Shaw v The State of Western Australia
[2007] WASCA 201
•27 SEPTEMBER 2007
SHAW -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 201
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASCA 201 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:80/2006 | 5 SEPTEMBER 2007 | |
| Coram: | WHEELER JA BUSS JA MURRAY AJA | 27/09/07 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed in part Conviction of attempted sexual penetration set aside Judgment of acquittal entered Appeal otherwise dismissed | ||
| B | |||
| PDF Version |
| Parties: | CYRIL JOHN SHAW THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law and procedure Whether jury's verdict unreasonable Inconsistency of verdicts Turns on own facts |
Legislation: | Nil |
Case References: | Bruce v State of Western Australia [2006] WASCA 236 MFA v The Queen (2002) 213 CLR 606, [2002] HCA 53 Riley v The State of Western Australia [2007] WASCA 22 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : SHAW -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 201 CORAM : WHEELER JA
- BUSS JA
MURRAY AJA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : MARTINO DCJ
Citation : SHAW -v- THE STATE OF WESTERN AUSTRALIA
File No : BRO 37 of 2005
(Page 2)
Catchwords:
Criminal law and procedure - Whether jury's verdict unreasonable - Inconsistency of verdicts - Turns on own facts
Legislation:
Nil
Result:
Appeal allowed in part
Conviction of attempted sexual penetration set aside
Judgment of acquittal entered
Appeal otherwise dismissed
Category: B
Representation:
Counsel:
Appellant : Mr M D Cuomo
Respondent : Mr J A Scholz
Solicitors:
Appellant : Chris Biris
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Bruce v State of Western Australia [2006] WASCA 236
MFA v The Queen (2002) 213 CLR 606, [2002] HCA 53
Riley v The State of Western Australia [2007] WASCA 22
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1 JUDGMENT OF THE COURT: The appellant was presented in the District Court at Broome for trial on an indictment containing five charges. The counts were as follows:
1. Between 14 and 26 October 2004 the appellant sexually penetrated the male complainant without his consent by inserting his penis into the complainant's anus.
2. A count expressed in the same terms as count 1.
3. A further count expressed in the same terms as count 1.
4. On 9 December 2004, at Broome, the appellant again sexually penetrated the male complainant without his consent by inserting his penis into his anus.
5. At the same time, the appellant attempted to insert his penis into the complainant's anus without consent.
2 The appellant and complainant were known to each other. They had both lived at the Beagle Bay community as young people. The appellant was much older than the complainant. The offences were alleged to have occurred at times when the two men were both inmates of the Broome Regional Prison. The complainant was lodged there initially on 14 October 2004. The appellant was already a prisoner there. It was alleged that the first three offences occurred on 14, 15 and 16 October, but the complainant then made no complaint of these alleged occurrences. The evidence was that he was then transferred from the Broome prison to Roebourne Regional Prison on 19 October 2004.
3 He remained in custody there for a time and, for reasons which are not presently material, he was ultimately transferred back to Broome prison on 9 December 2004. Again he was lodged in a cell occupied by the appellant and others. It was shortly after that, on 9 December 2004, that he alleged that the offences which were the fourth and fifth counts on the indictment were committed. He complained to a senior prison officer, a Ms Secker, on 10 December 2004. He was examined by a local medical practitioner, Dr Atkinson.
4 The trial was very short. It was held on 23 and 24 May 2006 before a District Court judge and a jury. The complainant gave evidence, as did Ms Secker, and a report of Dr Atkinson, dated 19 May 2006, was read into evidence by consent. The doctor said his examination revealed no evidence of injury. That being the case, the doctor was not able to offer an opinion as to whether or not the event of which the complainant complained to him, an act of anal penetration, had actually occurred. If it
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- did occur, the report said, the complainant, 'would have expected to suffer from a degree of physical discomfort, as well as mental stress'.
5 Ms Secker gave evidence by videolink from Victoria that at about 7 am on 10 December 2004, shortly after she had come on duty, she was asked to go to the cell occupied by the complainant. There were three men in the cell, including the complainant and the appellant. They were all asleep. She removed the complainant from the cell. Her intention was to locate him in another cell. She said that the complainant was very 'down' and withdrawn. That prompted her to ask him whether anything had happened during the night. He replied, 'The same thing that happened last time.' She did not question him further, but asked him if he wanted the police called and if he wanted to see the nurse. He said that was what he wanted.
6 The complainant gave evidence and the appellant gave evidence in his own defence. The evidence concluded in the day. Early in the afternoon of the following day the jury returned their verdicts. They acquitted the appellant of the first three counts on the indictment and convicted him of counts 4 and 5. The appeal is now made by leave against those convictions.
7 Before discussing the merits of the appeal, it is convenient to note that the respondent conceded the ground of appeal that there was no evidence to support the conviction on count 5, the attempted anal intercourse. We accepted that concession. The appellant's conviction of that count should be quashed and a judgment of acquittal of that offence entered.
8 There is no appeal against sentence. In relation to count 4, the appellant was sentenced to 3 years and 4 months imprisonment, and for count 5 he was sentenced to 8 months imprisonment. That term was imposed concurrently. In the event that the appeal was otherwise unsuccessful, there would therefore be no cause to vary the sentence imposed in respect of count 4 pursuant to s 30(6) of the Criminal Appeals Act 2004 (WA).
9 The first ground of appeal raises a question of inconsistency of verdicts as between the acquittals of counts 1 - 3 and the conviction of count 4. It is in the following terms:
1. The verdicts of the Jury, were unsafe and unsatisfactory, the not guilty verdicts returned in respect of the first three counts on the
- indictment being inconsistent with the guilty verdicts returned in respect of the same complainant.
a) The credibility of the complainant was the central issue at the trial.
b) There was no independent evidence corroborating the testimony of the complainant.
c) Unless the jury was satisfied beyond reasonable doubt of the truth of all of the complainant's evidence, there could be no conviction on any count in the indictment relating to that complainant.
d) The verdicts of not guilty on counts 1, 2 and 3, indicate that the jury were not satisfied of the truth of testimony of the complainant on those counts.
e) There being no additional factor which would have permitted the jury to reach different verdicts on the counts which resulted in convictions, the verdicts of guilty were accordingly unsafe and should be set aside.
10 There is no complaint of any misdirection by the trial judge. His Honour gave the jury the standard direction that there were five counts on the indictment, each of which charged the commission of a separate offence and each of which was to be considered separately from the others so that the verdicts need not all be verdicts of guilty or all verdicts of not guilty, but they could convict of some charges and acquit of others. As to the evidence of the witnesses, the judge told the jury that they need not accept or reject the evidence of a witness in its entirety, but they could accept part of the evidence of a witness and reject other parts, having regard to the fact that they might find a piece of evidence was supported by other evidence accepted by them, or contradicted by other such evidence.
11 As to the role of an appellate court in a case where what is alleged is that a guilty verdict should be set aside on the ground of its inconsistency with an acquittal, it is convenient and sufficient in this case to refer to the decision of the High Court in MFA v The Queen (2002) 213 CLR 606, [2002] HCA 53, which was also a case of sexual offences allegedly committed by the appellant upon a complainant on separate occasions. Again, as in this case, the jury convicted of offences committed on one occasion and acquitted the appellant on counts relating to other occasions.
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12 Speaking of s 6(1) of the Criminal Appeal Act 1912 (NSW), the court pointed out that the question in relation to the challenged verdicts was whether they were unreasonable. It was not whether they were legally or factually inconsistent with verdicts of acquittal. The same has been said of s 30(3)(a) of the Criminal Appeals Act2004 (WA) upon which the ground under discussion depends. That subsection provides that the Court of Appeal must allow the appeal if, in its opinion:
(a) the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported;
13 The approach to be taken by the court in a case where it is alleged that a verdict cannot be supported having regard to the evidence was usefully discussed in Bruce v State of Western Australia [2006] WASCA 236. Generally, as to the statutory provision, the relevant High Court decisions are collected and discussed by Buss JA (Wheeler and McLure JJA agreeing) in Riley v The State of Western Australia [2007] WASCA 22 at [16] - [24].
14 In relation to a case such as this, in MFA at [34] Gleeson CJ, Hayne and Callinan JJ said:
Since the ultimate question concerns the reasonableness of the jury's decision, the significance of verdicts of not guilty on some counts in an indictment must necessarily be considered in the light of the facts and circumstances of the particular case. Furthermore, it must be considered in the context of the system within which juries function, and of their role in that system. A number of features of that context were emphasised in MacKenzie. They include the following. First, as in the present case, where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count. This will often be accompanied by a specific instruction that the evidence of a witness may be accepted in whole or in part. Secondly, emphasis will invariably be placed upon the onus of proof borne by the prosecution. In jurisdictions where unanimity is required, such as New South Wales, every juror must be satisfied beyond reasonable doubt of every element in the offence. In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. This may not be unreasonable. It does not necessarily involve a rejection of the complainant's evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily
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- imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility.
15 As we understand it then, the question posed by the statute is whether the appellate court considers, after reviewing the whole of the evidence, that the verdict is unreasonable, bearing in mind that the question whether guilt was established beyond reasonable doubt was one for the jury who had the advantage of direct participation in the trial. The appellate court will find the statutory test to be satisfied so as to require the conviction to be set aside if it considers that it was not open to the jury, acting reasonably, to be satisfied of guilt beyond reasonable doubt.
16 In our opinion, that cannot be said in this case. The acts of sexual penetration having been admitted in respect of counts 1, 2, 3 and 4, the crucial question was whether the jury could be satisfied beyond reasonable doubt that the complainant did not consent, and if he did not, that the appellant could not have honestly and reasonably, but mistakenly, believed that the complainant did consent. The complainant's evidence was that he did not consent, but was asleep when the anal intercourse commenced on each occasion. On the other hand, the evidence of the appellant, consistently with the statements made when he was interviewed by the police (in relation to count 4, on 10 December 2004) was that the complainant was awake.
17 So far as the incident concerning count 4 is concerned, the appellant conceded in his evidence that the complainant did not give any sign of active participation or consent. He did not move or speak. The appellant conceded that he did not speak to the complainant about having sex with him. He said he did not have to ask because of the history between them. He said he knew what the complainant was like and that he would be a willing participant. In contrast to that evidence, the appellant said that before the first three acts occurred, upon meeting the complainant in prison, he had discussed having sex with him and the complainant said that he had missed having sex with the appellant. According to the appellant, the complainant said on the morning after the first three acts that he had 'enjoyed it'.
18 Further, in relation to count 4, there was the evidence of Ms Secker about the conversation she had with the complainant early the following morning, and in particular there was Ms Secker's evidence of the complainant's demeanour being, 'very down, very depressed'. Her evidence, it was rightly accepted at trial was evidence of behaviour on the part of the complainant which was consistent with the allegation of
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- non-consensual anal penetration. The proven circumstances would then amply negate the defence of honest and reasonable, but mistaken, belief as to consent.
19 So there were differences in the evidence available in respect of count 4 from that available in respect of counts 1 - 3. The evidence in relation to count 4 was directly that of the complainant that there was non-consensual penetration. That was his evidence with respect to each count, but in relation to count 4 the appellant conceded that there had been no discussion between the two men before the incident occurred, and conceded that the complainant had not moved or shown any indication of active participation or consent when the incident occurred.
20 Further, in relation to that count, there was evidence of consistent behaviour by the complainant if what he said and how he appeared to Ms Secker on the following morning was regarded as relating to what had occurred between him and the appellant in the cell during the previous night. In our opinion, having regard to these matters, the verdict of guilty of count 4 cannot be said to be unreasonable in the relevant sense.
21 This, it seems to us, may well have been a case where, although willing to accept that the complainant was endeavouring to tell the truth, the jury may not have been prepared to act upon his evidence without the support offered to it by the aspects of the appellant's evidence to which we have referred and by the evidence of consistent conduct on the morning after the commission of the offence which was count 4.
22 There is a second ground of appeal. So far as it remains necessary to consider it, it complains that the conviction on count 4 was unsafe and unsatisfactory as it was inherently improbable that the complainant could have slept through the act complained of. In support of the ground, the appellant refers to the opinion offered in the report of Dr Atkinson which we have mentioned. The doctor said that he would have expected the complainant to suffer 'a degree of physical discomfort, as well as mental stress'.
23 The complainant's evidence was that he slept through each event. He said that initially when it happened in October he woke on the following morning with his clothing disarrayed, pain in his bottom and a sore back. He felt 'hurt inside', but he was 'too scared to tell anyone because they would laugh or say something, you know, and make fun of me'. He felt the same on each occasion when it happened. When he was returned to the prison in December and found himself again lodged in the cell
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- occupied by the appellant, the complainant said that he wanted to ask a warden to move him, but there was no opportunity. He went to sleep that night and again, as before, awoke to find that his clothing had been interfered with and his bottom was sore.
24 For the appellant it is argued that on the occasion to which count 4 relates, it is simply not believable that if the complainant feared a further sexual assault by the appellant, he did not take steps to ensure that he was not lodged in the same cell, and that having been lodged there he went to sleep and again remained asleep during an act of sexual penetration of his anus which caused him pain when he awoke in the morning.
25 That the act of penetration would cause pain and be stressful was what Dr Atkinson had supposed would be the case. But it should be remembered that Dr Atkinson's report said that the complainant alleged that he was awakened by the act of anal intercourse and he was then aware that he had been penetrated. That was not the complainant's evidence and Dr Atkinson did not give an opinion (nor could he have been asked to do so) as to the likelihood of a person who had been anally penetrated on prior occasions remaining asleep while such an act was performed.
26 This Court is quite unable to conclude that the jury, acting reasonably, must have had a reasonable doubt that the act of penetration occurred as described by the complainant. Having regard to the evidence in its entirety, we are unable to conclude that it was not open to the jury to be satisfied of the appellant's guilt of count 4 beyond reasonable doubt. The appeal is dismissed, except to the extent required to set aside the conviction of count 5 and the sentence imposed for that offence.
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