Still v R

[2010] NSWCCA 131

New South Wales
Court of Criminal Appeal

CITATION:	Still v R [2010] NSWCCA 131
HEARING DATE(S):	3 May 2010
JUDGMENT DATE:	23 June 2010
JUDGMENT OF:	Basten JA at 1; Johnson J at 2; Rothman J at 96
DECISION:	Leave to appeal granted in relation to Grounds 1, 2 and 4. Appeal against conviction dismissed.
CATCHWORDS:	CRIMINAL LAW - conviction appeal - appellant a taxi driver charged with sexual and stealing offences against female passenger - jury acquits of aggravated detain for advantage and convicts of indecent assault and stealing - whether inconsistent verdicts - inconsistency not established - whether no case to answer on indecent assault count - held there was a case to answer - whether conviction for indecent assault unreasonable and not supported by evidence - ground not established - appeal dismissed
LEGISLATION CITED:	Crimes Act 1900 Criminal Appeal Act 1912
CATEGORY:	Principal judgment
CASES CITED:	R v EJ Smith [1982] 2 NSWLR 608 R v Ion (1996) 89 A Crim R 81 Rasic v R [2009] NSWCCA 202 R v R (1989) 18 NSWLR 74 Krishna v Director of Public Prosecutions (NSW) [2007] NSWCCA 318; 178 A Crim R 220 Dungay v R [2010] NSWCCA 82 Jovanovksi v Director of Public Prosecutions (NSW) [2009] NSWCCA 284 R v TK [2009] NSWCCA 151; 74 NSWLR 299 R v Serratore [1999] NSWCCA 377; 48 NSWLR 101 R v Sorlie (1925) 25 SR 532 Fitzgerald v Kennard (1995) 3 NSWLR 184 Toalepai v R [2009] NSWCCA 270
PARTIES:	Cory Edward Still (Appellant) Regina (Respondent)
FILE NUMBER(S):	CCA 2008/17564
COUNSEL:	Mr PD Rosser (Appellant) Ms J Dwyer (Respondent)
SOLICITORS:	Harris Wheeler Lawyers (Appellant) Solicitor for Public Prosecutions (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2008/17564
LOWER COURT JUDICIAL OFFICER:	Hock DCJ
LOWER COURT DATE OF DECISION:	16 October 2009 (on sentence)

2008/17564

BASTEN JA
JOHNSON J
ROTHMAN J

23 June 2010

STILL v REGINA

Judgment

1 BASTEN JA: I agree with the orders proposed by Johnson J and with his Honour’s reasons.

: The Appellant, Cory Edward Still, appeals against his conviction at the Newcastle District Court on 11 September 2009 upon a charge of indecent assault under s.61L Crimes Act 1900, an offence punishable by a maximum term of five years’ imprisonment.

Proceedings in the District Court

3 On 7 September 2009, the trial of the Appellant commenced before Hock DCJ and a jury following the entry of pleas of not guilty to the following charges:

(a) Count 1 - on 22 March 2008 at Adamstown Heights, the Appellant, without consent, detained KG with intent to obtain an advantage, and at the time of the offence, actual bodily harm was occasioned to KG (aggravated detain for advantage under s.86(2)(b) Crimes Act 1900 );

(b) Count 2 - on 22 March 2008 at Adamstown Heights, the Appellant assaulted KG and, at the time of the assault, did commit an act of indecency upon her (indecent assault under s.61L Crimes Act 1900 );

(c) Count 3 - in the alternative to Count 2, on 22 March 2008 at Adamstown Heights, the Appellant committed an act of indecency towards KG, a person above the age of 16 years (commit act of indecency under s.61N(2) Crimes Act 1900 );

(d) Count 4 - on 22 March 2008 at Adamstown Heights, the Appellant stole a quantity of clothing and a mobile telephone, the property of KG (stealing under s.117 Crimes Act 1900 ).

4 At the conclusion of the trial, the jury returned a verdict of not guilty on Count 1 and verdicts of guilty on each of Counts 2 and 4. Given the verdict of guilty on Count 2, no verdict was taken on Count 3, an alternative count.

5 On 16 October 2009, the Appellant was sentenced on Count 2 to imprisonment comprising a non-parole period of 12 months to commence on 10 December 2009 and to expire on 9 December 2010, with a balance of term of 12 months to expire on 9 December 2011. With respect to Count 4, a fixed term of imprisonment for 12 months was imposed commencing on 10 September 2009 and expiring on 9 September 2010.

Grounds of Appeal

6 The appeal challenges the conviction on the indecent assault count only. No appeal is brought with respect to the stealing conviction. No challenge is made to the sentence imposed on either count in the District Court.

7 The Appellant relies upon the following grounds of appeal:

(a) Ground 1 - the verdict of guilty on Count 2 is unsafe and unsatisfactory having regard to its inconsistency with the verdict of acquittal on Count 1;

(b) Ground 2 - the verdict of guilty on Count 2 was unreasonable and cannot be supported on the evidence having regard to the verdict of acquittal on Count 1;

(c) Ground 3 - the learned trial Judge ought to have directed the jury at the conclusion of the Crown case to acquit on Counts 2 and 3 on the basis that:


(i) the evidence was insufficient to enable the jury to be satisfied beyond reasonable doubt of any specific act of the Appellant amounting in law to an indecent assault,

(ii) the evidence was insufficient to enable the jury to be satisfied beyond reasonable doubt of any specific act of the Appellant amounting to an act of indecency,

(iii) there was no basis on the evidence for the jury to make any distinction between the offences alleged in Counts 2 and 3.


(d) Ground 4 - that in all the circumstances, the conviction on Count 2 is unsafe, unsatisfactory and unreasonable and amounts to a miscarriage of justice.

Leave Under s.5(1) Criminal Appeal Act 1912

8 Grounds 1, 2 and 4 do not involve “a question of law alone”. The Appellant must be treated as an applicant for leave to appeal against conviction under s.5(1) Criminal Appeal Act 1912: R v EJ Smith [1982] 2 NSWLR 608 at 609; R v Ion (1996) 89 A Crim R 81 at 85; Rasic v R [2009] NSWCCA 202 at [2], [12]. Insofar as Ground 3 involves the contention that the trial Judge was bound to direct the jury to acquit at the conclusion of the Crown case on Counts 2 and 3, it may be taken that the ground involves a question of law alone: R v R (1989) 18 NSWLR 74 at 84; Krishna v Director of Public Prosecutions (NSW) [2007] NSWCCA 318; 178 A Crim R 220 at 222 [2], 230-231 [49]-[52].

9 The Crown opposes the grant of leave in this case. The decision whether leave to appeal ought be granted involves an assessment of the arguability of the grounds relied upon. Having regard to the fact that the issues raised in the grounds of appeal are reasonably arguable and warrant consideration by the Court, it is appropriate that there be a grant of leave to appeal in this case.

The Evidence at Trial

10 Given the issues raised by the grounds of appeal, it is useful to recount, in summary form, evidence given at the trial.

The Crown Case

11 In March 2008, the Appellant was a taxi driver in the Newcastle area. It was the Crown case that the Appellant committed the present offences against a 32-year old female passenger, KG.

12 It was the Crown case at trial that the Appellant had detained the complainant in the taxi, without her consent, to obtain an advantage, namely to make her available to him for sexual purposes, and in the course of this detention, he occasioned actual bodily harm to her (Count 1). With respect to Count 2, it was the Crown case that the Appellant indecently assaulted the complainant in the taxi by removing her clothing for the purposes of sexual activity with her (without her consent) which led to his semen being deposited upon her clothing. The alternative charge in Count 3 involved the commission by the Appellant of an act of indecency towards the complainant, a charge which would arise for consideration if the jury was not satisfied beyond reasonable doubt that the Appellant indecently assaulted the complainant. The fourth count was one of stealing items of the complainant’s clothing and her mobile telephone.

13 On Saturday 22 March 2008, the complainant, KG, went out with a friend, Kerrie Delaney. Ms Delaney picked up KG in her car and drove to a hotel where they had lunch. The complainant had two glasses of white wine and after a couple of hours, they went to the home of another friend, Nadine Martin, of Adamstown Heights. On the way, they stopped at a bottle shop and purchased two bottles of white wine. After arriving at Ms Martin’s place they decided to stay, so they returned to the bottle shop where Ms Delaney purchased a two-litre cask of white wine. They returned to Ms Martin’s place about 4.30 pm and continued to drink.

14 KG was wearing three-quarter length brown pants with slip-on Colorado brown shoes. She was wearing a green boob-tube with a see-through bone-and-green top over it. She had two mobile phones with her and $250.00 cash in $50.00 notes.

15 By 7.30 pm, the complainant was observed by Ms Delaney to be quite intoxicated, and was upset and crying and had knocked over a few glasses and broken them. At about 8.00 pm, Ms Delaney called a taxi to take the complainant to her home at Merewether. Ms Delaney had asked the complainant why she was upset, but could not make sense of the complainant, who was slurring her words. Ms Delaney and Ms Martin walked the complainant down to the front of the building and waited with her for the taxi. When the taxi arrived, Ms Delaney told the driver, the Appellant, the address at Merewether to which the complainant was to be taken. KG sat in the front passenger seat. She was wearing all the clothing, as she had been during the day. There were no visible injuries on the complainant. Ms Delaney placed the complainant’s two mobile phones into the complainant’s bag before she left in the taxi.

16 In March 2008, the complainant lived in Merewether with her mother, RG. RG gave evidence that just before 9.30 pm on 22 March 2008, she opened the front door to see KG there. KG’s sheer blouse was hanging off her shoulder and RG could see her bra. KG was quiet and a bit agitated. RG asked her where she had been that day and the complainant said that she had been out for lunch with friends. Her speech was slurred and she sounded as though she had been drinking. KG went into her bedroom and went to sleep.

17 KG said in evidence that she had no recollection of leaving Ms Martin’s place. She recalled waking up in the early hours of the morning of Sunday, 23 March 2008, just after 2.00 am, in bed at her Merewether home. She noticed that one of her mobile phones (a black Nokia N80) was missing, so she tried to ring it from her other phone. It rang for a couple of rings and it then cut out, so she tried ringing again, with the same result. The phone was set to ring for 30 seconds before it went to message bank, but it only rang for about 10 seconds on these occasions. KG could not see her green boob-tube and noticed that she did not have any underpants on. She went back to sleep.

18 When she woke again at about 7.30 am - 8.00 am, she noticed that she did not have her mobile phone, top or underwear and then realised that she did not have her shoes. She had a sore on her knee and some scratches on her right upper thigh and right foot, together with some bruises on her left upper thigh and scratch marks around her neck. She did not have those scratches, bruises and sore on her knee when she went to Ms Martin’s house the previous afternoon. The injuries were on areas of her body that had been covered up by clothing when she went out. KG detected the smell of men’s aftershave on her bra. This odour had not been present when she had dressed the previous day.

19 KG said in evidence that she had a memory (described as a “vision”) of lying backwards and a man over the top of her saying “Shh, it’ll be OK”. She described the man as “a biggish sort of man, big build with short brown hair and a button up shirt”.

20 The complainant made enquiries of Ms Delaney and Ms Martin about what had happened the previous evening and thereafter made a report to police, taking her sheer top, three-quarter pants and her bra to the police station. The complainant had telephoned the police assistance line on 25 March 2008 to report her mobile phone missing and, on the same day, she attended Newcastle Police Station and spoke to a uniformed constable.

21 The Information Technology Manager for the Newcastle Taxi Company, Andrew McCallum, gave evidence that the company’s computerised despatch records disclosed that a taxi driven by the Appellant had picked up a passenger from a street in Adamstown Heights at 8.03 pm on 22 March 2008, this being the time when the taxi meter was turned on and commenced to calculate the fare. The signal that the taxi meter had been turned off came through at 9.11 pm that evening.

22 Kevin Cole was the owner/driver of the taxi driven by the Appellant on the evening of Saturday, 22 March 2008. After police spoke with Mr Cole in late March 2008, he rang the Appellant and asked him what had happened. The Appellant told him that he had had a woman in the car that he had problems with and, on the way from Kotara to Merewether, he had “stopped several times, she was ill and she was behaving pretty ordinary and at some stage she ended up out of the car”. The Appellant told Mr Cole that the passenger was “a bit psycho type of person”. When Mr Cole asked him why he did not tell police that, the Appellant said words to the effect that he was not able to remember straight away. The Appellant told Mr Cole that the woman was “crazy” and had caused him a fair amount of distress.

23 John O’Brien was the owner/driver of two taxi cabs in the Newcastle taxi network. The Appellant drove for him casually. On 10 April 2008, Mr O’Brien was cleaning one of his taxis and found a black Nokia N80 mobile phone on the driver’s side in a pocket in the door. The battery was flat, but he charged the phone and went through the phone’s listed numbers and called the number labelled “Mum”. He explained who he was and the woman who answered told him that it was her daughter’s phone. Mr O’Brien provided the woman (RG) with his contact details, and later that day a police officer came to collect the phone. Mr O’Brien’s records revealed that the Appellant had been driving that taxi on Monday, 24 March and Tuesday, 25 March 2008 and also Monday, 31 March and Tuesday, 1 April 2008.

24 Detective Sergeant Mark Dixon was the officer-in-charge of the investigation. At about 1.25 pm on 2 April 2008, Detectives Dixon and Logan went to the Appellant’s home and spoke to him. Detective Dixon told him that police wanted to speak to him at the police station about serious allegations of a sexual nature made by one of his passengers. The Appellant was arrested and cautioned. At the police station, whilst Detective Dixon was completing paper work, Acting Sergeant Barnett said “When did this happen?” and Detective Dixon said “About 11 days ago”. The Appellant said “I’ll tell you exactly when it happened. It occurred a fortnight ago on a Saturday night”. Detective Dixon said “You’re pretty good considering that I haven’t told you the entire nature of the allegation”. The Appellant said “I’m no dill. I’ve been driving cabs for 12 years. I know exactly what it’s about and it’s too late now to get the cab footage to show that I’m innocent”.

25 Police enquiries revealed that the footage that would have been filmed by the Appellant’s taxi security camera had been recorded over prior to the investigation.

26 At 4.12 pm on 2 April 2008, the Appellant participated in an electronically recorded interview with police. In the interview, the Appellant said he vaguely remembered picking up the complainant at the address in Adamstown Heights and driving her to a destination in Merewether. He did not remember where she sat in the cab. He said he followed the normal procedure of turning the fare meter on when he picked her up, and off when he dropped her off. He described routes between the two points and said it was a three to four kilometre distance that would take 10 to 15 minutes depending on the traffic.

27 The Appellant said that the passenger “was a bit flirty to me” and that he “just assumed that she had too much to drink … cause I get that all time when people have too much to drink …”. The Appellant said that the complainant had touched him on the leg and put her arm around him. He shrugged her off and did not touch her at all. He alleged that she told him he was “a nice driver”. He said that he would not do anything to jeopardise his job, and that the passenger had made these advances “at the beginning of the trip when she first hopped in”. He could not explain why the complainant had got into the taxi at 8.00 pm but did not arrive home until some time after 9.00 pm. He could not explain why the vehicle log showed that the fare started at 8.03 pm but that he did not close off the fare or turn off the meter until 9.11 pm. The Appellant said that he charged the complainant the fare.

28 The Appellant denied touching the complainant inappropriately or having sexual intercourse or sexual contact with her. He said he was not aware of her leaving any property in the taxi. He denied having her green boob-tube, underpants, Colorado shoes or her Nokia mobile phone. When asked “You said because she was flirty that you thought she had too much to drink”, the Appellant said “Yeah. Well, you could see that on her”. He said that he could not judge her level of intoxication.

29 The interview was stopped at one point so that police could execute a search warrant on the Appellant’s home. The Appellant accompanied police to his residence. During the search of the Appellant’s home, a plastic Henny Penny bag was located in the laundry. It contained the complainant’s underpants, strapless top and one of her Colorado brand shoes.

30 When the interview resumed at the police station, the Appellant agreed that the items found resembled the description of the complainant’s missing property, but could offer no explanation for their location in his laundry. He said that he did not know how the items got to his house. He describes himself as “Six foot something” tall, of average or overweight build, with dark brown hair containing grey streaks.

31 After the interview, a forensic sample was obtained from the Appellant for DNA comparison purposes.

32 On 10 April 2008, Detective Dixon drove the most direct route from Ms Martin’s Adamstown Heights address to the complainant’s home in Merewether, recording a distance of 4.7 kilometres with the journey taking approximately seven minutes.

33 Clayton Walton, a forensic biologist with the Division of Analytical Laboratories, gave evidence that a screening test for semen was undertaken on the complainant’s bra, shirt and pants. Semen staining was located along about 10 to 15 centimetres of the inside bottom of the bra cups. Semen was also located on the inside front of the crotch of the pants. There were two small areas of semen staining on the bottom of the front of the shirt on the left-hand side, and semen was detected on the larger of the two stains. DNA was recovered from the bra and the pants. That DNA matched the reference sample provided by the Appellant. Fewer than one in 10 billion in the general population would match that profile. No semen was detected on the complainant’s underpants or strapless top. Mr Walton agreed that there was no indication of how the semen came to be on the articles of clothing. He said that semen could be deposited directly, but could also be transferred by a hand touching a garment or a garment falling on to a stain.

The Defence Case

34 It was the defence case at trial that it was the complainant who had initiated sexual contact with the Appellant in the taxi, and that he had not detained her against her will, and that all sexual contact between them was consensual. The Appellant maintained at trial that he did not intend to steal the complainant’s mobile telephone, nor the items of clothing which ended up in a plastic bag in his laundry.

35 The Appellant gave evidence at the trial. It was his version that the complainant entered the taxi and soon after told him he was “a nice bloke” and put her hand on the inside of his leg. He said that the complainant was “very flirtatious and full on” and did not seem too intoxicated. He told her to take her hand off his leg and then she put her arm around his neck. He pulled over to the side of the road because he could not drive, and told the complainant that she had to stop, but she said that she did not want to stop.

36 The Appellant said that he continued driving and the complainant started removing her clothing. She took off her see-through top and her boob-tube and put it on the floor of the taxi, exposing both of her breasts. She put her hand back on his leg and he pulled over after the Brunker Street lights because he knew “he couldn’t shrug her off again”.

37 The Appellant said that he parked the taxi off the highway and the complainant pulled down her pants past her knees. He said that he pulled down his trousers and underpants past his knees. He alleged that the complainant encouraged him to have sexual contact with her and that it was the complainant who masturbated him until he ejaculated in her hand. He said that sexual activity then ceased and he pulled his pants up. The complainant pulled up her underpants and pants and put on her see-through top, but not the boob-tube which remained on the floor.

38 It was the Appellant’s evidence that he started driving again, but had not gone very far when the complainant said she wanted to go to the toilet. He pulled over again and the complainant got out of the taxi and went into the bushes. She was out of his view for five or 10 minutes, then he saw her coming out of the bushes and she fell over. He got out of the taxi and assisted the complainant back into the taxi. He noticed that she had blood running down the right-hand side of her right leg and he gave her some serviettes to wipe her leg.

39 The Appellant continued the journey and, as he was driving, he noticed that the complainant was putting some clothing in a plastic bag. He did not know where the plastic bag had come from. When they arrived at the address in Merewether, the complainant said “Stop here” and she got out of the taxi and walked into the building. The Appellant said that she did not offer to pay and he did not ask her to pay. He did not turn the meter off until he was nearly back at the Charlestown taxi rank as he had not realised it was still running. The fare shown on the meter was about $70.00.

40 The Appellant said that he continued working until about 4.00 am. When he got home, he cleaned out the taxi and found the plastic bag under the front passenger seat. He did not look inside it and just threw it in his laundry. He said that he called a friend, Frederick Noy, three times on 22 March 2008 and, during one of the calls, he told Mr Noy that a woman had “made advantages [sic]” at him and that he let her “pull him off”.

41 He said that, during the course of his shift on 23 March 2008, he found a mobile phone in the taxi. He did not know whose it was so he put it in the centre console with the intention of handing it in at the Hamilton taxi base, but he did not return to the taxi base during the shift. He put the phone in the right-hand side door pocket and then forgot about it.

42 He said that he had been drinking heavily and smoking cannabis on 2 April 2008 when the police arrested him. He knew “to a certain extent” what they were talking about when they arrested him. He participated in an interview with police and told them a number of lies because he was worried that it was going to affect his job and his livelihood.

43 The Appellant denied taking the complainant anywhere that she did not want to go, and denied doing anything to her of a sexual nature that she did not want. He denied that he initiated the sexual activity. He denied deliberately taking her clothes and her telephone.

44 Under cross-examination, the Appellant denied that he took advantage of a woman who was too drunk to be able to resist him. He said that he did not want to have any sexual contact with her and that she forced it on him. He could not say where he was at about 2.20 am on 23 March 2008 when the complainant rang the mobile phone that was in his taxi. He denied that the phone rang and that he hit the reject button. With respect to the plastic bag which contained the complainant’s items of clothing, the Appellant agreed that the bag came from Henny Penny. He could not recall whether he ate food from Henny Penny that night, but acknowledged that he could have. He denied that he had taken items of clothing from the complainant and kept them, putting them in the Henny Penny bag to keep in his laundry as a trophy of what he had done (T48.20, 9 September 2009).

45 The Appellant denied that he had diverted the complainant because she was too drunk to say she did not want to be with him. He denied taking advantage of her because of her clear state of intoxication, and denied that this was why he kept her clothes and her mobile phone (T49.27, 9 September 2009).

46 The Appellant said that he lied (to police) because he did not want his boss to know that he had had sexual contact with a passenger in the taxi and that he had taken 68 minutes off the job (T52-53, 9 September 2009). He agreed that he lied to police when he told them that he had charged the complainant the fare, that he had dropped her off in her street in Merewether, that the drive took about 10 minutes, that he did not take her anywhere but her destination and that he had just picked her up and dropped her off (T55, 9 September 2009). He denied that he had lied when he told police that he did not have any articles of the complainant in his possession, because he said that he did not know that he did (T53, 9 September 2009). When police searched his home and found the plastic bag in the laundry, he said that he had never seen it before because he had lots of different plastic bags in the laundry, and he did not know what the items were until the police officer explained what was inside (T56-57, 9 September 2009).

47 The Appellant agreed that he mentioned to police that cab film footage would have proved him innocent. He agreed that the cab footage would in fact have shown him having sexual contact with the complainant, this being contrary to what he had told the police had happened (T59, 9 September 2009).

48 It was put to the Appellant that he had called Mr Noy at 2.21 am on 23 March 2008 in a panic after the complainant’s mobile phone rang. He denied that he had heard the phone ring (T67, 9 September 2009).

49 Frederick Noy was called in the defence case at trial. He was a taxi driver who had known the Appellant for six to eight years. He gave evidence of telephone calls with the Appellant in which the Appellant told him that he had “picked up a drunk sheila and she was making advances at him” and that the Appellant said that the passenger had given him a “hand job”.

Grounds 1 and 2 - Inconsistent Verdicts Concerning Counts 1 and 2 - Contention that the Conviction on Count 2 was Unsafe and Unsatisfactory, Unreasonable and Cannot be Supported on the Evidence Because of the Acquittal on Count 1

Submissions

50 Mr Rosser, for the Appellant, submitted that there was a significant and fundamental inconsistency between the acquittal on the first count and the conviction on the second count, so that the verdicts cannot stand together. He submitted that this was not a case where the difference in verdicts arises from the jury taking different views of the evidence of a witness on one count as opposed to another. Nor was it a case, the Appellant submits, where apparently differing verdicts can be explained by virtue of a jury failing to convict upon counts containing additional elements. It was submitted that the present jury had dealt with the identical issue in contexts which, whilst not identical, do not admit of any rational basis for distinction.

51 Mr Rosser submitted that the live issue with respect to Counts 1 and 2 concerned the complainant’s consent or lack of consent. The Appellant submitted that the jury’s want of satisfaction that the complainant was detained in the vehicle without her consent (Count 1) does not rationally admit of its satisfaction that sexual activity that took place during that detention was without her consent (Count 2). Count 1 involved continuous detention, with the only advantage relied upon by the Crown being to make the complainant available to the Appellant for sexual purposes.

52 Having regard to the issues upon which the trial was fought, and the absence of any rational basis upon which the jury may have differentiated between Counts 1 and 2, Mr Rosser submitted that the conviction on Count 2 is an affront to logic and commonsense and is unacceptable, suggesting a compromise of the performance of the jury’s duty so that the conviction on Count 2 cannot stand.

53 The Crown submitted that whilst it is correct that the issue in the trial was the consent of the complainant, this did not of itself determine the outcome of the first ground. In respect of Count 1, the Crown submitted that the jury may not have been satisfied beyond reasonable doubt that the complainant did not consent to her detention in the taxi for longer than necessary or, if satisfied that she did not consent to it, that her lack of consent was conveyed to the Appellant to prove the element of his knowledge or recklessness. Given the undisputed evidence that the complainant was affected adversely by alcohol, and the evidence of Ms Delaney that just prior to putting the complainant in the taxi, she had difficulty in understanding what the complainant was saying, this would have been a rational and proper basis for the jury to acquit the Appellant on the first count.

54 The Crown submitted that the issue of consent to sexual activity is quite different to that of consent to being detained in a taxi for longer than necessary. The jury may well have concluded, and it was open to them to do so, that they could not be satisfied that the complainant did not consent, or that the Appellant knew that she did not consent to him detaining her in the taxi for longer than necessary, but that they could be satisfied as to her lack of consent to sexual activity with him. Furthermore, the admission by the Appellant in his evidence at trial that he assumed that the complainant wanted sexual contact with him and that she did not say so and nor did he ask her, was evidence upon which the jury could have been satisfied beyond reasonable doubt that the Appellant was, at the least, reckless as to whether or not she was consenting.

55 The Crown submitted that the evidence of Ms Delaney that the complainant was upset, crying and intoxicated shortly before she entered the taxi was highly probative on the issue of whether she would, within moments of entering the taxi, commence flirting and making sexual advances to a man she had never met before. The jury had the opportunity to observe the complainant give evidence, and counsel for the Appellant at trial relied on her as an honest witness. The Crown acknowledged that the complainant’s response to questions was that she could not remember, rather than a denial. However, given her evidence that she had no recollection of anything that happened from some time prior to her entering the taxi, the Crown submitted that the complainant could hardly have answered otherwise.

56 The Crown submitted that there was a clear and rational basis for the different verdicts on Counts 1 and 2, so that the verdict of guilty on Count 2 was neither an affront to logic and commonsense, nor did it suggest compromise.

Decision

57 In a number of recent decisions, this Court has considered the principles to be applied where a ground of appeal asserts that a jury has returned inconsistent verdicts, so that a conviction is unreasonable or has given rise to a miscarriage of justice.

58 The Appellant bears the burden of establishing inconsistency of verdicts, and it is only where inconsistency rises to the point that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside: Dungay v R [2010] NSWCCA 82 at [22].

59 In Jovanovksi v Director of Public Prosecutions (NSW) [2009] NSWCCA 284, Basten JA (with myself agreeing) said at [14]-[23]:

“14 Differing approaches may be found in appellate decisions as to the inferences which may be drawn from the acceptance by a jury of the prosecution case on some counts, and its rejection on other counts. In some circumstances this situation may be said to reveal ‘inconsistent verdicts’. Depending on precisely what is meant by that language, it may provide a ground for intervention. (It is not presently relevant under which head of s 6(1) intervention occurs.)

15 There may be rare cases of what has been described as ‘legal or technical inconsistency’: see Mackenzie v The Queen [1996] HCA 35; 190 CLR 348 at 366, par 1 (Gaudron, Gummow and Kirby JJ). Perhaps ironically, the examples given in the joint judgment are of apparently consistent verdicts, namely guilty on two counts, but in circumstances where the person cannot in law be guilty of both offences. No such issue arises in the present case.

16 A separate situation arises where, on a trial involving several counts before a single jury, there is said to be ‘factual inconsistency’ arising from conviction largely on the evidence of the complainant on certain counts, but rejection of her evidence on other counts. Often the cases will involve sexual assaults, but in some cases (including the present) the counts may involve a domestic relationship, but without a sexual element.

17 The most obvious case of factual inconsistency is one where the evidence of the complainant relates to a single event giving rise to two charges. In the absence of some other evidence supporting one charge but not the other, conviction on one charge only is capable of supporting an inference that the trial miscarried: see, eg, Lajciak v The Queen [1999] NTSC 82. However, where the charges involve different incidents, the inference that acceptance of the complainant’s evidence in relation to one incident but not another demonstrates a miscarriage of justice will be less readily drawn. As explained in the joint judgment in Mackenzie at 367:

‘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.’


18 In some cases, of which the present is an example, the appellant may combine an attack on the inadequacy of the evidence with the appearance of factual inconsistency between verdicts.

19 In Markuleski [[2001] NSWCCA 290; 52 NSWLR 82] , Spigelman CJ rejected the view that Jones [[1997] HCA 12; 191 CLR 439] ‘established the proposition that in a pure word against word case a mixture of acquittals and convictions cannot be sustained unless the Court can detect a relevant difference in the quality of the complainant’s evidence’: at [64] and [65]. Where separate incidents are involved, cases which can be described as ‘pure word against word’ may well be rare. Extraneous circumstances will often provide support in one situation, but not in another. Further, whereas the detail supplied in respect to one incident may differ from that provided in relation to another, being a point of distinction which will be apparent from the transcript, nuances in the manner of describing the events which may readily have been perceptible to the jury will not appear on the transcript. In MFA [[2002] HCA 53; 213 CLR 606] , Gleeson CJ, Hayne and Callinan JJ noted a number of features which may need to be considered in circumstances where juries discriminate between counts, at [34]:

‘First, as in the present case, where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count. This will often be accompanied by a specific instruction that the evidence of a witness may be accepted in whole or in part. Secondly, emphasis will invariably be placed upon the onus of proof borne by the prosecution. … In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. This may not be unreasonable. It does not necessarily involve a rejection of the complainant's evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. … A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant's evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others.’


20 Their Honours identified a third matter namely that ‘it may appear to a jury, that, although a number of offences have been alleged, justice is met by convicting an accused of some only’, referring to the reasoning of King CJ in R v Kirkman (1987) 44 SASR 591 at 593. The same passage was referred to by McHugh, Gummow and Kirby JJ in MFA , noting that it had been cited with approval in Mackenzie , 190 CLR at 367-368.

21 How much weight should be placed upon the power of a jury to adopt an ameliorative or compassionate role by not convicting in circumstances where they were satisfied that a particular charge was proved is difficult to assess. In Kirkman , King CJ identified the possibility as a reason for caution in concluding that there was a miscarriage where a verdict was adequately supported by the evidence: 44 SASR at 593. He said that he mentioned the point ‘as a matter of general observation’ but thought it ‘unnecessary to look to considerations of that kind in the present case’. Further, it is not clear that there has been a case in which apparent factual inconsistency has been rejected on that basis. That is understandable because such a conclusion would usually be based on pure speculation. Secondly, it would be speculation adverse to the interests of the appellant. In most cases, because juries are not directed that they may acquit on such a basis, that approach would seem to involve an assumption that the jury has not followed its directions. By contrast, there are many circumstances in which a conviction appeal will be dismissed because, despite the weakness of the prosecution case, it is generally to be assumed that the jury applied the directions they were given and were therefore satisfied beyond reasonable doubt: see, eg, Gilbert v The Queen [2000] HCA 15; 201 CLR 414 at [13] (Gleeson CJ and Gummow J).

22 Although this is a case in which it may be possible to infer that a reasonable juror could have thought that the prosecution had been unduly heavy-handed in the number and nature of the charges laid, and despite the apparent latitude granted by the High Court in this regard, I would not uphold the convictions on the basis that the jury may have been satisfied beyond reasonable doubt as to other charges as well, so as to avoid an inference of factual inconsistency.

23 The remaining question is the degree of satisfaction required in respect of factually inconsistent verdicts, in order to warrant a finding of miscarriage. It is apparent that the test in this respect differs from that in relation to the assessment of evidence and a conclusion that a verdict should not stand because it was not supported by the evidence. Assuming that there was evidence to support the verdict, the factors set out above demonstrate the need for great caution in assuming that a jury has acted inappropriately in reaching a conclusion of guilt in some circumstances and a contrary conclusion in others. Having noted the basis for such caution, Gaudron, Gummow and Kirby JJ in Mackenzie stated at 368, par 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’.”

60 An appellate court should be cautious before concluding that a jury (as a whole) has acted contrary to its clearly explained duty. There may be many reasons why a jury does not convict on a particular count and an appellate court must allow for the advantage of the jury when considering questions arising under s.6(1) Criminal Appeal Act 1912: R v TK [2009] NSWCCA 151; 74 NSWLR 299 at 301-302 [6], 331 [194]. Where there is evidence to support the verdict, there is a need for great caution in presuming that a jury has acted inappropriately in reaching a conclusion of guilt in some circumstances, and a contrary conclusion in others: Jovanovksi v Director of Public Prosecutions (NSW) at [23].

61 The Appellant’s argument in this case asserts factual inconsistency, and not legal or technical inconsistency, between the verdicts on Counts 1 and 2: Jovanovksi v Director of Public Prosecutions (NSW) at [15]-[17].

62 The trial Judge gave the jury the following direction concerning the joint trial of separate counts (SU8):

“You will need to return a verdict in respect of each of the charges, with the exception of that alternative charge. The trials of the counts are being heard together because the surrounding circumstances, as a matter of commonsense and convenience you would not have separate trials in respect of each count. You will need to consider each charge separately and independently, and these directions of law that I am giving you apply equally in respect to each and every charge.

There is no legal requirement that the verdicts which you must give must be the same, even though the Crown Prosecutor and Mr Rosser addressed you generally that you would return the same verdicts in respect of all counts or charges. You are not bound to find that way because the facts are for you alone to determine. There are different facts and circumstances surrounding the different charges even though there is a common thread running through all of them, and those different facts or circumstances would justify different verdicts.”

63 Her Honour gave the jury written and oral directions concerning the elements of the offences. No challenge is made to the accuracy of those directions. With respect to Count 1, her Honour directed the jury that the Crown had to prove that the detention or keeping of KG in the taxi was done without her consent (SU11-12). With respect to Count 2, the trial Judge directed the jury that the Crown must prove that the Appellant intentionally touched KG without her consent, and committed an act of indecency upon her (SU15-16; SU3-5, 11 September 2009).

64 In her remarks on sentence on 16 October 2009, the trial Judge referred to the jury verdicts and made the following findings concerning Count 2 (ROS3-4):

“The offender was found not guilty of count 1 and he is entitled to the full benefit of his acquittal. The Crown case on count 2 was based on a combination of circumstances to prove beyond reasonable doubt that the offender had touch [ed] and or removed part or parts of the complainant’s clothing and that this was an act of indecency given the detection of his semen on her clothes. The jury must of course have been satisfied beyond reasonable doubt that the complainant did not consent and that the offender knew that she did not consent or was reckless as to that issue. The jury must have eliminated as a reasonable possibility that the events were in accordance with the offender's sworn evidence. That is not surprising as he was a most unimpressive witness. He admitted in cross-examination that he made up that he had been threatened in the earlier interview with police and which he also asserted in his evidence. In addition, despite his sworn evidence of the complainant had taken advantage of him and he was distressed about it, even his own counsel suggested in his address to the jury that they could not believe him on that issue. This was a realistic concession in my view.

As to count 4. the jury must have been satisfied beyond reasonable doubt that the offender did not intend to return the items to the complainant despite his sworn evidence that he did so intend and had merely forgotten about them. .

While the precise nature of the indecent assault was not able to be specified by the complainant, this remains a serious breach of the criminal law. I am obliged to sentence the offender on the basis of the minimum conduct sufficient to amount to an indecent assault as outlined earlier as the complainant is not able to recount what took place. I do not take into account the sixty-eight minutes that the complainant was in the cab as relevant to the indecent assault charge. I have disregarded the injuries as they cannot be related to this offence and are not relied on by the Crown.”

65 It is correct to say that a live issue with respect to Counts 1 and 2 was the requirement for the Crown to prove an absence of consent on the complainant’s part. However, Count 1 involved the requirement to establish absence of consent to detention in the taxi for longer than the scheduled duration of the journey. This involved a passive aspect, namely detention in the taxi per se.

66 By way of contrast, Count 2 required proof of absence of consent by the complainant to sexual activity with the Appellant. This charge went beyond the bare extended period of time when the complainant was in the taxi, to the question of whether there was an absence of consent to positive sexual acts involving the Appellant. I accept the Crown submissions summarised at [53]-[56] above. The complainant was heavily affected by alcohol, incoherent in her speech shortly before entering the taxi and probably bordering upon being comatose. These were significant aspects bearing upon the giving of consent to sexual activity with the Appellant, who was a complete stranger.

67 In my view, this distinction concerning the consent issue as between Counts 1 and 2 is important. The distinction is an available, rational, indeed probable, explanation for the difference in verdicts as between Counts 1 and 2.

68 Viewed in this way, I do not consider that the difference in the verdicts as between these counts supports the Appellant’s argument that the conviction on Count 2 is irrational and unreasonable so that it ought be set aside.

69 Even if the verdicts with respect to Counts 1 and 2 could be considered to be inconsistent verdicts, there was, in this case, evidence to support the conviction on Count 2. As mentioned at [60] above, great caution ought be exercised before finding (in effect) that a jury has acted inappropriately in reaching a conclusion of guilt on one count, and reaching a contrary conclusion on another count. However, this point is not reached in this appeal. The Appellant has not established that the verdicts with respect to Counts 1 and 2 are inconsistent in the relevant sense.

70 I would reject the first ground of appeal.

Ground 3 - The No Case to Answer Ground

Submissions

71 The Appellant submitted that the trial Judge erred in declining to direct the jury at the conclusion of the Crown case to acquit on Counts 2 and 3. Mr Rosser submitted that the Crown was not able to identify the specific act of the Appellant which could amount to an indecent assault (Count 2) or an act of indecency (Count 3).

72 The Appellant submitted that the Crown case upon Counts 2 and 3 was entirely speculative. It was submitted that, at its highest, the evidence entitled the jury to conclude that something of a sexual nature resulting in the Appellant ejaculating took place in the taxi. For the jury to have concluded unanimously that an indecent assault occurred, as opposed to an act of indecency, must have involved nothing beyond speculation. It was submitted that the sum total of the Crown case was that an intoxicated complainant, who may not have been likely to engage willingly in sexual activity, had entered the taxi and remained in it for appreciably longer than might have been expected, with something of a sexual nature taking place and with some of her clothing being removed in some manner. In the absence of a version from the complainant, it was submitted for the Appellant that the evidence did not entitle the jury to make a unanimous affirmative finding as to what took place, still less a finding of a lack of consent or knowledge or recklessness as to a lack of consent.

73 Mr Rosser submitted that the Appellant’s lies were incapable of shedding any light upon the specifics of what took place in the taxi.

74 The Crown submitted that the evidence in this case was circumstantial, and did not differ in that regard from other cases where a sexual assault is prosecuted in circumstances where the complainant is drugged and unconscious, or lacks recollection for any other reason. The Crown submitted that the accumulation of circumstances, including the injuries to the complainant, the taking of items of clothing by the Appellant, the location of the Appellant’s semen on the complainant’s clothing, her distress and intoxication, together with other factors, constituted a strong circumstantial case that she was indecently assaulted by the Appellant during the course of the taxi journey. The Crown submitted that there was clearly a case to be left to the jury as with respect to Count 2 and Count 3.

Decision

75 As mentioned earlier in this judgment (at [8]), this ground falls to be determined upon the basis that it raises a question of law alone. In R v Serratore [1999] NSWCCA 377; 48 NSWLR 101, Dunford J (Greg James J agreeing) said at 130 [127]:

“In determining whether there is a case to answer, the question to be decided is not whether on the evidence as it stands, the accused ought to be convicted, but whether on the evidence as it stands, he could lawfully be convicted: May v O'Sullivan (1995) 92 CLR 654 at 658. In considering such an application, the judge does not consider the probative value of the evidence as a whole, but only that evidence which, if believed and uncontradicted, could be accepted as proof of the Crown case: R v Towers (1984) 14 A Crim R 12 at 14, Doney v The Queen (1990) 171 CLR 207 at 214-215, R v R (1989) 18 NSWLR 74; and in a case of circumstantial evidence, such as the present, a finding of no case to answer is not open if there is evidence in support of the Crown case upon which the accused can be convicted, even though a reasonable hypothesis consistent with innocence can be postulated: R v JMR (1991) 39 A Crim R 39 at 44.”

76 To make good this ground, it is necessary for the Appellant to establish there was no case to answer in accordance with these principles.

77 Ground 3(i) contends that the trial Judge erred in not directing a verdict of acquittal on Count 2, the indecent assault charge. For the purpose of the crime of indecent assault, the act of assault may itself constitute the act of indecency: R v Sorlie (1925) 25 SR 532 at 535; Fitzgerald v Kennard (1995) 3 NSWLR 184 at 186-187, 191-192, 200-202.

78 It is sufficient to observe that the circumstantial case relied upon by the Crown left clearly open to the jury a finding that the Appellant had deliberately touched, and thus assaulted, the complainant in the course of removing her clothing and that he committed an act of indecency on her, leading to the deposit of his semen on her clothing, all this taking place without the complainant’s consent and with the Appellant, at least, being reckless as to the complainant’s lack of consent.

79 I do not accept Mr Rosser’s submission that this involves a process of speculation. Rather, this position may be reached by the drawing of inferences from the totality of the circumstantial evidence.

80 No error has been established with respect to her Honour’s finding that the Appellant had a case to answer on Count 2. I would reject Ground 3(i). As the jury was not required to consider the alternative count (Count 3), I see no useful purpose in determining Grounds 3(ii) and 3(iii).

Ground 4 - The Indecent Assault Conviction is Unreasonable and Amounts to a Miscarriage of Justice

Submissions

81 Even if there was a case to answer with respect to Count 2, Mr Rosser submitted that the verdict of the jury was unreasonable and cannot be supported by the evidence. In support of this ground, he submitted that the jury was left with circumstantial evidence that was equivocal having regard to the issues in the trial, accompanied by the evidence of the complainant who had no recollection (apart from one aspect described as a “vision”) of events in the taxi. Mr Rosser acknowledged that the Appellant had told lies to police in the initial interview and that his evidence may not have had a favourable impact upon the jury. However, he stressed the evidence of Mr Noy of the telephone conversation with the Appellant not long after the relevant events in which the Appellant had said that he had “picked up a drunk sheila and she was making advances at him” and had given him a “hand job”. It was submitted that this account given by the Appellant soon after the relevant time was probative and supportive of the Appellant’s account at trial that the complainant had initiated the sexual contact with him and had consented to it.

82 The Crown submitted that it was open to the jury to convict the Appellant of indecent assault. There was a strong circumstantial case which entitled the jury to convict on Count 2. The Crown emphasised that, although the complainant could not remember the details of what had happened in the Appellant’s taxi, she did have some recollection of an event in the taxi and a description of the Appellant was provided as part of this recollection (see [19]) above. Further, the Crown submitted the Appellant’s evidence at trial was entirely unconvincing and formed part of the evidence before the jury.

Decision

83 The Appellant contends that the verdict of the jury on Count 2 is unreasonable and cannot be supported having regard to the evidence: s.6(1) Criminal Appeal Act 1912. In Rasic v R, the Court said at [25]-[27], [29]-[30]:

“25 Where it is contended that a verdict of a jury is unreasonable or cannot be supported having regard to the evidence, the question which this Court must ask itself is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that each Appellant in this case was guilty: M v The Queen [1994] HCA 63; 181 CLR 487 at 493; MFA v The Queen [2002] HCA 53; 213 CLR 606 at 614-615 [25], 623 [55]-[57]. This Court’s function under s.6(1) is to be ‘performed within a legal system that accords special respect and legitimacy to jury verdicts deciding contested factual questions concerning the guilt of the accused in serious criminal trials’: MFA v The Queen at 624 [59]. The jury had the benefit of seeing and hearing the witnesses, including each of the Appellants: M v the Queen at 493.

26 In MFA v The Queen , McHugh, Gummow and Kirby JJ said at 623 [56] (footnotes omitted):

‘The majority in M pointed out that ‘ [i] n most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced’. In such a case of doubt, it is only where the jury's advantage of seeing and hearing the evidence can explain the difference in conclusion about the accused's guilt that the appellate court may decide that no miscarriage of justice has occurred [at 494]:
‘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’.’

27 In their conclusion, McHugh, Gummow and Kirby JJ observed in MFA v The Queen at 634 [96] (footnotes omitted):

‘There are, it is true, some aspects of the evidence that are less than wholly satisfactory. But that is not uncommon in most trials. Experience suggests that juries, properly instructed on the law (as they were in this case), are usually well able to evaluate conflicts and imperfections of evidence. In the end, the appellate court must ask itself whether it considers that a miscarriage of justice has occurred authorising and requiring its intervention.’


…

29 Where verdicts are challenged upon the basis that they are unreasonable or cannot be supported by the evidence, the evidence ought not be considered piecemeal: The Queen v Hillier [2007] HCA 13; 228 CLR 618 at 637-638 [46]-[48] (Gummow, Hayne and Crennan JJ); The Queen v Keenan [2009] HCA 1; 83 ALJR 243 at 267 [128] (Kiefel J, Hayne, Heydon and Crennan JJ agreeing); applied in Burrell v R [2009] NSWCCA 193 at [59]-[61] (Giles JA, Howie and Buddin JJ agreeing). These authorities concerned circumstantial Crown cases. However, a similar approach is appropriate in this case. This Court is required to consider the totality of evidence before the jury, and not just parts of it. This involves an assessment of direct evidence of witnesses, and inferences to be drawn from a combination of events.

30 This Court has emphasised the fact that a jury brings to consideration of a circumstantial case the common experience of members of the community who apply their collective knowledge of human affairs and their common sense: R v Kaldor [2004] NSWCCA 425; 150 A Crim R 271 at 272-273 [2], 293-294 [86]; Chahine v R [2006] NSWCCA 179 at [88]; BJR v R [2008] NSWCCA 43; 185 A Crim R 360 at 380 [97]. After citing these authorities, Giles JA (Howie and Buddin JJ agreeing) said in Burrell v R at [65]:

‘This Court must make its own assessment of the evidence. But the assessment is of the cumulative effect of the evidence, and with due regard to the common experience of human affairs and common sense brought by the jury to their determination of guilt or innocence’.”

84 In essence, this Court is required to consider all the evidence at the trial and determine whether the jury should have had a reasonable doubt about the guilt of the Appellant notwithstanding its advantage in having seen the witnesses, including the complainant and the Appellant, give evidence: Toalepai v R [2009] NSWCCA 270 at [55].

85 The Crown and defence cases at trial were summarised earlier in this judgment. In my view, the circumstantial case relied upon by the Crown was a strong one. A number of features of the case should be emphasised.

86 The evidence pointed to the complainant being strongly intoxicated by the time she came to get into the Appellant’s taxi. Her friends were concerned about her welfare and called a taxi for the purpose of her being taken on what should have been the short journey home. The complainant had been crying and when she spoke, Ms Delaney could not make sense of what she was saying - the complainant was “slurring her words” and “she wasn’t making sense” (T40, 7 September 2009).

87 It was clearly open to the jury to accept that the complainant was well intoxicated and somewhat incoherent at the time she was placed into the Appellant’s taxi. The Appellant maintained that the complainant made sexual advances towards him, culminating in clothing being removed and the complainant masturbating the Appellant. The jury had the opportunity of seeing the complainant give evidence. Her evidence disclosed the thought processes of a heavily intoxicated person who, after some hours of sleep, awoke to find injuries to her body and items of her clothing and her mobile phone gone. It was open to the jury to conclude that the complainant was disturbed and concerned by this state of affairs and made enquiries soon thereafter to ascertain what had happened to her. She gave evidence at trial in what must have been a straightforward fashion, with the Appellant’s counsel submitting to the jury that she had been a truthful witness. To the extent that the complainant had a recollection of events in the taxi (clouded as that recollection must have been), the recollection was not of assistance to the Appellant. The complainant would have struck the jury as an honest and straightforward witness.

88 The injuries to the complainant and the removal of items of her clothing was evidence which incriminated the Appellant. The fact that the Appellant had taken and retained items of the complainant’s clothing provided support for a conclusion that what took place in the taxi were acts of non-consensual sexual exploitation by the Appellant of the complainant.

89 The Appellant gave various inconsistent accounts as to what had happened in the taxi. These included his conversations with Mr Noy and Mr Cole, his interview with police, both before and after and the discovery of the complainant’s clothing at the Appellant’s home, and his evidence before the jury. That the Appellant had given different and inconsistent accounts at various times, including admitted lies, was accepted by the defence at trial. The evidence of the Appellant formed part of the body of evidence before the jury to which attention must be paid by this Court for the purpose of determining this ground of appeal. The evidence of Mr Noy provided limited assistance to the Appellant. The various statements of the Appellant, and his evasive and untruthful approach concerning events in the taxi, would have fortified a conclusion by the jury that he spoke and acted as a person who had sexually exploited the heavily intoxicated complainant, being, at the least, reckless as to whether or not she was consenting.

90 It was clearly open to the jury to be satisfied beyond reasonable doubt that the Appellant removed items of the complainant’s clothing for his sexual purposes, culminating in ejaculation upon the complainant’s clothing. As mentioned above (at [77]), the act of assault may itself constitute the act of indecency. It was clearly open to the jury to conclude that the complainant was not consenting to physical and sexual acts of this type being perpetrated upon her by the Appellant and that the Appellant knew or, at least, was reckless in this respect. It was open to the jury, at the very least, to conclude that the Appellant was indifferent to whether or not the complainant was consenting, so that it could be said that he “couldn’t care less” in that regard: Fitzgerald v Kennard at 204.

91 It was clearly open to the jury to reject the Appellant’s account that the complainant had initiated sexual contact with him. In reaching these conclusions, the jury would have had regard to the totality of the evidence before them, including evidence concerning the heavy intoxication of the complainant and her level of incoherence. It would have been open to the jury to conclude that the complainant was unconscious at times whilst she was in the taxi, and that this was a significant aspect on the issue of consent on the indecent assault charge.

92 It was clearly open to the jury to be satisfied beyond reasonable doubt of the guilt of the Appellant on Count 2. Applying the principles at [83]-[84] above, and having considered all the evidence at the trial, it cannot be said that the jury should have had a reasonable doubt about the guilt of the Appellant. It has not been demonstrated that there is a significant possibility that an innocent person has been convicted of this crime. The Appellant has failed to establish that the verdict of the jury was unreasonable and cannot be supported having regard to the evidence.

93 I reject the fourth ground of appeal.

Conclusion

94 The Appellant has not made good any of the grounds of appeal.

95 I would make the following orders:

(a) grant leave to appeal in relation to Grounds 1, 2 and 4;

(b) dismiss the appeal against conviction.

: I agree with Johnson J.

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