Stevens v The Queen

[2018] ACTCA 7

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

Stevens v The Queen

Citation:

[2018] ACTCA 7

Hearing Date:

21 February 2018

DecisionDate:

21 February 2018

Before:

Murrell CJ, Burns and Bromwich JJ

Decision:

The appellant is refused leave to appeal on ground (b).

The appeal against conviction is dismissed.

Catchwords:

APPEAL – GENERAL PRINCIPLES – Appeal against conviction – whether verdict is unreasonable or cannot be supported having regard to the evidence

APPEAL – GENERAL PRINCIPLES – Directions to the Jury – Appeal from conviction – Application under r 5531 of the Courts Procedures Rules 2006 (ACT)

Legislation Cited:

Evidence (Miscellaneous Provisions) Act 1991 (ACT) ss 72, 73

Court Procedures Rules 2006 (ACT) r 5531

Criminal Appeal Rules (NSW) r 4

Cases Cited:

Cruz v R [2017] ACTCA 48

Libke v The Queen [2007] HCA 30; 230 CLR 559
M v The Queen (1994) 181 CLR 487
Munro v The Queen [2014] ACTCA 11

Wyper v The Queen [2017] ACTCA 59

Parties:

Craig Joseph Stevens (Appellant)

The Queen (Respondent)

Representation:

Counsel

Mr R Livingstone  (Appellant)

Ms M Jones  (Respondent)

Solicitors

Legal Aid ACT (Appellant)

ACT Director of Public Prosecutions (Respondent)

File Number:

ACTCA 32 of 2017

Decision under appeal: 

Court/Tribunal:             Supreme Court of the ACT

Before:  Mossop J

Date of Decision:         3 March 2017

Case Title:  R v Stevens

Court File Number:       SCC 69 of 2016

MURRELL CJ:

1. For the reasons given by Bromwich J, I consider that the application for leave to raise ground (b) should be refused, that ground (a) must fail and that the appeal should be dismissed.

I certify that the preceding one [1] numbered paragraph is a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell.

Associate:

Date: 15 March 2018

BURNS J:

1. I agree with the reasons given by Bromwich J and with the orders proposed by his Honour and the Chief Justice.

I certify that the preceding one [1] numbered paragraph are a true copy of the Reasons for Judgment of his Honour Justice Burns.

Associate:

Date: 15 March 2018

BROMWICH J:

1. On 3 March 2017, the appellant was found guilty by a jury of four counts of sexual intercourse without consent.  The conduct upon which the convictions were based occurred on three separate days in May and June 2015. 

1. On 24 July 2017, the appellant was sentenced to a total of five years and eight months’ imprisonment, with a non-parole period of three years and four months’ imprisonment set to commence on 13 January 2017. 

1. The appellant appealed against all four convictions, advancing two grounds of appeal.  Ground (a) was that the verdict on count 2 was unreasonable having regard to the evidence.  Ground (b) was that, in relation to count 1 and, collaterally, counts 2, 3 and 4, the trial judge had failed to give the jury an adequate direction about recklessness as to lack of consent. 

1. The appellant abandoned a claim that the sentences were manifestly excessive.

1. As to the claim of failure to give an adequate direction about recklessness, no issue was taken by the appellant at the trial with any direction. The direction complained of was one sought by the appellant over objection by the Crown. On appeal, the appellant’s complaint was directed to the precise language used by the trial judge. Consequently, r 5531 of the Court Procedures Rules 2006 (ACT) applied, such that the appellant required leave to raise this ground on appeal.

1. At the hearing of the appeal, the Court refused leave to the appellant to raise ground (b) and dismissed the appeal on the basis that ground (a) must fail.  The Court’s ex tempore reasons, as revised from transcript, were as follows.

Ground (b) – application for leave under r 5531(a) of the Court Procedures Rules

1. In recognition of the fact that the direction challenged by way of ground (b) was not objected to at the trial, counsel for the appellant sought leave at the hearing of the appeal to file and call out of time an application in proceedings that leave be granted to the appellant under r 5531(a) of the Court Procedures Rules to raise that ground.  Leave to file that application in court was given.

1. That application was refused for the following reasons. 

1. The particular direction of the trial judge complained of appears in the trial transcript at page 291, reproduced at page 80 of the appeal book. It was addressed in terms that the jury consider the possibility that there had been a reasonable mistake of fact by the appellant as to the complainant’s consent. That particular wording was perhaps unfortunate. But it must be observed that the direction arose from debate during the trial by which counsel then appearing for the appellant, who is different from counsel appearing on the appeal, sought a direction dealing with the state of mind of the appellant. The debate apparently took place by reference to the terms of s 73 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT).

1. Section 73 provides as follows:

73Directions about mistaken belief about consent

In a sexual offence proceeding, the judge must, in a relevant case, direct the jury that, in deciding whether the accused person was under a mistaken belief that a person consented to a sexual act, the jury may consider whether the belief was reasonable in the circumstances.

1. The Crown objected to the direction being given upon the basis that it had not been established that the proceeding constituted a “relevant case” for the purposes of s 73. In this regard, it was submitted that there was no positive evidence of the appellant having held a mistaken belief that the complainant was in fact consenting to the sexual acts in question. Although directed to the acts referred to in all four counts in the indictment, this argument was pursued largely in relation to count 1.

1. Given those circumstances, it is not surprising that his Honour’s direction was apparently guided, at least in part, by s 73. However, in a departure from the way in which s 73 is phrased, the direction was not cast in terms that the jury “may” consider whether the belief was reasonable in the circumstances, but, rather, that the jury “had” to have regard to whether the belief was reasonable in the circumstances.  That was manifested by words in the passage complained of that any unreasonable belief that the accused might have had as to whether or not the complainant consented “has to be disregarded”, and a number of other like references.

1. The direction was sought in circumstances in which the relevant incident had occurred in the course of what was initially consensual sexual activity.  Relevantly, the appellant had taken the extra step of proceeding to engage in penile-anal intercourse, in circumstances in which the complainant had previously made clear to him that that was a “no go” area because of a previous injury she had sustained.  When the complainant reacted to him doing this, he stated at the time that he had forgotten, which was the basis for the belief asserted on his behalf that she was consenting.  In those circumstances, it is not surprising that the counsel then appearing for the appellant took the view that only a reasonable belief was likely to be one that would find favour with the jury.

1. The debate about the direction was initially raised by the Crown prosecutor after the trial judge’s summing up and directions had been given.  The Crown prosecutor, who appeared as junior counsel in the appeal, raised the question of the sufficiency of the direction in relation to recklessness as it was cast, and, in particular, the fact that his Honour had not equated that across to each of the individual counts in the indictment.  No objection, however, was raised on the appellant’s behalf.  Trial counsel then appearing for the appellant said at one point that “[w]e have nothing to raise and we don’t ask that your Honour redirect on those topics”; at a second point that “I’m happy to consent on behalf of the defence and say that our view is that your Honour’s directions were sufficient”; and at a third point that “[w]e are -- content with your Honour’s summing up as it is.”

1. In those circumstances, it is important to have regard to the way in which r 5531 is intended to operate. In the decision of this Court in Munro v The Queen [2014] ACTCA 11, delivered on 24 April 2014, the Court said the following at [128]:

Some aspects of the appeal against the appellant’s conviction bear the hallmarks of what has been referred to as an “armchair appeal” in the Court of Criminal Appeal in New South Wales, that is, where counsel not involved in the trial “has sat down and gone through the whole of the transcript and the summing up looking for error, without reference to the manner in which the trial was conducted”

1. The balance of that paragraph refers to several New South Wales authorities and the terms of r 4 of the Criminal Appeal Rules (NSW), which are relevantly the same as those in r 5531. Rule 5531 was then reproduced at [129]. And at [130], the Court said:

In the present proceeding, there was no application made under r 5531 with respect to those grounds the appellant now seeks to agitate, which were not the subject of an objection at the trial. Appellants should not consider the provisions of r 5531 to be a formality which may be neglected. It is at the heart of the adversarial system that an accused chooses the manner in which his or her defence to criminal charges is conducted. Almost inevitably, this means that forensic decisions must be made on issues that arise in the course of the trial, such as objections to evidence or an objection to a direction given by the trial judge. The person best placed to make such an objection, by reason of familiarity with the basis on which the defence is being conducted and the atmosphere of the trial, is counsel for the accused. Where no such objection is taken, this Court is entitled to infer that counsel saw no unfairness or injustice in what was done.

1. As has already been observed, this is not a case in which no leave was sought.  Counsel now appearing on the appeal for the appellant did seek that leave, albeit late in the day, as he frankly and properly conceded. 

1. Nonetheless, the rest of the observations in the paragraph quoted above appear apposite to the present circumstances. It is clear that a deliberate forensic decision was taken and it is proper to infer that counsel then appearing saw no unfairness or injustice in what was done. Accordingly, it is difficult to see that there is any basis for saying that there has been any miscarriage of justice. Indeed, the observation may be made that it would have been very difficult for the jury to have any regard to an unreasonable belief in the circumstances. It follows that although the strict terms of s 73 may have been departed from, they were not departed from in a way that was abstracted from the reality of the trial and no injustice has been occasioned.

1. For all those reasons, I am not satisfied that the appellant should have leave to raise this ground of appeal.

Ground (a) – Evidence in the prosecution case relevant to count 2

1. The appellant met the complainant in May 2015 via an on-line dating site.  On 31 May 2015, the appellant engaged in fellatio with the complainant.  Neither the complainant nor the appellant was intoxicated.  The complainant said that she was wary of the appellant because of the earlier incident (being the conduct of count 1), in which the appellant had moved from consensual activity to anal intercourse, which the complainant had previously ruled out. 

1. The complainant’s evidence in relation to the incident referred to in count 2 was that she wanted to avoid a confrontation.  Her evidence was that she suffered from anxiety and was inclined to be submissive.  Consequently, the complainant did not verbally convey to the appellant that she was unwilling but, rather, as she said in cross-examination, she “[j]ust did what he wanted,” and what she “needed to do.” 

1. The Crown case did not rely upon any lack of consent being explicitly conveyed to the appellant at the outset, but, rather, that withdrawal of consent was overtly communicated at the time by the complainant’s actions and reactions rather than her words. Relevantly, s 72 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) required that a trial judge must, in a relevant case, direct a jury that a person is not to be regarded as consenting to a sexual act just because they did not say or do anything to indicate absence of consent, did not protest, did not sustain a physical injury or had previously consented to sexual activity with the accused or someone else.

1. The relevant evidence-in-chief of the complainant may be summarised as follows.  The appellant took the complainant’s head in both hands and held it to his crotch.  She commenced to fellate him, with him having one hand behind her head.  Her unchallenged evidence included that she was crying, that she tried to pull her head away and that he put both hands on the back of her head to hold her head down.  Her evidence was that once he had his hands in that position she started gagging, choking on her phlegm.  She said that he “just forced, he kept his hand on my head”.  She said that she was unable to speak because his penis was in her mouth.  Her evidence was that this then continued for a few minutes until he ejaculated. 

1. The complainant described her conduct as being otherwise submissive, apart from giving him what she described as a little bite on the penis.  This bite was said to be in the nature of putting pressure in an attempt to give him the impression that she did not want to do it rather than saying that.  She described his reaction to that action as giving her an “open hand smack on the back of the head” warning her not to bite. 

1. There was no direct cross-examination on the detail of the complainant’s evidence summarised above.  Rather, the focus was on her initial consent, on her lack of verbal objection, on her submissive, perhaps somewhat catatonic state, her continuing with the fellatio to ejaculation and on the lack of complaint in the next few days.  She effectively acceded to questions to the effect that there was more she could have done to stop the sexual encounter continuing.

1. In addition to the complainant’s evidence-in-chief, there was also evidence of the complainant having complained about the incident to her friend, Lisa, and to her mother. 

1. In re-examination, the complainant was taken to her evidence in cross-examination about whether or not she had removed her head from the appellant’s penis.  She said that both his hands were at the back of her head and that he was holding her head down with force, which was why she had bitten him instead. 

1. In his sentencing remarks, the trial judge found that from the point at which the complainant intended to pull away or bit the appellant’s penis, whichever occurred earlier, the appellant knew that she did not consent to a continuation of the sexual encounter. 

1. On appeal, the substance of the case for the appellant was that sufficient doubt was raised by the totality of the evidence, such that this Court should also entertain a doubt that the guilt of the appellant was established beyond reasonable doubt.

1. In M v The Queen (1994) 181 CLR 487, it was stated by four justices of the High Court at 493:

Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.  But 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.

(citations omitted)

1. In Libke v The Queen [2007] HCA 30; 230 CLR 559 at [113], the majority said:

It is clear that the evidence that was adduced at the trial did not all point to the appellant’s guilt on this first count. 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. In the present case, the critical question for the jury was what assessment they made of the whole of the evidence that the complainant and the appellant gave that was relevant to the issue of consent to the digital penetration that had occurred in the park. That evidence did not require the conclusion that the jury should necessarily have entertained a doubt about the appellant’s guilt.

(citations omitted)

1. In Wyper v The Queen [2017] ACTCA 59 it was said at [51]–[52]:

51When considering whether it was “open” to a jury to convict, an appellate court must be careful, as was emphasised in R v Baden-Clay [2016] HCA 35; 258 CLR 308 at [65]–[66]:

[65] It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is “the constitutional tribunal for deciding issues of fact.” Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury’s verdict on the ground that it is “unreasonable” within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial…

[66] With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury.  Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court “must always be whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”.

(footnotes omitted)

52At [38] of Cruz v R [2017] ACTCA 48, this Court said:

… A key qualification to that ordinary basis for finding that a jury ought to have shared the appeal court’s doubts is when the advantage that the jury enjoyed in seeing and hearing the evidence at trial would have been such as to overcome the appeal court’s doubt. …

1. Having carefully read the key passages in the complainant’s evidence and having perused the balance of the evidence, far from entertaining any doubt about the jury’s guilty verdict, I am entirely satisfied that the verdict was well and truly open on the evidence.  The complainant’s evidence of what she did was ample to convey a lack of consent to the continuation of the fellatio.  The unchallenged specific evidence of the complainant was that the appellant effectively forced her to continue, or at least physically constrained her overt resistance to that continuation. 

1. It follows that this ground of appeal should fail and that the appeal should therefore be dismissed.

I certify that the preceding thirty-four [34] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Bromwich.

Associate:

Date: 15 March 2018