Sloane v The State of Western Australia - [2006] WASCA 202

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: SLOANE -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 202

CORAM: STEYTLER P
WHEELER JA
BUSS JA

HEARD: 6 JUNE 2006

DELIVERED : 4 OCTOBER 2006

FILE NO/S: CCA 147 of 2004

BETWEEN: ROBERT JOHN SLOANE
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :HEALY DCJ
File No  :IND 759 of 2004

Catchwords:

Turns on own facts

Legislation:

Evidence Act 1906 (WA), s 36BC

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Ms F R Veltman
Respondent: Ms T D Sweeney SC & Ms A D C Smit

Solicitors:

Appellant: Frances Veltman
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Crofts v The Queen (1996) 186 CLR 427

Case(s) also cited:

Bull v The Queen; King v The Queen; Marotta v The Queen (2000) 201 CLR 443
Dowling v The Queen, unreported; CCA SCt of WA; Library No 970600; 14 November 1997
Harriman v The Queen (1989) 167 CLR 590
Johnson v The Queen [2002] WASCA 78
Kilby v The Queen (1973) 129 CLR 460

STEYTLER P: I agree with Wheeler JA.
WHEELER JA:

The appeal

The appellant was convicted after trial in August 2004 of theft, unlawful deprivation, threatening to kill, three counts of assault occasioning bodily harm, and six counts of sexual penetration without consent, all committed on one complainant on or about 25 March 2003.
The original grounds of appeal were drafted by the appellant in this matter and filed in September 2004. The matters raised by those grounds were a variety of matters of fact, which were not, either alone or together, sufficient to ground a submission that the verdict was perverse, although the view that it was perverse, was expressed by the appellant on a number of occasions on which he appeared in this Court at directions hearings. The grounds also did not identify any error of law. Thereafter, the appellant having been refused legal aid, the appeal progressed very slowly.
The Court is therefore indebted to Ms Veltman, who, acting pro bono, distilled from the various materials put forward by the appellant two potentially arguable grounds of appeal, and provided written submissions in relation to those grounds. At the hearing of the appeal on 6 June 2006, the Court gave leave for those two grounds to be substituted for the grounds previously formulated by the appellant. In order to understand those grounds, however, it is necessary to turn in some detail to the State case, and to the case of the appellant, at trial.

The case at trial

The State case at trial was that the offences occurred over the course of the day and night of 25 and 26 March 2003 in an office block in Murray Street. The complainant was 22 years of age at the time. Around midday on 25 March, she was in East Perth, to attend a drug rehabilitation programme at the Next Step Clinic. When she left the clinic, the appellant was sitting outside on the grass. He asked for a cigarette, which she gave him, and they struck up a conversation. She told the appellant she was going to walk into the city and he indicated he was going that way too. She thought he seemed nice and did not mind him walking with her. On the way, he asked her whether she wanted a drink. She agreed to go for a drink with him and they stopped at a bottle shop and she purchased two bottles of Vodka. They came to a building in Murray Street and the

appellant invited the complainant into the building. The complainant thought they were going there for a drink. They went into the building, which was largely vacant.

The appellant invited the complainant into one of the empty offices and asked for sex. She refused and the appellant became violent. He tried to choke her by putting his hands around her throat and told her he would kill her. He kicked her to the legs and punched her all over, firstly while she was standing and then after she fell to the ground. He said that either she would have sex with him, or he would continue "flogging" her. It was clear that she was not free to leave. During the course of the afternoon and evening, the appellant forced the complainant to perform oral sex on him, performed oral sex on her, and then forced his penis into her vagina and ejaculated. After having sex with her, the appellant said he was scared she would go to the police and told her that he was going to kill her.
He required her to lie down beside him, which she did. He removed approximately $150, a bus pass and a list of telephone numbers from her purse. A few hours later, when it was getting dark, there were further sexual assaults. She was forced to lie or sit beside the appellant all evening, while he was next to her debating aloud with himself whether he would let her go or whether he would kill her. Neither of them slept.
At sunrise the next morning, the appellant was still talking about what to do with the complainant. He said he was scared of going back to gaol and she promised him she would not go to the police. Eventually, he let her go. She left quickly, caught a bus in St George's Terrace and went to see a friend, a Mr Smith, at his residence in Cloverdale. She immediately complained to him that she had been kidnapped, sexually assaulted, and beaten by an "Aboriginal bloke" by the name of "Tilly". "Tilly" is apparently the appellant's nickname. The following day, she telephoned police and told them she wanted to make a complaint. She spoke to detectives. She was examined at Royal Perth Hospital, where extensive bruising and abrasions on her body were observed. There was no genital injury, but that finding was not inconsistent with penetration having occurred.
In addition to the evidence of the complainant, there was evidence from a contract cleaner, who described the general office layout and who described which areas were occupied and which were vacant. The doctor who examined the complainant at Royal Perth Hospital gave evidence of the injuries which she observed. They included a bruise under the left eye, a superficial abrasion on the neck, consistent with scratching, bruising to the arms, including bruising which was consistent with being caused by "finger pads", superficial abrasions to the right hand and bruising to the right and left legs. Some of the bruises could have been older than 18 hours, but it was not easy to be sure of the age of those bruises. The doctor said that Mogadon and Valium, which the complainant had taken at Next Step, could, depending upon the person's tolerance, cause a person to become sleepy or drowsy. Hallucination or make‑believe were not effects known to occur in most people taking the drugs, although it was possible that there could be some confusion and incoherence.
A registered clinical nurse from Next Step gave evidence of seeing the complainant on 24 March for the consultation on that day and not noting any injuries during that consultation, but of seeing the complainant on 27 March and observing extensive bruising on that date. Mr Smith gave evidence of the complainant's upset demeanour when she arrived at his house and of the complaint which she made, and of the injuries which she showed him.
An ANZ Bank officer gave evidence of transactions by the appellant at 77 St George's Terrace at 3.05 pm on 25 March and 11.34 am on 26 March, which evidence the appellant suggested was not consistent with the account given by the complainant.
The appellant's account of events was that he had met the complainant near a "deli" on 24 March 2003. They struck up a conversation, later went to a bottle shop in East Perth and purchased some cask wine, and went down to the Swan River, where they drank all the wine, smoked and got to know each other. The complainant kissed him. After a variety of events, they both ended up talking to some Aboriginal people in Victoria Park, who invited them to stay at their house that night. They did so. The complainant suggested on that night to the appellant that they commit an armed robbery on a nearby service station, and, in preparation for that, got dressed in a variety of clothes. At some points, the appellant said he regarded this suggestion as a "bluff".
They met a blonde lady just before they reached the service station, who asked them what they were doing. The appellant replied that they were just about to "do the service station over" and the blonde lady tried to persuade them not to do so, by giving them approximately $30 to $40, or $50. The blonde lady walked with them into the town centre of Victoria Park. When they reached a Good Samaritan clothes bin, the blonde lady and the complainant started going through the bags, with the appellant standing nearby.
Suddenly, the complainant and the blonde lady started swearing at each other and the blonde lady punched the complainant in the head and got her by the hair, while hitting her approximately six or seven times. The blonde lady stopped for a while to catch her breath, and then started "hoeing in again", also kicking the complainant. The appellant grabbed the blonde lady by the arm and stopped her.
Again, after a variety of other events, they realised that they could not find the house of the Aboriginal people with whom they were staying and decided to stay overnight in a park instead. That night, the appellant and the complainant had consensual sex in a shed in the park. The next morning, they eventually found the Aboriginal people's house, where the complainant had a shower.
They then caught a bus into the city, and the complainant went to get her medication. The appellant asked the complainant whether she knew someone who could give them some "smoko". As she did not, the appellant said he had some "buds" in his building. They went to the building, had a couple of cones, kissed and had consensual sex on the carpet. They also had consensual sex in the toilet in the building. He left for approximately 20 minutes to go and buy some burgers, using $20 he had withdrawn that day. When he returned, they had sex again and slept. They had sex a number of times.
The appellant said he had not recognised the photograph of the complainant shown to him by police and had denied knowing her, because she was a lot prettier than depicted in the photograph. He also said that his memory may have failed him, as the photograph was shown to him a while after the last occasion on which he had seen her.
The manager of the Community Justice Services gave evidence that the complainant attended the Victoria Park office of the Department of Justice on 24 March and 26 March. The records did not indicate the times at which she attended the office.
Not only was the story told by the appellant a somewhat unusual one, but it was told in a colourful and at times incoherent way, and accompanied with swearing, and in a very rambling style of speech. As an example, in response to the proposition that there was no sexual intercourse in the office toilet, the appellant answered as follows:
"Because why would I be sitting in bloody Perth after something like this? I think I might be a silly man but I'm not a fucking idiot, you know what I mean, and I do not - I'm not a weirdo, I don't jump out of trees, and when I do make love to a woman I respect them, right. At what youse have come back with me is the most - in my life I never would've dreamed of being here listening to this let alone being fucking accused of some - it's sick. In gaol I would stab a rapist, you know, that's our code of men, right, but you've got to look at this, Mrs Barbagallo, that you're barking up the bloody wrong tree and I think you'd better go and get this woman for perjury, for lying and scheming and trying to get some sort of a bloody innocent man and it's mentally disturbing me, your Honour. It has been for a long time. Could you imagine being accused of something you haven't done and in this shape and form what it would do to you, you know, like in moral and spirit and your family going 'Fuck.' I've never been this way in my life. I grew up with bikers, Ms Barbagallo. We respect people. If they fuck us around we fuck them around, you know what I mean. We don't - we're not like this. We're not weirdos, mate. I'm a bloody genuine Aussie man and that's it, you know. That's the way it is."
Similarly, in response to the proposition that he had hit the complainant because she would not have sex with him, he responded as follows:
"Ms Barbagallo - Ms Barbagallo, if I hit that lady where is the big bruise on her? There's these little bruises but this you're saying all over, and scratches, three nail scratches. Where the fuck have I got the nails to get three triangular nail scratches? It's clearly from the bloody girl where she had the fight which I told you the truth. If I walked up and smacked you in the head you'd be split and split from here to there, wouldn't you? No doubt, Mrs Barbagallo. But if a woman walked up and hit you, you might walk away with a bruise, right. You didn't take that into account, did you? It doesn't matter to you anyway."

The grounds of appeal

The grounds of appeal are as follows:

"GROUNDS OF APPEAL
1.The learned Judge erred in not allowing the application by Defence Counsel to elicit evidence from the witness Dr Lincoln in relation to the consensual sexual activity between the Complainant and Mr Smith prior to Dr Lincoln's medical examination.
PARTICULARS - INJURIES
(a)The Complainant's bruising injuries were part of State case;
(b)evidence from Doctor Lincoln could have been that the bruising injuries were sustained by the consensual sexual activity;
(c)this evidence would provide reasonable doubt as to whether the bruising injuries were caused during the alleged sexual assault.

2.The learned Judge erred in not allowing the application by Defence Counsel to discharge the Jury as a result of the Complainant's evidence during trial in that:
(a)The Complainant gave evidence which indicated that the Appellant had previously been imprisoned;
(b)this was prejudicial to the Appellant to the extent that it could not be corrected by direction to the Jury."

Ground 1

As Ms Veltman correctly points out, the complainant's bruising injuries were of relevance to the State's case, since it was the State's suggestion that bruising (at least in that degree) was indicative of force, and that force was not consistent with consent.
The evidence in relation to consensual sexual activity between the complainant and Mr Smith, which was not permitted to be the subject of cross‑examination by counsel for the appellant, was found in the witness statement of Mr Smith. It indicated that some time after the complainant had arrived in a very upset condition at his house and had shown him her injuries, they later went to a party for several hours, with the complainant telephoning the police from the party. They returned home and then had consensual sex. He said that they were both drunk at the time at which they had sex.
It was submitted on behalf of the appellant that evidence of that consensual intercourse was potentially relevant for two reasons. First, it was submitted that to the extent that the medical practitioner who had examined the complainant may have given evidence that some of her bruising could have been consistent with consensual sexual activity, then that consensual sexual activity could have explained some of the complainant's injuries. Second, it was submitted that this was very unusual and unlikely behaviour for a woman who had so recently been the subject of serious sexual assaults, and that it would therefore tend to cast doubt on her credibility.
The admissibility of that evidence fell to be determined having regard to s 36BC of the Evidence Act1906 (WA). It provides that in proceedings for a sexual offence, evidence relating to the sexual experiences of the complainant at any time and with any person, not being part of the res gestae, shall not be adduced unless leave of the Court has first been obtained, and that the Court shall not grant such leave unless satisfied that what is sought to be adduced has substantial relevance and that its probative value outweighs any distress, humiliation or embarrassment which the complainant might suffer as a result of its admission. It is not necessary to consider the potential effects upon the complainant, since, in my view, the evidence failed the test of "substantial relevance".
Looking first to the possibility that the consensual sex could explain some of the bruising, the difficulty with that proposition is that the doctor was not cross‑examined about whether consensual sexual intercourse could have explained any of the bruising on the complainant's body. It would have been open for counsel for the appellant to have asked questions of that kind, prior to obtaining a ruling on the admissibility of the consensual sexual activity with Mr Smith. As I have noted, it was part of the appellant's case that he had had consensual sexual intercourse with the complainant. If counsel did not wish to explore that question in the context of the appellant's allegations of consensual sexual intercourse with the complainant (as he obviously did not, since he asked no questions directed to the topic), it would, in relation to the present issue, have been open to counsel for the appellant at trial to have sought to have explored with the doctor at a voir dire whether any of the complainant's bruising could be explained by consensual sexual intercourse, so as to lay the foundation for an application pursuant to s 36BC based upon that evidence. That did not occur.
The proposition that some indeterminate amount of the injuries sustained by the complainant could have been explained by her having had consensual sexual intercourse with someone is therefore no more than speculation. It does not provide a foundation for the admissibility of the evidence on that basis.
In any event, it was the appellant's evidence that the complainant sustained her injuries as a result of a violent struggle with a blonde woman, who punched and kicked her repeatedly, and it was his evidence that he and the complainant had had consensual sexual intercourse a number of times. It is difficult to see, in that context, how his case would have been assisted in any event, by providing a further alternative explanation for some (but plainly not all) of the complainant's injuries. This seems to have been the view taken by counsel for the appellant at trial, who abandoned his application to cross‑examine the doctor when those questions were raised with him.
So far as the second suggested basis of admissibility is concerned, it rests upon an assumption as to the behaviour to be expected of a young woman who has been unlawfully detained and repeatedly sexually assaulted. There was, of course, no expert evidence, at trial, or sought to be adduced before us, as to how a traumatised woman might be expected to behave in that situation. It does not seem to me that it is likely to be something within the ordinary experience of jurors so as to enable them to form a view of the complainant's credibility on that basis.
To the extent that it is permissible to rely on ordinary experience and understanding of human nature, I would make only these observations. First, there is a variety of possible reactions to any particularly traumatic event, ranging from hysteria at one end, through to a "stiff upper lip", and an attempt to carry on as normal, at the other. It is difficult to see any particular reaction to extreme events such as those alleged here as being more likely than another. To the extent that there may be considered to be some "normal" reaction which a young woman might display to such abnormal events, it must be remembered that the particular complainant in this case was, in any event, a rather unusual young woman; her attendance at the Next Step Clinic, her apparently rather heavy alcohol consumption and her use of cannabis in addition to the drugs she was prescribed suggests she was somewhat troubled.

Finally, even if one were to assume, as was apparently suggested by counsel for the appellant at trial, that there is some normal reaction, which might involve an aversion to sexual contact for some time after such events, one can see a number of reasons why even a young woman having such a reaction might wish to engage in consensual sex with her boyfriend. She may wish to test for herself whether she has developed an aversion to consensual sexual activity; she may wish to reassure her boyfriend that she has not; or perhaps if she consumes alcohol (as this complainant plainly had), then that consumption may overcome the effects of such an aversion.
It seems to me that the simplistic assumption about the normal behaviour of a woman in the position of the complainant advanced by the appellant's counsel at trial is precisely the sort of stereotype which provisions such as s 36BC of the Evidence Act were designed to overcome. It is therefore my view that this ground of appeal must fail.

Ground 2

This concerns evidence given by the complainant that the appellant " ... was still contemplating what to do with me, whether he was going to kill me or what. He was scared that he was going back to gaol. I just kept saying that I wouldn't go to the police". This evidence related to the conversation in the morning, after which the appellant eventually let the complainant leave. That is, the conversation occurred after the events the subject of the counts in the indictment. It was, nevertheless, of some relevance to them, as tending to explain the fact that the complainant had apparently remained with the appellant for some considerable time on the morning following the various events the subject of the indictment. However, although relevant, its relevance was not great, and it appears that, during discussions between the prosecutor and counsel for the appellant, the prosecutor had agreed not to lead the evidence and had advised the complainant not to make a reference to the appellant having been to gaol.
The prosecutor did not lead the evidence; rather, it was volunteered by the complainant. Why the complainant gave that evidence was not explained at trial, and is not important.
The disclosure that the appellant had said that he had been in gaol previously - assuming that the jury would have accepted that evidence as credible - was plainly prejudicial. In relation to prejudicial evidence which is disclosed unexpectedly at trial, the course to be taken depends on the seriousness of the disclosure in the context of the issues at trial, the stage at which the disclosure occurs, and the likely effectiveness of a judicial direction designed to overcome any apprehended impact: see Crofts v The Queen (1996) 186 CLR 427 at 440 ‑ 441.
In this case, the learned trial Judge considered that any prejudice occasioned by the complainant's comment was capable of being cured by a direction. His Honour directed the jury in the following terms:
"You may recall during [the complainant's] evidence to you that she made reference to where [the appellant] said he had been and you heard reference yesterday by [the appellant], when he was giving evidence, to gaol. Normally a jury wouldn't hear about those matters because you're here to judge what the prosecution alleges what he did on this occasion, not what he may have done in the past, and you should put these matters out of your mind when you're considering whether or not he has committed the offences. Disregard those matters. You must give him a fair trial in relation to the matters he's charged with and to which he has pleaded not guilty. You can't assume that he's guilty of these offences because of what he may have done in the past or that he's not telling the truth because of what he may have done in the past. Those matters aren't relevant at all to the likelihood of him having committed these offences and don't be prejudiced against him because you heard about those matters."
In my view, a direction of that kind was all that was required in a case such as the present. As I have noted, the reference to the appellant having been in gaol was of some relevance, although its relevance was very limited. There was nothing in the complainant's comment to suggest what he might have been in gaol for. It was said in the context of a trial where the appellant's case involved a sustained attack upon the complainant, the prosecutor, and the interviewing officers as all variously telling untruths and attempting to "stitch up" the appellant. The appellant volunteered, during the cross‑examination from which I have quoted, information about what "our" code was in gaol. Further, it appears from an exchange between the trial Judge and prosecution counsel that, at one point while the jury panel was present in the courtroom, the appellant had been talking audibly to the prison guard, complaining that the appellant had been in prison for something which he did not do. It was not suggested that counsel had been mistaken, or had misheard that conversation.

Finally, it would have been obvious to the jury that the appellant was a very unusual person. His own evidence portrayed him as a man leading an itinerant lifestyle, wandering the streets, camping in offices, drinking considerable amounts of alcohol, and smoking cannabis. That he might have found himself at some time in gaol with such a lifestyle, would hardly have been surprising. Additionally, his repeated suggestions that the authorities, including the police, were anxious to see him convicted, does give rise to an obvious question as to why the police might have such an interest in him. The complainant's comment was, in the circumstances of this case, a revelation which was likely to have had no significance, and the firm direction given was, in my view, all that was called for in response to it.
I would therefore dismiss the appeal.
BUSS JA: I agree with Wheeler JA.