleski Spigelman CJ noted (at para 187) that, while such a direction should generally be given in the type of case to which he was referring, its absence “is not necessarily fatal …”. The present case is not a “word against word” case, at least as far as the evidence bearing upon the first count is concerned. In dealing with the first ground of appeal, I have referred to evidence tending to support the complainant’s testimony about that count. In any event, an examination of the directions which his Honour did give leads me to the conclusion that the jury would well have understood that any doubt they had about any aspect of the complainant’s evidence might lead them to question her credibility generally.

34 At the outset of the trial his Honour gave the jury a conventional direction about separate consideration of each of the four counts as follows:

“The charges are being tried together as a matter of convenience. However, you will in due course be required to return a separate verdict in relation to each of them. It may not follow that because he is guilty or not guilty of one of those charges he is guilty or not guilty of the others. You will need to consider each charge separately.”

He reminded the jury of that direction at the beginning of the summing up.

35 His Honour gave the usual directions about assessing the reliability of witnesses, both as to honesty and accuracy, including the fact that the jury might accept some parts of the witness’s evidence but reject others. More importantly, he gave a firm direction about scrutiny of the complainant’s evidence, which included the following:

“You should therefore scrutinise her evidence with care before you decide that a verdict of guilty on any of the charges should be brought in. You should only find the accused guilty if you are satisfied beyond reasonable doubt of the truth of her evidence and that you can safely act upon it.”

36 On two occasions his Honour added that the jury’s assessment of the reliability of the complainant’s evidence should be made in the light of the whole of the evidence in the case. On the second of those occasions he put it this way:

“The issue is whether the evidence of the complainant, having regard to the whole of the evidence, including the evidence of the accused, is accepted beyond reasonable doubt as being true.”

37 One would expect that a jury which was not satisfied of the honesty of a witness’s evidence in one respect would examine the rest of that witness’s evidence with a critical eye. So much is acknowledged by the opening words of the passage from the judgment of the Chief Justice in Markuleski which I have quoted. The question in a case such as this is whether a trial judge’s directions about the need for a separate consideration of counts, and the fact that a witness’s evidence might be accepted in part only, might lead a jury to believe that they were not entitled to engage in that ordinary process of reasoning. It does not appear to me that the directions in the present case to which I have referred, considered as a whole, would be likely to have had that effect. This is so particularly in the light of the clear directions about the need to be satisfied of the truthfulness of the complainant’s evidence.

38 In all the circumstances, I am not satisfied that the absence of a direction of the kind discussed in Markuleski caused this trial to miscarry. This ground also is not made out.

39 I would dismiss the appeal.

40 ADAMS J: I also agree with Hidden J.

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