Skipworth v R

[2006] NSWCCA 37

CITATION:	SKIPWORTH v REGINA [2006] NSWCCA 37 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	16 December 2005
JUDGMENT DATE:	1 March 2006
JUDGMENT OF:	Mason P at 1; Barr J at 60; Hall J at 61
DECISION:	Appeal against conviction dismissed. Appeal as to sentence dismissed.
CATCHWORDS:	EVIDENCE – sexual assault – complaint evidence – delay in making – justifiability of – where complainant’s mother and offender in business relationship – where complainant and mother boarding in offender’s home - EVIDENCE – sexual assault – complaint evidence – delay in making – complainant told mother 66 days after event – whether “fresh in the memory” under s 66 Evidence Act 1995 - EVIDENCE – sexual assault – complaint evidence – where “vague” or lacking clear element of complaint – probative value not outweighed by prejudice where evidence has corroborative value - DIRECTIONS TO JURY – introductory directions as to respective roles of the Crown, defence and jury – whether stressed too significant an association between the Crown and the community – whether stressed too significant an association between jury and the community – whether amounted to saying that the Crown and jury “on the same side” – whether distinguished the Crown’s approach to the evidence as scrupulously fair as against the defence (D)
PARTIES:	Bruce Robert SKIPWORTH v REGINA
FILE NUMBER(S):	CCA 2005/1505
COUNSEL:	Appellant: P Byrne SC/ G Bashir Crown: G Rowling
SOLICITORS:	Appellant: C Bilinsky, Horowitz & Billinsky Crown: S Kavanagh (Solicitor for Public Prosecutions)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	03/41/129
LOWER COURT JUDICIAL OFFICER:	Freeman DCJ
LOWER COURT DATE OF DECISION:	16/12/2005

CCA 2005/1505 CCAP

MASON P
BARR J
HALL J

Wednesday 1 March 2006

Bruce Robert SKIPWORTH v REGINA

Judgment

1 MASON P: The appellant stood trial in the District Court on an indictment containing 10 counts, namely:

Bruce Robert SKIPWORTH
1. On or about the 13th day of December 2002, at Colo Vale, in the State of New South Wales, did assault the complainant and that he Bruce Robert SKIPWORTH at the time of such assault did commit an act of indecency on the complainant .
2. On or about the 13th day of December 2002, at Colo Vale, in the State of New South Wales, did assault the complainant and that he Bruce Robert SKIPWORTH at the time of such assault did commit an act of indecency on the complainant .
3. On or about the 13th day of December 2002, at Colo Vale, in the State of New South Wales, did have sexual intercourse with the complainant without the consent of the complainant knowing she was not consenting.
4. On or about the 13th day of December 2002, at Colo Vale, in the State of New South Wales, did have sexual intercourse with the complainant without the consent of the complainant knowing she was not consenting.
5. On or about the 13th day of December 2002, at Colo Vale, in the State of New South Wales, did have sexual intercourse with the complainant without the consent of the complainant knowing she was not consenting.
6. On or about the 13th day of December 2002, at Colo Vale, in the State of New South Wales, did commit an act of indecency, towards the complainant a person of or above the age of 16 years, namely, 20 years.
7. On or about the 13th day of December 2002, at Colo Vale, in the State of New South Wales, did have sexual intercourse with the complainant without the consent of the complainant knowing she was not consenting.
8. On or about the 13th day of December 2002, at Colo Vale, in the State of New South Wales, did commit an act of indecency, towards the complainant a person of or above the age of 16 years, namely, 20 years.
9. Between 14th day of December 2002, and the 20th day of December 2002, at Colo Vale, in the State of New South Wales, did assault the complainant and that he Bruce Robert SKIPWORTH at the time of the assault did commit an act of indecency on the complainant .
10. On or about the 22nd day of December 2002, at Colo Vale, in the State of New South Wales, did have sexual intercourse with the complainant without the consent of the complainant knowing she was not consenting.

2 The appellant entered pleas of not guilty to each count. The jury returned verdicts of not guilty on counts 1, 2, 3, 4, 8, 9 and 10 and verdicts of guilty on counts 5, 6 and 7.

3 The background was described in the following terms in the remarks on sentence:

The offender employed the complainant’s mother as a manager in connection with at least two and a projected third store which he operated in the Southern Highlands and the South Coast. The complainant and her mother were required to vacate their house in Mittagong or Bowral because of some construction work being done on that house. They took temporary accommodation in a cabin in a caravan park. The offender offered accommodation in his home at Colo Vale in which he then was living alone. The complainant’s mother was grateful for this offer and took it up because she was not only an employee but a friend and indeed an admirer of the offender.
Her daughter, the complainant, was also grateful for the provision of this quite handsome accommodation. There developed over the time the two women were staying in the house a pattern of three persons living in the house dining together and imbibing considerable quantities of alcohol. From time to time the complainant’s mother was required in the course of her employment to spend the night down at Kiama. It was arranged, a request, apparently of the offender, that she would spend the night of 13 and 14 December down at that place, although it seems she had more than one reason for being there, at least on some occasions, but certainly her accommodation in Kiama was being paid for by the offender.
The complainant had at least provisionally invited a young male friend of hers, Mr de Rouw, to come to dinner with her and the offender on the night of 13 December. Mr de Rouw ultimately declined that invitation because despite knowing of Mr de Rouw’s distaste, and perhaps even allergic reaction to seafood, the offender provided nothing but seafood, thus effectively preventing Mr de Rouw’s attendance.
The offender also revealed to his former wife in a conversation after the event that he had on this evening taken Viagra. The Crown suggests that those two strands of evidence indicate that there was a plan on the part of the offender involving sexual contact with the complainant.
Ms McSpeddon suggests that, as I understand it, whilst he may have contemplated some seduction that is a long way short of planning a crime, that is, taking the young woman by force. I think there is probably substance in that submission but I find that the events, at least as to their commencement on this night of 13 December, were the subject of some premeditation on the part of the offender. The complainant and the offender dined late and somewhat bibulously. There was a deal of dispute how much alcohol was drunk by whom, but it appears there was a considerable quantity and the complainant certainly did drink some quantity herself.
The offender on retiring to his bedroom said to the complainant, “Turn off the candles”, it having been a candlelit dinner, and, “Come and give me a hug before you go to bed”. This was in accordance with the practice which the offender had developed and encouraged whereby both the women living with him entered his bedroom last thing at night and gave him a kiss or cuddle before retiring to their respective bedrooms.
In accordance with the offender’s request, the complainant entered his bedroom. The light in the bedroom was out. There was ambient light from elsewhere in the house. Very briefly, she said that when she bent to kiss the offender he took hold of her and pulled her down onto the bed.

4 A convenient and undisputed summary of the Crown case on each count is found in the closing address of the Crown Prosecutor (Tr pp205-7):

He had one hand on her back and his right hand moved towards her buttocks. He tried to kiss her but she pulled back. She said he rolled her over so that she was flat on her back and he held her down with his hands on her chest. He was on top of her trying to pull her pants down. He was holding her with his left hand and pulling her pants down with his right hand. He pulled her pants down to her ankles and her underpants went with those pants.
She then went back to the first movement and said that he put his hand underneath her underpants and, as she described it, onto her bum. She said initially when he pulled her over she was on her side, she was facing him, his hand went under her pants onto her bottom and his hand was rubbing up and down. Now that’s the evidence that the Crown relies upon in relation to count 1.
Then she said she turned over onto her back and that is when he pulled her pants down to her ankles. She said to him, “You should not be doing this, you are my mum’s boss”. He said, “Relax, your mum’s not here” and he said he would make her feel very good. She then said he used his knee to separate her legs and he put fingers into her vagina. This is the evidence for count 3 on the indictment. That is the first allegation of digital penetration. She said he moved his fingers back and forth in her vagina and she felt a lot of pain. She was then asked did he do anything with her top and she said he took her top off and put her bra up onto her chest exposing her breast. She said that he had said to her, “I have been staring at your tits all day”. She described him moulding and kneeding her breast and this is the evidence for count 2 on the indictment. As for her vagina, she said she was not moist and she said it felt like his fingers were going against the grain as she described it. She felt pain.
After this she said she remembered his fingers digging into her hips and his head moved down between her legs. He started rubbing his tongue around her vagina and clitoris and he got faster and faster and more rough, and he bit her clitoris a couple of times. This is evidence the Crown relies upon in relation to count 4. She said to him, “You shouldn’t be doing this, it is wrong”. He said “Relax” and then he said he was going to make her come like she never had before. He would make her have multiple orgasms like she never had before and make her feel good. She said she asked him to stop because it was hurting her. She went to leave. He was sitting up and he grabbed the back of her head and pulled it towards his groin. She said she did not want to do that, he released his grip on her head, grabbed hold of her left hand and pulled it towards him. She said, “I don’t want to do that either”, is what she has described she said to him. She was kneeling curled up in a ball with the head against the bed head or her back against the bed head I think she said. He came over on top of her and he used his fingers for a second time. He put his fingers into her vagina moving them around very forcefully. This went on for a minute or so and again it was more than one finger she described. This is the evidence that the Crown relies upon to satisfy you beyond reasonable doubt of count 6. I beg your pardon, that should be count 5.
After that she described him leaning back on one arm and with his free hand he was moving his hand up and down the shaft of his penis in a very brisk and quick action. That’s the evidence for count 6 I’m sorry.
He then came over and got on top of her and it took a little bit of time to force his penis into her vagina. She said she was very dry down there and it was sore and hurting and he made three or four movements back and fourth and she pushed him off. That’s the evidence for count 7.
After that he masturbated again. She collected her clothes and was on the way out of the bedroom, he said “Shit”, held his hand out in an open palm with his fingers extended and that’s the evidence that the Crown relies upon in relation to count 8.
She said that she repeated, “You should not be doing these things”. She said it was not right. She told him it was hurting her on more than one occasion. The Crown relies on these statements and her actions to satisfy you that she was not consenting and also to satisfy you that he knew she was not consenting to what he was doing, despite her protestations he kept going. She got her clothes, left the room, went to her bedroom. She was sore. She was nauseous, she described flashbacks where she recalled what he had done to her. She went to the bathroom and she was physically ill.
The next day she examined herself for bruises but found none. She examined her genitals and found them to be sore and swollen. She said she was still in pain in the morning. She laid in bed longer than normal and when she got up he was still there. He said to her, “I am really sorry, what I did was wrong”. She asked what was going to happen to her mother and he said, “I won’t tell her if you won’t” and he then left and she went back to bed. She said things were very awkward after that at the accused’s home. She said she tried to avoid him and that her mother noticed changes and asked her why she was being so lazy and disrespectful. When she was asked by she did not tell her mother she said they had nowhere else to go. Her mother worked for the man after all and he was her mother’s source of income. She said she did not know how to tell her and that they where there as his guests.
She said the following day she spoke to her friend Chris. That’s the day after these events. And you remember Chris had given evidence yesterday about he asked her “How was dinner last night?”. So it’s the very next day that they have a conversation and he tells you and she has said that she told him that Bruce tried to kiss her and he had touched her, and touched her breast. She didn’t tell him anything about the penetration or the oral sex.
A few days later, four it is to the best of her recollection I think, Lesley Little came over and whilst they were outside the accused asked the complainant to get a bottle of wine. Whilst she was doing that the accused came up behind her and slipped his hand down the back of her pants and began to rub her bum as she called it. This is the evidence for count 9. She said she turned and said, “My mum’s outside you bastard”.
The next incident occurred about a week before Christmas according to the complainant. The accused had gone to bed and called for her and her mother to come in and give him a goodnight kiss. They went in and her mother was seated on the edge of the bed and as the complainant leant over to give him a kiss on the cheek he pulled her over. He very quickly put his hand down again, from the back, under her pants and underpants and put a finger or two into her vagina. She pulled away and left the room and that is the evidence the Crown relies upon for count 10.


Complaint evidence and directions

5 It is convenient first to deal with grounds three and four of the notice of appeal. These state that:

Ground Three
The evidence of complaints said to have been made to:
i. The mother of the complainant, and
ii. The complainant’s friend Mr de Rouw;
should not have been admitted.
Ground Four
The directions given to the jury on the manner in which they could use the complaint evidence were inadequate.

6 The complainant had given evidence that she told Mr de Rouw "Bruce made a pass at me last night. He tried to kiss me. I won't tell you the full details cause it would make you feel sick." Mr de Rouw said that she should tell her Mum and she said that she would, adding "I will, but I will wait 'til he's not home- not her boss anymore". This evidence was led without objection, except for an objection as to form.

7 Mr de Rouw gave evidence that he was a close friend of the complainant. He was invited to dinner on the night of 13 December 2002 but did not attend because he did not eat seafood. The next day he spoke with the complainant over the phone. She told him, “Bruce kissed me last night” and that it wasn’t a mutual thing between them and she didn’t agree with what had taken place. She said, “Bruce touched me” and Mr De Rouw responded, “That’s gross”. He asked her “What are you going to say to your mum?” to which she responded “I’m not going to tell her anything about what happened”. When he asked why not she said, “I couldn’t tell her anything about that”. Again, this evidence was led without any objection other than one requiring the witness to give evidence in the proper form.

8 The complainant also gave evidence, without objection, as to what she told her mother about the assault on the occasion that the mother had been away in Kiama (Tr p45ff).

9 The complainant's mother gave evidence as to complaint, stating that she and her daughter returned to their home around 6 Jan 2003. Her daughter moved to Sydney shortly after. The mother was in Sydney around 17-18 February and mother and daughter spent the day together. Later that day, after the couple had had a couple of drinks, the complainant told her "Bruce sexually assaulted me. …. I was to[o] scared to tell you because you would lose your job and you had no place to go”. The conversation lasted between 40 minutes and an hour. Each woman was crying.

10 The evidence about complaint to the mother was also led without objection. The complainant’s version in chief was disjointed and interrupted by objections and the complainant’s obvious emotional turmoil. At one stage the complainant gave the following evidence about her conversation with her mother (Tr p50):

I said that he had sexually assaulted me, that he penetrated me and that he had given like oral sex and also used his fingers. That was pretty much the words I used because I didn’t elaborate. I didn’t want to.

11 The mother’s version was (Tr 94):

HIS HONOUR: Q. Let me explain it to you again. What we’re asking you to do is tell us the words that [the complainant] used?
A: That “He went down on me”.
CROWN PROSECUTOR: Q. Okay. “He went down on me.” Anything else as best you can recall?
A. And I remember saying, “What, between your legs?” and she said, “Yeah mum, he went down on me.” That part I do remember very clearly because she repeated it twice.
Q. That’s what we’re asking for. Now is there anything else said by her?
A. The other bit where ---
Q. What’s the other bit. Tell us the words that she used?
A. That Bruce made her, pushed her down on him and she couldn’t do it and he ---
Q. No, well she’d say “I couldn’t do it” wouldn’t she?
A. Yes.
Q. Try and keep that in mind, please?
A. She said “I couldn’t do it mum, I kept saying “No”. And he kept saying, “Just relax, your mother’s not here.” There was another bit she mentioned that he wanted her to touch --
OBJECTION
CROWN PROSECUTOR: You’re doing it again, you’re drifting off into summarising.
WITNESS: Sorry.
CROWN PROSECUTOR: I know it’s the natural thing to do.
WITNESS: I’m sorry. Yes, it’s very, very hard for me to say this.
CROWN PROSECUTOR: Q. That’s okay, just take your time, we’re not in any rush. Try and keep in mind that you’re going to use the words that [the complainant] actually used to the best of your recollection?
A. Well I can’t say too much more then because I cannot remember a great deal. I did fade out a bit listening and I was crying a lot. She then was crying and it was over a long period of time. Little bits were coming out.
Q. Over what period of time?

A. I think it would have been at least two hours, maybe three hours.
Q. Was anything said by [the complainant] about orgasms?
A. Yes.
Q. Can you recall what she said to your about that?
A. “Just relax, I’ll give you multiple orgasms without penetrating you.” Something to that effect.
Q. Did she say anything to you about wanked off?
A. Yes, that’s something else I do remember.
Q. Tell us what was said about that?
A. I can’t remember the leading up to that conversation --
Q. Can you remember any part of it?
A. --- something about “He wanted me to put my hand on his penis. I couldn’t do it.” Something to that effect and then “He wanked off beside me.” But word for word it is two, over two years. It is very hard to remember.

12 The jury were directed in unobjectionable terms as to the use they could make of the evidence of complaint. There were factual issues concerning the delay in the complaint to the mother which had been raised in the evidence and in addresses of counsel. It was clearly open to the jury to accept the complainant's reasons for not having told her mother immediately or for some time about the assaults that took place on 13 December 2002. As Judge Freeman pointed out to the jury, those reasons, according to the complainant's evidence, included the business relationship which existed between her mother and the accused, the fact that the complainant and her mother were living in the house of the accused and that in any event, telling her mother what had occurred, was, she said, the hardest part of the whole thing.

13 It is also clear from the summing up, and not in dispute, that much had been made in the address of defence counsel about discrepancies between the versions of the complaint given by the two witnesses when compared with the evidence of the complainant about what had happened. See Tr p220, 222 and SU p22, 29-30.

14 These matters suggest strongly that the absence of objection at trial to the admission of this evidence of complaint or to the directions given on the topic was a stance deliberately taken by the appellant's very experienced trial counsel. In saying this, I am not suggesting that the evidence was inadmissible, the topic to which I shall shortly turn. But what I have said already demonstrates why this is, in my opinion, a proper case for the application of rule 4. The appellant should be refused leave to ventilate on appeal these two matters that were not raised at trial.

15 As to admissibility, the appellant submits that Mr de Rouw's evidence was so vague, and so lacking in any element of complaint as to sexual touching, that its probative value was clearly outweighed by its prejudicial effect. The jury could only speculate adversely to the appellant as to the meaning of this evidence. I do not agree. What the complainant told Mr de Rouw was capable of providing some corroboration of her account. It was clearly indicative of an unwelcome sexual advance about which the complainant did not want to go into detail, for understandable reasons. There were discrepancies as to the details and the completeness of what the complainant told her friend. Obviously much was made of them at trial, but it was for the jury to weigh them and the reasons for them.

16 The jury were reminded in the summing-up about the submission of defence counsel in final address when “she suggested that the complaint made to Mr de Rouw was so lacking in the exotic detail of what the complainant suggests happened to her on the 13th that you would not regard it as supporting her version at all and she [counsel] suggested overall you would conclude or could conclude in order to have a reasonable doubt, that in fact the entire version given by [the complainant] was a reconstruction and she took you to the evidence about the young woman having flashbacks, being nauseous perhaps with too much alcohol, feeling worried, confused” (SU pp29-30).

17 The appellant submitted that the trial judge should himself have endorsed the submission of counsel, as with a warning about the dangers of identification evidence (cf Domican v The Queen (1992) 173 CLR 555 at 562). I do not agree. This was not a situation in which the judicial experience in the matter at hand was markedly superior to that of the jurors. Domican was an identification case. Nothing about this aspect of the case called for a judicial warning as distinct from a reminder of the competing submissions.

18 As to what the complainant told her mother, the appellant submits that the evidence should not have been admitted as evidence of the truth of the matter represented because it was not “fresh in the memory of” the complainant when she spoke to her mother. It was not admissible pursuant to s66 of the Evidence Act and the principles stated in cases such as Graham v The Queen (1998) 195 CLR 606 and Papakosmos v The Queen (1999) 196 CLR 297 at 309-310. This point was not raised at trial and there is nothing to suggest miscarriage of justice stemmed from the admission of the evidence. The time gap (66 days) was not great and there is every reason why the memory of the events was sufficiently fresh to make the evidence admissible on this wider basis. The jury were able to assess the reasons for and impact of delay.

19 The appellant submits that the summing up was deficient in that the jury should have been told that the evidence of the mother could not be used to support counts 5 and 7. This is a matter of factual detail. Its immateriality is underlined by the absence of request for any such direction at trial.

20 The directions as to the complaint span pp19-23 of the Summing Up. They were not the subject of any application for further direction at trial. There was no error, nor any miscarriage relating to this matter.

Whether verdicts unreasonable or inconsistent

21 Grounds one and two in the notice of appeal were addressed concurrently. The first contends that the verdict on counts 5, 6 and 7 were unreasonable having regard to the evidence. The argument in support of this ground was for practical purposes incorporated in the argument on the ground two, which contends that the verdicts on counts 5, 6 and 7 were inconsistent having regard to the verdicts of not guilty on the other counts.

22 With the prior concurrence of counsel for each party, the trial judge told the jury that their verdicts on each count did not have to be the same. His Honour continued (SU34):

..but when you are considering any verdict or the verdict on any count, if, for example, you found that the evidence of [the complainant] did not persuade you beyond reasonable doubt of the guilt of the accused on that count, or those counts, then you would need to bear in mind the fact that she had not persuaded you beyond reasonable doubt in respect of that count or counts, when you were evaluating the extent to which you could rely upon her evidence to convince you beyond reasonable doubt on the other count or counts, because after all I remind you that it is only her evidence upon which the Crown can rely to establish beyond reasonable doubt the guilt of the accused.

23 During the earlier discussions as to this proposed direction, counsel for the accused said (Tr p33):

I wouldn’t object to that. I would never say it was an all or nothing at all case, because there’s aspects they could accept or certain things they could or could not accept, but I think that’s a perfectly fair direction, your Honour.

24 I am not suggesting that this exchange precludes this Court from examining these grounds of appeal, but it is highly relevant to the ultimate question whether there was a miscarriage of justice. After all, the jury were fully seized of the added difficulties in the Crown case in relation to the counts on which the appellant was ultimately acquitted.

25 The events addressed in counts 1 to 4 happened immediately after the complainant, on her own evidence, had leant down and kissed the appellant on the cheek as he lay on his bed covered with a sheet wearing a blue pyjama top. The complainant was an adult (aged 20 at the time) and both parties had consumed a significant amount of red wine earlier in the evening. The appellant himself gave evidence that agreed basically with that of the complainant with respect to the first three counts, except that on his version of the conduct in question was consensual. The appellant further said that he had intended to have oral sex with the complainant (count 4) but had then not done so. Clearly the jury were not persuaded beyond reasonable doubt that whatever did take place at this early stage occurred without the consent of the complainant or in circumstances where the appellant had the necessary guilty state of mind.

26 The acquittal on the eighth count was entirely explicable and did not reflect adversely on the complainant's credibility. This matter is as good as conceded in para 19 of the appellant's written submissions in this Court. It is also something observed upon by the trial judge in his remarks on sentence when he said:

Count eight rested on an assertion that following this engagement between the two, the complainant had gathered up her clothes, was leaving the room, turned and saw the offender in the act of further masturbation. She only saw him doing that because she turned and perhaps the jury were not persuaded this was an act directed at her.

27 There were particular difficulties in relation to counts 9 and 10. They related to different occasions when there were said to be people in the near vicinity. The summing up records (at pp 19 and 30) that defence counsel made much of the improbabilities inherent in the last of the charged events. In addition, there was no evidence of particular complaint as to these acts.

28 Of course, one must not overlook the possibility that guilt was not established in these later counts because the credibility of the complainant had been destroyed. But the appellant has not established to my satisfaction that this was such a case. It is relevant, although again not conclusive, that the jury were given careful instructions in accordance with R v Murray (1987) 11 NSWLR 12 that they had to scrutinise the complainant's evidence with great care before making any conclusion of guilt in circumstances where the evidence rested solely on acceptance of one witness (SU p16). The jury were also reminded that the Crown relied solely on the evidence of the complainant to establish the guilt of the accused beyond reasonable doubt in relation to each count (SU p34).

29 The parties are on common ground in recognising that there were understandable reasons why the appellant was acquitted on counts 1-4 and 8-10. The critical question is whether the verdicts of guilty on counts 5, 6 and 7 were explicable on the evidence having regard to the way the case was fought at trial; or whether something points to miscarriage such as compromise in the verdicts or material that necessarily reflects a view that the complainant was untruthful or unreliable such that the this Court should consider the reasonableness of the guilty verdicts on the basis that the complainant was a person of damaged credibility. I am paraphrasing the reasoning of the High Court in MFA v The Queen (2002) 213 CLR 606 esp at 617[35] and 631[86]-[89], [97].

30 In my opinion, nothing in the evidence shows that the jury were obliged to have a reasonable doubt about guilt on counts 5, 6 and 7. In contrast to the circumstances of the earlier counts, the complainant swore that she started saying things like "you shouldn't be doing this, this is wrong" and "you are my mother's boss" during the conduct represented by counts 3 and 4. The conduct involved in count 5 commenced, on the complainant's version, with the complainant asking the appellant to stop because it was hurting her. She went to leave. He grabbed the back of her head and pulled it towards his groin. She said she did not want to do that. He released his hold on her head and took her left hand and pulled it towards his penis. She said "I don't want to do that, I don’t want to do things like that". She curled in a ball with her back against the bed head. The appellant then placed his fingers into her vagina and moved them around. This was the act of sexual intercourse charged in count 5. The conduct addressed in counts 6 and 7 followed virtually immediately. Count 7 (which concerned penile vaginal intercourse) was preceded by the complainant saying, on her version, "No" and "you shouldn't be doing this. Stop this." (Tr p34).

31 The appellant submits that, unlike the situation in MFA, there was no material supporting the complainant's version of events in respect of those matters where convictions were sustained. This overlooks the complaint evidence. Furthermore, it is not a conclusive point of distinction in that MFA does not turn on such a categorical proposition.

Misdirection as to roles of prosecutor, defence counsel and jury?

32 After the appeal had been called on for hearing, senior counsel for the appellant sought leave to rely on an additional ground as follows:

The introductory remarks given by the learned trial judge to the jury after they were empanelled were unfairly prejudicial to the appellant in the manner in which they presented to the jury the respective roles of the Crown Prosecutor, defence counsel and the jury.

33 Written submissions were handed up. Since, however, this ground had not previously been raised, the Crown sought and was given the opportunity to reply by a written submission. In the upshot, each side relied solely upon the written submission.

34 It is customary and most helpful for the newly empanelled jury to be given information about the trial. Some of this is general, relating to the respective roles of judge, jury, prosecutor and defence counsel, the requirement for unanimity, standard of proof and other matters of common procedure. Some of the information is particular to the trial in question, for example its duration and the names of the witnesses proposed to be called.

35 Four portions of the opening remarks are mentioned in the appellant’s submission, with the emphasis as supplied by the appellant.

After the jury was empanelled, and following some remarks about the need to obtain a fair hearing for both the Crown and the accused, his Honour said at T4.45:

“It is not infrequently happens in the course of a criminal trial, there is some debate about some nice point of law, and if that does arise, and I am sure it will because there is something Ms McSpedden (trial counsel for the appellant) has already told me she needs to raise with me as a matter of law. Then I will ask you to wait outside while I listen to that sort of argument and decide it.”

His Honour then went on to explain the role of the Crown Prosecutor. He said at T6.55:

“The way we are presently constitutionally constructed, he brings the charges in the name of her Majesty the Queen by way of the Office of Director of Public Prosecutions for the State of New South Wales. He brings the charges on behalf of the community as a whole and because he does that acts on behalf of the community , he has an obligation not just to call evidence that he thinks supports the Crown case. His obligation in fact is to put before you any relevant evidence of which he is aware. At the end of the trial I anticipate he will suggest to you that taken over all, the evidence does prove beyond reasonable doubt the guilt of the accused. Because he has this representative role on behalf of the community but in the name of the Queen…”. (Emphasis added).

His Honour dealt with the role of defence counsel in the following terms at T7.12:

“The woman in robes at the other end of the Bar table is Ms McSpedden. She appears for the accused, it’s her job to represent the accused, to do the best she can for him, and amongst other things to put the Crown to that high standard of proof, that is, proof beyond a reasonable doubt”.

A little later in these introductory remarks, after noting the anticipated length of the trial to be three days, said at T7.55:

“That means it’s not a long trial. It does not mean of course that it is not an important trial. All trials are important enough, obviously from the point of view of an accused, but when you think about it they are also important from the point of view of the community whom you now represent ”. (Emphasis added).

36 These remarks elicited no objection at trial.

37 The appellant submits that the overall effect of what his Honour said would have been to give the jury the following impressions:

• Both the jury and the Crown Prosecutor were representatives of “the community”, and they were accordingly on “the same side”.

• The Crown Prosecutor would conduct the case in a fair manner and would not attempt to have excluded evidence which was not favourable to the Crown case.

• Counsel for the defence would try to obtain the most favourable result for her client and would if necessary seek to have evidence excluded in order to achieve this.

38 The appellant further submits that these directions given to the jury were unfairly balanced in favour of the Crown because they not only portrayed the Crown as being conspicuously fair, but did so in a manner which sought to distinguish the Crown’s approach from that of defence counsel. The link between the “community” role shared by the Crown Prosecutor and the jury impermissibly tended to influence the jury to believe that their role was in some way aligned with that of the Crown Prosecutor. The directions given are said to have created an unfair imbalance against the appellant from the very inception of the trial proceedings.

39 I do not agree.

40 None of the judge’s statements were untrue or misrepresented the situation in any way.

41 The reference to defence counsel in the first and third of the passages was informative and relevant. The statement that her role included doing the best she could for the accused would have been seen as a complimentary and helpful explanation. The remarks did not suggest that counsel would conduct the defence case with impropriety. It is not submitted that the tone was sarcastic. Absent sarcasm, the remark conveyed no more than that the jury should not see anything improper in defence counsel vigorously putting the Crown to proof.

42 The statement in the first passage that defence counsel proposed to raise a matter of law may or may not also have implied that she would be seeking to exclude some evidence that the Crown proposed to tender. No juror would have been surprised, let alone shocked or diverted from the task, by such information. Many objections to evidence were later taken at trial, in the presence of the jury.

43 When his Honour dealt with the role of the prosecutor, adverting among other things to the obligation to lead evidence whether or not it supported the Crown case, he was doing little more than providing an attenuated summary of the principles in The Queen v Apostilides (1984) 154 CLR 563. I see nothing untoward in this, although it was an unnecessary piece of information for the jury.

44 The appellant’s principal complaint relates to the references to the prosecutor bringing the charges “on behalf of the community as a whole and because he does that acts on behalf of the community” (second passage) and to the jury itself being representative of the community (fourth passage). The separation of the two observations (they are a page apart in the transcript) makes it hard for the appellant to establish the sinister secondary implication sought to be drawn, ie that both prosecutor and jury were in some way “on the same side”. The lastmentioned words were never used nor, in my view, were they implied. After all, the jury were well aware that they were to become the factual arbiters of an adversary contest in which the Crown had to establish its case beyond reasonable doubt. This understanding would have been reinforced throughout the course of the trial.

45 Furthermore, each comment was accurate in its own context; and would have been understood in that context by the jury.

46 As regards the prosecution, the point being made was that the charges were not being advanced in a private capacity. A traditional monarchist might cavil at using any term other than “the Crown” to denote the official role of the prosecution arm. But monarchists and republicans of all shades know that prosecutions for serious crimes in modern Australia are conducted by an arm of government. They also know that this arm must prove its case with evidence duly admitted, in accordance with the directions of the trial judge and to the criminal standard of proof. Because “in the eyes of the jury the prosecutor is the State… the prosecutor must refrain from doing anything which might improperly influence the jury and deny the defendant a fair trial” (Alister v The Queen (1984) 154 CLR 404 at 429-30 per Murphy J).

47 As regards the jury itself, it is commonplace to refer to its representative nature. Many recent amendments to the Jury Act have sought to achieve this goal more completely, as the High Court acknowledged in Cheatle v The Queen (1993) 177 CLR 541 at 560. Indeed, juries have been discharged if the right of challenge has been exercised in a manner clearly opposed to that aim (R v A Judge of District Courts & Shelley; Ex parte Attorney General [1991] 1 Qd R 170. Cf R v Su [1997] 1 VR 1). See generally Michael Chesterman, “Criminal Trial Juries in Australia: From Penal Colonies to Federal Democracy” in N Vidmar, ed, World Jury Systems, OUP 2000). The random process for selecting the panel and balloting the jurors to be called were alone sufficient to bring the point home to the instant jury.

48 The often encountered reference to the jury representing the community also conveys and reinforces the idea that they are not to be overawed by the (specialist) lawyers or by individuals in their own ranks. As lay people they were to apply common (ie community) sense to their particular role in the trial.

49 I would also refuse leave under r4 to raise this point.

50 Accordingly, I would dismiss the appeal against conviction.

Application for leave to appeal against sentence

51 In consequence of his conviction on counts 5, 6 and 7, the applicant was sentenced to an effective total of three years and six months imprisonment with a non-parole period of two years and eight months. The overall sentence was made up as follows:

(i) Count 5 (sexual intercourse, digital penetration) - two years imprisonment from 17 February 2005 to 16 February 2007 with a non-parole period of eighteen months expiring on 16 August 2006.

(ii) Count 6 (indecent act towards complainant) - twelve months imprisonment to be served cumulative upon the first sentence, ie to run from 17 August 2006 to 16 August 2007.

(iii) Count 7 (sexual intercourse, penile penetration) – two years imprisonment to run from the expiration of the first sentence, ie from 17 August 2006 and expiring on 16 August 2008. A non-parole period of 14 months was fixed.

52 The applicant’s challenge is directed to the sentences imposed on counts 5 and 7, in particular the decision to order that the sentences be served cumulatively.

53 The applicant submits that there were exceptional circumstances stemming not only from the circumstances of the offences, but based also on the strong subjective case presented on his behalf.

54 As to the former, the applicant argues that the offending conduct followed upon certain apparently consensual contact between him and the complainant. This submission seeks to convert the acquittal on the other counts into a positive finding that there was consensual intercourse. This strikes me as fallacious. But in any event the jury must be taken to have been satisfied beyond reasonable doubt that counts 5 and 7 involved the requisite guilty state of mind in which the applicant either knew the complainant did not consent or was recklessly indifferent on that topic. The line was crossed and it is not open for the applicant to argue, consistently with the verdict, that he was labouring under some species of mistake or misunderstanding.

55 The sentencing judge gave weight to the fact that the applicant had a strong subjective case. He was 58 years old at the time of the offence, with no prior convictions and what was described as a “positive store of good character upon which to rely because of … involvement in community organisations… and other individual acts of generosity and kindness. He is a veteran of the Vietnam war and has been diagnosed as suffering from post-traumatic stress disorder stemming from that conflict”. Judge Freeman emphasised these and other favourable matters. His Honour recorded that the Crown accepted that there was no real prospect of re-offending and that prospects of rehabilitation were excellent.

56 The judge nevertheless concluded that the circumstances did not justify departure from the general principle that crimes of this nature had to result in a sentence of full-time custody. He characterised the offences as involving a vulnerable young woman. The impact on the complainant has been particularly severe in several respects.

57 The length of the sentences and the remarks on sentence confirm that the judge gave considerable weight to the favourable subjective issues. His Honour did, however, not err in making the sentences on the two more serious offences cumulative.

58 I have not overlooked the submission that the sentence referable to count 6 was excessive. It is however unnecessary to resolve that issue because nothing turns on it. The sentence was made to run cumulatively with the longer, eclipsing sentence following conviction on count 7.

59 There should be leave to appeal, but the appeal as to sentence should be dismissed.

60 BARR J: I agree with Mason P.

61 HALL J: I agree with Mason P.

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02/02/2007 - Incorrect Judge on cover sheet - Paragraph(s) n/a