Smith v The King

CITATION: Smith v The King [2022] NTCCA 14
PARTIES: SMITH, Jeffrey Alan

v
THE KING

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  CRIMINAL APPEAL from the SUPREME COURT exercising Territory jurisdiction
FILE NO:CA 11 of 2021 (21933411)
DELIVERED:  12 September 2022
HEARING DATES:  28 March 2022
JUDGMENT OF:  Kelly, Barr and Burns JJ
CATCHWORDS:
CRIME – Appeals – Appeal against conviction – Unreasonable verdict

Application for leave to appeal against conviction following trial by jury and application for an extension of time within which to seek leave to appeal – Heard with argument on appeal – Applicant found guilty by a jury of two offences of gross indecency and two offences of sexual intercourse without consent – Found not guilty of aggravated assault, deprivation of liberty and two offences of sexual intercourse without consent – Whether guilty verdicts unreasonable or unable to be supported having regard to the evidence – Whether guilty verdicts inconsistent with not guilty verdicts – No logical inconsistency between the not guilty verdicts – Crown case against the applicant did not depend solely on the jury accepting the truthfulness of the complainant’s account – Corroborating evidence in the form of medical evidence of injuries and eyewitness evidence from a flatmate who saw the complainant running out of the applicant’s bedroom saying that she was going to call the police – No objective evidence which demonstrated that the complainant’s account was untrue or inaccurate – No inconsistencies or discrepancies which would lead to a conclusion that it was not open to the jury to find the accused guilty of the offences charged – Extension of time within which to appeal refused – Application for leave to appeal dismissed
Criminal Code 1983 (NT), s 411(1), s 411(2), s 417(1), s 429(2)
FN v The Queen [2021] NTCCA 5; Foster v The Queen [2021] NTCCA 8
GAX v The Queen [2017] HCA 25; 344 ALR 489; Lynch v The Queen [2020] NTCCA 6; MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348; Pell v The Queen (2020) 268 CLR 123; PW v The Queen [2020] NTCCA 1; SKA v The Queen [2011] HCA 13; 243 CLR 400; Tyrell v The Queen [2019] VSCA 52; Willcocks v The Queen [2021] NTCCA 6, referred to
REPRESENTATION:
Counsel:
Applicant:In person
RespondentD Castor
Solicitors:
Applicant:Self-represented
RespondentOffice of the Director of Public Prosecutions
Judgment category classification: B
Number of pages: 33

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Smith v The King [2022] NTCCA 14
No. CA 11 of 2021 (21933411)

BETWEEN:

JEFFREY ALAN SMITH

Applicant

AND:

THE KING

Respondent

CORAM: KELLY, BARR & BURNS JJ
REASONS FOR JUDGMENT
(Delivered 12 September 2022)
THE COURT:

This is an application for leave to appeal against conviction following a trial by jury, and an application for an extension of time within which to seek leave to appeal.
The trial
On 19 October 2020, the applicant was found guilty by a jury of two offences of gross indecency, charged as counts 4 and 5, and two offences of sexual intercourse without consent, charged as counts 6 and 8. He was found not guilty of the offences of: aggravated assault, charged as count 1; deprivation of liberty, charged as count 2; and two offences of sexual intercourse without consent, charged as counts 3 and 7.
The alleged offending took place on 16 August 2019. The allegations in relation to the counts on which the jury returned guilty verdicts are as follows.
(a)Count 4 alleged that the applicant performed an act of gross indecency on the complainant without her consent, knowing about or being reckless as to the lack of consent. The specific allegation was that the applicant forced the complainant to lick his anus.
(b)Count 5 alleged that the applicant performed an act of gross indecency on the complainant without her consent and knowing about or being reckless as to the lack of consent. The specific allegation was that the applicant forced the complainant to put her right hand inside his anus.
(c)Count 6 alleged that the applicant had sexual intercourse with the complainant without her consent and knowing about or being reckless as to the lack of consent. The specific allegation was that he placed his penis in the complainant’s mouth.
(d)Count 8 alleged that the applicant had sexual intercourse with the complainant without consent and knowing about or being reckless as to the lack of consent. The specific allegation was that he placed his hand into the complainant’s vagina.
The jury found the applicant not guilty of the following offences.
(a)Count 1 was a charge of aggravated assault. The applicant was alleged to have placed his hand around the complainant’s neck without consent while taking her upstairs to his residence in Harriet Place.
(b)Count 2 was the allegation that the applicant deprived the complainant of her personal liberty. Effectively, this was an allegation of a continuation of some of the alleged conduct surrounding count 1, but extending to the bedroom of the applicant’s residence. This was a separate allegation from any deprivation of liberty that may have been inherent in the offending covered by the balance of the counts.
(c)Count 3 was an allegation of sexual intercourse without consent, knowing or being reckless as to the lack of consent. This count related to the first time the complainant alleged the applicant had forced her to have oral sex (ie before the window was broken).
(d)Count 7 was another allegation of sexual intercourse without consent, knowing or being reckless as to the lack of consent. The allegation was that the applicant inserted his penis into the complainant’s vagina and had sexual intercourse without consent.
On 1 December 2020, the applicant was formally convicted of the offences charged as counts 4, 5, 6 and 8, and sentenced to a total effective sentence of imprisonment of eight years, commencing on 7 September 2019. The sentencing Judge fixed a non-parole period of six years and five months.
Proposed appeal against conviction
The proposed ground of appeal, stated by the applicant in his affidavit sworn 17 July 2021, is as follows:
That verdict [is] unreasonable or cannot be supported having regard to whole of evidence – that verdict is a compromised verdict – where prosecution case wholly dependent upon acceptance of truthfullness of complainant’s account – whether unchallenged inconsistant evidence required jury, acting rationally, to have entertained doubt as to applicants guilt. (sic)
The first part of formulation of the proposed ground of appeal is consistent with the words of s 411(1) of the Criminal Code 1983 (NT) (“Criminal Code”), which provides that the Court of Criminal Appeal must allow an appeal if it is of the opinion that the verdict of the jury should be set aside “on the ground that it is unreasonable or cannot be supported having regard to the evidence” (or “that on any other ground there was a miscarriage of justice”).
The time prescribed under s 417(1) of the Criminal Code for giving notice of the application for leave to appeal the guilty verdict is 28 days after the date of the guilty verdict. That time expired in November 2020. The applicant’s documents were filed more than nine months out of time.
On 5 October 2021, a single Judge ordered that the application for an extension of time within which to appeal be refused and that the application for leave to appeal be dismissed. The applicant then exercised his right to have the application determined by this Court.[1]
In the respondent’s affidavit and at the hearing of the application, the respondent did not press any objection to the grant of an extension of time within which to make application for leave to appeal. The applicant is self-represented and is currently serving his sentence at the Darwin Correction Centre. Given those circumstances, the Court determined to hear the applicant’s and respondent’s arguments as to the merits of the appeal in order to determine whether leave should be granted (and, if so, whether the appeal should be allowed).
The evidence at trial
Counsel for the respondent provided a summary of the evidence at trial, from which the following summary is derived.
The applicant and the complainant were known to one another at the time of the offending. They had met in the previous year and, on an earlier occasion in the acquaintanceship, the complainant had accepted $50 to perform oral sex on the applicant at his apartment in Harriet Place, Darwin (“the unit”).[2] The complainant had attended the unit on about six or seven occasions,[3] primarily for the purpose of charging her phone.
No issue was taken at trial with the identity of the offender, the time and location of the offending and the fact that the complainant and the applicant had engaged in numerous acts of sexual intercourse and other sexual interactions. Rather, the applicant contended that the sexual intercourse and other interactions were consensual and that at no time was physical violence used towards the complainant.
Evidence of the complainant
The evidence of the complainant was contained in a recorded statement made on 20 August 2019 and the pre-recorded evidence of the complainant taken on 25 June 2020.
Recorded statement and pre-recorded evidence
The complainant’s evidence was that she had been approached by the applicant on the street near the unit after having an argument with her friend, QR, on the evening of 16 August 2019.[4] After declining to engage in sexual intercourse in exchange for money, the complainant accepted an invitation to go up to the unit so that she could charge her phone.[5]
As the complainant was mounting the stairs to the unit, the applicant grabbed her by the neck and marched her up the stairs.[6] Once the two parties arrived at the unit, the applicant threw the complainant onto the bed before ripping her pants off.[7] At this point, the complainant kicked a nearby window, causing it to break.[8]
The complainant said that after she caused the window to break, the applicant forced her to perform fellatio[9] and demanded that she both lick his anus[10] and insert her fist into his anus.[11] When the complainant refused to insert her fist, the applicant punched her in the head numerous times and then inserted his fist into her vagina.[12]
The applicant then made the complainant perform fellatio again[13] and attempted to have penile-vaginal sexual intercourse, but “that didn’t work out”.[14]
The complainant then heard the applicant’s flatmate outside the bedroom. She grabbed a pair of scissors and ran out of the bedroom[15] in a state of undress.[16]
The complainant then rang QR, who in turn called a third person, RJ, to give the complainant a lift home.[17]
Cross-examination
In cross-examination, the complainant maintained that the applicant had been physically violent towards her on the night in question and that she did not agree to engage in any sexual activity with him at all, whether in consideration for money or otherwise.
Evidence of the applicant’s flatmate (PH)
PH gave evidence that on the evening of 16 August 2019 he saw “a naked Indigenous woman run out [of the applicant’s room], and then up the hall, saying that she was going to call the police”.[18]
PH states that the entire interaction with the woman was “only seconds; three seconds, four seconds”.[19]
Evidence of QR
QR gave evidence that he had met up with the complainant earlier in the evening and that they had had an argument.[20]
QR also gave evidence that the complainant rang him up at about 10 o’clock that night sounding “quite distressed”. She asked him to come and see her.[21]
When he then saw the complainant, QR observed her to look beaten up, with a lip that was bleeding, and with some swelling around the side of her face and eye.[22]
Evidence of RJ
RJ gave evidence that he was in bed when he was called by QR to attend upon the complainant.[23]
RJ recalls driving to the front of Uncle Sam’s,[24] having very limited interaction with the complainant[25] and not recalling any particular injuries to her face.[26]
At the same time, RJ suggested that the complainant “wasn’t the standard [KR] that I find when I meet up with her”,[27] and that she looked like she “had a harder night than I’d seen her have before”.[28]
Evidence of Registered Nurse Anne Flynn
Ms Flynn gave evidence that she conducted an examination of the complainant under the supervision of Dr Annie Whybourne on 19 August 2019. She took notes of the injuries she observed, which included a lineal abrasion to the complainant’s right cheek,[29] and significant bruising to the right eye region.[30] She attempted to do an internal examination of the complainant’s vagina, but was not able to do so because the complainant was “complaining of too much pain and discomfort”.[31]
Evidence of Doctor Whybourne
Dr Whybourne gave evidence that she had supervised an examination of the complainant on 19 August 2019. She also noted a lineal abrasion and bruising to the face of the complainant. Dr Whybourne stated that the complainant complained about pain to her neck,[32] but did not show clinical signs of strangulation.[33] Dr Whybourne explained that, in 50 percent of strangulation cases, no clinical signs of strangulation are seen.[34]
Dr Whybourne also gave evidence that while there was an attempt during the examination to insert a vaginal speculum, the complainant indicated that this was very painful.[35]
Evidence of forensic biologist Kate Cheong-Wing
Ms Cheong-Wing gave evidence that she had analysed buccal swabs taken from the complainant for the presence of the applicant’s DNA. No results of interest were obtained. She agreed with the suggestion of the applicant’s counsel that nothing of substance could be determined from the DNA analysis in the present case.[36]
Evidence of the applicant
The applicant participated in an electronically recorded interview with Police on 6 September 2019 and also gave evidence during the trial.
Electronic Record of Interview (EROI)
In his EROI, the applicant stated that upon meeting the complainant, he indicated that he only had twenty dollars and that was all he could pay to engage in sexual activity with her.[37]
The applicant stated that the complainant agreed to these ‘terms’. He gave the following account of the sexual interaction between himself and the complainant:
It would only have been fingers and most of me hand in her pussy and fingers in her bum. Oh, and sorry — and she give me — ah — oral sex. So I would have — penis in her mouth. There might have been a few tongues going places too.[38]
The applicant subsequently clarified that by “tongues going places” he meant “orally and anally”.[39]
The applicant added that he had requested that the complainant insert a cucumber into his anus and that the complainant complied with this request.
The applicant denied having penile-vaginal sexual intercourse with the complainant[40] and that there was “never nothing non-consensual” with her.[41]
The applicant also denied that he put his hands around the neck of the complainant as they were going up the stairs to the unit.[42]
Applicant’s evidence at trial
The applicant said in evidence that he and the complainant had engaged in sex for money more than half a dozen times in the year leading up to the offending[43] and that this was the primary reason she would be invited up to the unit.[44]
The applicant further denied choking the complainant[45] or doing anything non-consensual.[46]
In cross-examination, the applicant denied assaulting the complainant.[47] He said that the sexual activity in which she engaged was “her choice”.[48]
The applicant also denied that he engaged in penile-vaginal sex with the complainant or that he had ever done so.[49]
The applicant further denied that the complainant had left the unit with any marks on her face.[50]
Principles
A person found guilty on indictment may appeal to this Court with the leave of the Court, or upon the certificate of the judge of the Court of trial that it is a fit case for appeal, against the finding of guilt on any ground of appeal that involves a question of fact alone or question of mixed law and fact.[51]
On any such appeal against a finding of guilt the Court is to allow the appeal if it is of the opinion that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence;[52] subject to the proviso in s 411(2) that the Court may, notwithstanding that it is of the opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
The principles to be applied in appeals of this nature are well established and set out by this Court in PW v The Queen[53] in the following terms (citations omitted):
In M v The Queen, Mason CJ, Deane, Dawson and Toohey JJ said that the test for an unsafe or unsatisfactory verdict was whether the court thought that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. The majority emphasised, however, that it was not the function of the court to answer that question merely by examining the transcript of evidence and the exhibits. Their Honours said that:
“… in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.”
The plurality explained the application of the test as follows:
“In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks “credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.”
Gaudron J agreed with the majority formulation of the test, as did Brennan J, although Brennan J said that the question as to whether it was “open to the jury” to be satisfied of guilt beyond reasonable doubt was to be resolved by asking whether the jury was “upon the whole of the evidence ... bound to have a reasonable doubt” or whether “the jury, acting reasonably, must have entertained a reasonable doubt as to the guilt of the accused”.
In Libke v The Queen, Hayne J (citing the passage from the majority judgment in M v The Queen referred to above) said:
But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.[54]
In Pell v The Queen, the High Court confirmed that the statement from Libke v The Queen[55] extracted above was consistent with what was said by the majority in M v The Queen,[56] and does not impose any stricter test.[57]
Inconsistent verdicts

A guilty verdict may be challenged as “unsafe and unsatisfactory” on the basis that it is inconsistent with a not guilty verdict in the same trial. That is the basis of the challenge to the verdict on count 6 on this appeal. In MacKenzie v The Queen,[58] the majority set out the following (relevant) principles with respect to appeals on the ground of inconsistent verdicts.
From a review of the cases, a number of general propositions can be stated:
…
3.    Where, as is ordinarily the case, the inconsistency arises in the jury verdicts upon different counts of the originating process in a criminal trial, the test is one of logic and reasonableness. A judgment of Devlin J in R v Stone is often cited as expressing the test:
He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand.
4.    Nevertheless, the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense. Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury. In a criminal appeal, the view may be taken that the jury simply followed the judge's instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt. Alternatively, the appellate court may conclude that the jury took a “merciful” view of the facts upon one count: a function which has always been open to, and often exercised by, juries. The early history of New South Wales was affected by English juries which, in the face of clear evidence, declined to find the value of goods stolen sufficient to attract the punishment of death, thereby affording to the offender the alternative punishment of transportation. Australian decisions have acknowledged that the role of the jury continues to be ameliorative in this respect. In R v Kirkman, in the Supreme Court of South Australia, King CJ (with the concurrence of Olsson and O’Loughlin JJ) observed:
[J]uries cannot always be expected to act in accordance with strictly logical considerations and in accordance with the strict principles of the law which are explained to them, and courts, I think, must be very cautious about setting aside verdicts which are adequately supported by the evidence simply because a judge might find it difficult to reconcile them with the verdicts which had been reached by the jury with respect to other charges. Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law. Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number. This may not be logically justifiable in the eyes of a judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries. Appellate courts therefore should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty.
We agree with these practical and sensible remarks.
5.    Nevertheless, a residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury’s duty. More commonly, it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law. It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside. It is impossible to state hard and fast rules. “It all depends upon the facts of the case”.
6.    The obligation to establish inconsistency of verdicts rests upon the person making the submission. ….
[emphasis by underlining added]
Applicant’s arguments on application for leave to appeal
In oral submissions, the applicant addressed the Court in relation to the jury’s verdict of guilty on count 6 (forced fellatio as described in [4](c) above). With reference to the evidence of the complainant, he argued that there was no evidence or insufficient evidence to support count 6, and that the jury’s verdict of guilty on count 6 was inconsistent with the jury’s verdict of not guilty on count 3.
In her recorded statement made to investigating police on 20 August 2019, the complainant made the following statements:
When I – when I first – when we first got in there he made me, um, he made me give him oral sex, you know, and then all that happened and then he made me give him oral sex again.[59]
Later in the interview, the complainant gave the following details:
Like as I said before, I think, um, the first thing he got me to do was to give him a head job.
…
And he goes he made me suck his dick and that was [not] getting anywhere, like he wasn’t getting hard, it wasn’t turning him on or whatever.
…
He – he had – he grabbed me by the hair and fuckin’ like directing my head towards his like groin area and told me like “suck my dick”.[60]
At a later point in the interview, after describing some of the aberrant sexual activities in which she was forced by the applicant to engage, the complainant said that her mind went blank. At that point, the interviewing police officer said to her:
Yeah. It was in – it was – when you first got there he’s made you have oral sex with him and after you’ve broken the window he’s made you have oral sex with him again and then you’ve laid there when – this was in relation to drinking – having a drink of water and you’ve looked at the bottles.[61]
One of the events which happened in the applicant’s bedroom was the breaking of a window. The complainant and applicant gave different explanations as to how that happened. She told the police that she kicked the window. In her cross-examination she said, “… like kicked and banged against it and broke it”.[62] The applicant claimed that he had been standing against the window with his back to the complainant, and when he turned around to enable her to give him oral sex his feet got tangled in the complainant’s legs causing him to fall against the window and break it.[63] In his recorded police interview, the applicant claimed that the complainant had been penetrating him with a lubricated cucumber and also spanking him, but that he did not ejaculate. He said he then invited the complainant to have oral sex. We set out this extract from his recorded interview:
POLICE
OFFICER: No, I want you --- to tell me how you say it …
APPLICANT: Alright, “Come on darlin’, suck me, suck my cock, come on bubby”. Anyway she’s swung around somehow and my fucken leg got caught up in her legs and I headed for the window. Fuck me dead, and I nearly went through it. Anyway that’s all finished within about 30 seconds … “Don’t worry about it, lay back down on the bed”, and I – and she’s sucking me off and she’s still fingering my arse, no worries and she’s got her head down that way so she’s – nothing up on my body so to speak, alright, and I grab her by the shoulders and bring her up, “come on, bub, my turn to have a play around with you”.
In his cross-examination, the accused described the incident in these terms:
… So she took the cucumber out and as I turned around I just tripped on her, I got caught up in her and I went that way towards the window … and I hit the window with my shoulder.[64]
The sequence of events in the unit, taken from the complainant’s evidence was: forced oral sex when she arrived there (count 3), then a series of perverse forced sexual activities (counts 4 and 5), then the breaking of the window, non-consensual intercourse by the applicant inserting his hand into the complainant’s vagina (count 8), and then a further episode of non-consensual oral sex (count 6) followed by non-consensual penile vaginal intercourse (count 7).
The applicant contends that the complainant’s evidence was insufficient to support count 6. That contention cannot be accepted. The complainant’s evidence in relation to count 6 is set out at [52] and [53] above. That evidence is supplemented by the applicant’s own description to police of the oral sex engaged in with the complainant immediately before and immediately after the breaking of the window. See [55] above. When those matters are taken into account, there was clearly sufficient evidence to support count 6. The applicant also contends that the jury’s guilty verdict on count 6 was inconsistent with the not guilty verdict on count 3. That contention, likewise, cannot be accepted for the reasons which follow.
The trial judge’s findings on sentencing the applicant
We consider that it is appropriate for us to take into account the trial judge’s analysis of the possible bases for the jury’s separate verdicts. Her Honour’s function was to make factual findings consistent with the jury’s verdicts, and so consideration of the separate verdicts - and the basis for possible inconsistencies between them - was an important aspect of that function. Her Honour was, of course, immersed in the facts and evidence led at trial. Although we have a different role to the trial judge in relation to this aspect of the appeal, we are greatly helped by her Honour’s analysis. Indeed, we have reached the conclusion that the jury’s verdicts can be logically reconciled in the manner explained by the trial judge when finding the relevant facts for sentencing purposes.
In sentencing the applicant following the delivery of the jury’s verdicts, the trial judge made reference to the different verdicts and said:
There was a clear path open to the jury to reason the way that it has in terms of coming to different conclusions on the different counts. The jury were told that it was within their province to reject some parts of a witness’s evidence and accept other parts of the same witness’s testimony. The jury, of course, was also told that in respect of any one particular count, that to find a particular count proven, that count must be proven beyond reasonable doubt.
Her Honour went on to give the following explanations explaining that there was no inconsistency between the not guilty verdicts on counts 1, 2, 3 and 7 and the guilty verdicts on counts 4, 5, 6 and 8.
In relation to the not guilty verdicts on counts 1 and 2, the trial judge referred to evidence by the complainant that she and the applicant were known to each other before the offending and that, on a previous occasion, she had engaged in oral sex with the applicant for $50.
The trial judge found that, following an argument between the complainant and her friend QR, the complainant and the applicant had a conversation in which either the applicant asked the complainant, “What’s the matter?” and invited her up upstairs, or she asked to go upstairs to charge her phone, something she had done a number of times before. The trial judge also found it likely that there was some discussion about having sex, and it is likely that the applicant initiated that discussion and made an offer to her for her to participate in sexual activity for money, namely, for around $20 or $25.
In relation to count 1, the trial judge said that in light of those matters, it was open to the jury to determine they could not find beyond reasonable doubt that when the complainant went up the stairs with the applicant to his apartment the applicant applied force to the victim in the way that she had described, with his hands around her neck. Her Honour pointed out that there was doubt about the complainant’s description of how she got up the stairs and that she had consumed methamphetamine the day before this incident and had consumed cannabis and methadone on the day. There was also no objective evidence of symptoms of strangulation.
Whether the motivation for the complainant going to the applicant’s apartment, was to charge her phone or for some form of sexual activity for the small payment offered, the trial judge found, for sentencing purposes, that the complainant was personally motivated to go to the applicant’s apartment with him, and he did not forcibly take her to the apartment, consistent with the not guilty verdicts on counts 1 and 2.
Consistent with the jury’s finding of not guilty on count 2 (the deprivation of liberty charge) the trial judge found that when she was first in the applicant’s apartment, the jury were not satisfied that the complainant was there against her will.
Count 3 was the allegation of the first occasion of oral sex, on which the applicant was found not guilty. The trial judge noted that this was consistent with the jury being unable to rule out the possibility that the complainant may have agreed to give oral sex for money or participate in some form of sexual activity for money.
Her Honour stated that the not guilty verdict on count 3 and the guilty verdicts on counts 4 and 5 (the gross indecency charges) were consistent with the jury finding that the complainant went to the applicant’s unit to charge her phone and also to engage in some sexual activity but no more than giving the applicant oral sex in exchange for money as she had previously. Her Honour referred to the complainant’s evidence that she does not engage in “kinky sex” and that she made that fact clear to the applicant.
In relation to count 7 (penile vaginal intercourse without consent), on which the applicant was acquitted the trial judge said:
It is obvious why this charge resulted in an acquittal. The complainant said in her pre-recorded evidence-in-chief that he put his penis into her vagina but it did not work out, as his penis went soft again. In cross-examination, after she was asked if they had that form of sexual intercourse, she said she could not remember now. I take that to mean she could not remember now, as in when she was in the witness box. She said she was tired, then she said she was pretty sure they did not engage in that form of sexual intercourse. She agreed with the proposition that she had never had penis-vaginal sex with Jeffrey Smith. That evidence clearly raised a reasonable doubt.
In relation to count 4, the trial judge found that after the consensual oral sexual intercourse (count 3), the applicant forced the victim to engage in an act of gross indecency: he pushed her to the side and told her to lick his arse, and she said no. Her Honour referred to the complainant’s detailed description of the applicant’s anus, and her evidence was that she was “freaking out”, but that the applicant said to her, “If you don’t do as you’re told, I’m going to have to tie you up and keep you all night.” This was not consensual; the complainant complied as a result of the threat to tie her up and keep her in the apartment all night. The complainant denied that this activity, anus licking, was part of any regular sexual practice between her and the applicant. Her Honour said that this sexual activity clearly constituted gross indecency, and that the complainant was clearly disgusted at being coerced into performing it.
The trial judge referred to the complainant’s evidence in relation to count 5, namely that after the activity constituting count 4, the applicant forced the complainant to put her right hand inside his anus and demanded that she “fist” him. Her Honour said that during the activities constituting counts 4 and 5, the applicant’s demeanour was menacing; he was alternating between saying he really cared about the complainant and saying that he would not let her go, at least until the next day. He also punched her in the head a number of times.
Her Honour said that the complainant’s descriptions of the counts relating to acts of gross indecency (counts 4 and 5) were detailed and revealing and noted that the jury had accepted that evidence on those counts.
In relation to count 6, consistent with the jury’s verdict, the trial judge found that either after the incidents of gross indecency or after the window was broken, the applicant forced the complainant to perform oral sex on him. Her Honour said that, unlike the first occasion of oral sex, it was obvious to the jury that on this occasion, she did not consent.
In relation to count 8 (a further charge of sexual intercourse without consent) on which the applicant was found guilty, the trial judge found that the applicant had sexual intercourse with the victim without her consent by placing his hand into her vagina and she suffered pain in her vagina as a result. This took place after the complainant failed (in the view of the applicant) to “fist” him properly, and was preceded by him punching her in the head a number of times.
The trial judge also referred to the evidence of PH, which she accepted, that the complainant then ran out of the room, naked, saying she was going to call police and that the applicant said words to the effect of, “Nobody made you do it.”
The trial judge said, correctly, that it does not follow from the not guilty verdicts on counts 1, 2, 3 and 7 that the jury were required to or did reject the totality of the victim’s testimony. Her Honour said:
It does not logically follow that the complainant’s evidence should not be accepted on the other counts. It must also be remembered the jury were directed that if they returned a verdict of not guilty in respect of any one count, they were to take that verdict into account in terms of their assessment of the evidence going to other counts.
Analysis and conclusion
The learned trial judge was correct in her analysis of the jury’s verdicts and in holding (for sentencing purposes) that there was no inconsistency between the not guilty verdicts on counts 1, 2, 3 and 7 and the guilty verdicts on counts 4, 5, 6 and 8. Relevantly to this appeal, we respectfully adopt the trial judge’s reasoning that there was no inconsistency between the not guilty verdict on count 3 and the guilty verdict on count 6. It was plainly open to the jury not to be satisfied beyond reasonable doubt that the first act of oral sex was non-consensual, given the reasonable possibility that consent was induced by a promise of payment of a small sum of money, but to be satisfied beyond reasonable doubt that after that, the applicant used threats to force compliance from the complainant to grossly indecent acts which disgusted her, subjected her to violence, and then forced her to perform oral sex on him again. Though it is possible that the complainant initially agreed to have sex with the applicant for money, it is hardly surprising that the jury was satisfied beyond reasonable doubt that, after being forced to participate in depraved and disgusting activities, and then punched in the head, the complainant did not consent to doing so again.

In support of his application for leave to appeal, the applicant also argued that the Crown case against him depended solely on the evidence of the complainant, and made submissions to the effect that the complainant’s evidence contained inconsistencies and was contradicted by unchallenged inconsistent evidence which required the jury, acting rationally, to have entertained a doubt as to the applicant’s guilt.
This contention too, must be rejected. First, the Crown case against the applicant did not depend solely on the jury accepting the truthfulness of the complainant’s account. There was corroborating evidence in the form of medical evidence of injuries to the complainant, and further eyewitness evidence from the flatmate, PH, who saw a naked woman come running out of the applicant’s bedroom saying that she was going to call the police. One of the supposed inconsistencies in the complainant’s evidence relied on by the applicant to contend that her evidence was unreliable was that she misidentified the man she spoke to as she came running, naked, out of the applicant’s bedroom. The applicant’s flatmate, PH gave evidence that he was the one who saw her: the complainant identified the man she spoke to as someone else.
That proposition need only be stated to be rejected. The fact that the complainant may have been mistaken about the identity of the person she saw in those circumstances does not cast doubt on the reliability of her evidence. There is no doubt that she did come running out the applicant’s bedroom in that condition saying she was going to call the police and that she was seen by the flatmate to do so. It can hardly be supposed that more than one naked woman came running out the applicant’s bedroom that night threatening to call the police.
Another alleged inconsistency in the complainant’s evidence relied on by the applicant is that in the pre-recorded evidence the complainant said that the applicant had punched her in the head numerous times, and that she had lumps on the back of her head and a sore head. The applicant contended that this was unreliable because the complainant did not complain about these matters to Nurse Flynn or Dr Whybourne.[65] The applicant contended that this showed the complainant was lying, or at least exaggerating. The applicant made the same point in relation to the alleged lack of broken bones or defensive injuries. The applicant submitted that the evidence of the complainant’s injuries was not consistent with her evidence of having been punched multiple times.[66]
This contention cannot be accepted. First, there was evidence of injuries to the complainant that evening which the jury was entitled to take into account as supporting the complainant’s evidence of having been punched in the head a number of times by the applicant. Dr Whybourne said that her injuries included bruising around the eye sockets consistent with having been punched in the face.[67] The complainant’s friend, QT, who saw her that evening after the events in question occurred, observed that the complainant had a black eye and a bleeding lip. The applicant relied on the fact that the other friend, RJ, made no such observations, but even he said, in effect, that she was not her normal self that evening.
Second, it was a matter for the jury to assess the honesty and reliability of the complainant’s evidence taking these and other matters into account. It is not correct to say that there was objective evidence which demonstrated that the complainant’s account was untrue or inaccurate.
Another matter relied on by the applicant to contend that the complainant’s evidence in relation to counts 4 and 5 (the acts of gross indecency) was implausible was that he was said to have been in a vulnerable position on all fours when these acts occurred, and he queried why she did not grab his testicles and “reef them” or pick up the scissors and stab him. I do not think the evidence of the vulnerability of the applicant’s position was as unequivocal as contended by the applicant, but even if it was, the jury had the complainant’s evidence of the threats and violence inflicted upon the complainant and were entitled to conclude, beyond reasonable doubt, that the complainant complied with the applicant’s demands out of fear. It was a matter for them.
None of the applicant’s criticisms of the complainant’s evidence disclose inconsistencies or discrepancies of a kind which would lead, on a review of the whole of the evidence, to a conclusion that it was not open to the jury to find the accused guilty of the offences charged in counts 4, 5, 6 and 8.
The proposed appeal cannot succeed. An extension of time within which to appeal should be refused and the application for leave to appeal dismissed.
ORDERS:
(a) An extension of time within which to appeal is refused.
(b) The application for leave to appeal is dismissed.

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[1] Criminal Code, s 429(2).

[2]AB 53.8 – 54.3.

[3]AB 51.9.

[4]AB13.6-13.6.

[5] AB 18.3-18.8.

[6]AB 6.6.

[7] AB 7.2-7.6.

[8] AB 7.6-7.8.

[9] AB 37.6-37.7.

[10] AB 41.2-42.

[11]AB 42.4-43.4.

[12] AB 45.3-45.8.

[13]AB 10.1.

[14] AB 49.7-49.8.

[15] AB 47.8-47.9.

[16]AB 52.2.

[17] AB 55.3-55.7.

[18] AB 211.2.

[19]AB 212.6.

[20] AB 220.6-220.9.

[21] AB 221.5.

[22] AB 221.8.

[23] AB 228.9.

[24] AB 231.9.

[25]AB 229.9.

[26] AB 232.8.

[27] AB 230.1.

[28] AB 232.8.

[29] AB 244.3.

[30]AB 244.6.

[31] AB 244.9.

[32] AB 260.8.

[33] AB 260.1.

[34] AB 260.7.

[35] AB 261.6-261.7.

[36] AB 249.5.

[37] AB 120.7. At various points later in the EROI and by the time of the trial, this became $25.00.

[38]AB 123.9-124.1.

[39] AB 124.2.

[40] AB 117.7.

[41]AB 120.2.

[42] AB 167.5.

[43] AB 272.3.

[44] AB 272.9.

[45] AB 273.1.

[46] AB 273.3.

[47] AB 292.6.

[48] AB 292.5.

[49] AB 294.5.

[50] AB 290.5.

[51] Criminal Code, s 410

[52] Criminal Code, s 411(1)

[53] [2020] NTCCA 1 at [107].

[54] PW v The Queen [2020] NTCCA 1, [107]-[108] per Kelly J and Riley AJ. See also SKA v The Queen [2011] HCA 13; 243 CLR 400, [11]-[14]; GAX v The Queen [2017] HCA 25; 344 ALR 489, [25]; Lynch v The Queen [2020] NTCCA 6; FN v The Queen [2021] NTCCA 5; Willcocks v The Queen [2021] NTCCA 6; Foster v The Queen [2021] NTCCA 8 at [2] and [3].

[55] [2007] HCA 30; (2007) 230 CLR 559 at 596-597 para [113]; See also R v Baden-Clay (2016) 258 CLR 308 at 329 [65].

[56] [1994] HCA 63; (1994) 181 CLR 487.

[57]Pell v The Queen (2020) 268 CLR 123, [44]-[45]. See also Tyrell v The Queen [2019] VSCA 52 at [70].

[58] [1996] HCA 35; (1996) 190 CLR 348 at 366-368.

[59] AB 10.1.

[60] AB 37.2-37.5.

[61] AB 49.5.

[62] AB 87.7.

[63]AB 89.3.

[64] AB 285.3

[65] AB 45-46; Transcript of Appeal hearing 28 March 2022 pp 10-11, 14.

[66] Transcript of Appeal hearing 28 March 2022 pp 15-17.

[67] AB 264; Transcript of Appeal hearing 28 March 2022 p 13; The applicant construed the complainant’s evidence as being that she had been punched between 20 and 28 times (ie five to seven episodes of punching times four punches each). Counsel for the respondent took the Court to the evidence of the complainant which appeared to be that she had been punched in the face around five or six times with the estimate of number of punches ranging between four and seven. Which interpretation of the evidence is correct does not affect the outcome of this application.

[2022] NTCCA 14

12 September 2022

Key Legal Topics

Areas of Law

Criminal Law

Evidence

Statutory Interpretation

Legal Concepts

Appeal

Consent

Charge

Sentencing