TA v R

[2015] NSWCCA 151

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	TA v R [2015] NSWCCA 151
Hearing dates:	3 June 2015
Date of orders:	19 June 2015
Decision date:	19 June 2015
Before:	Ward JA at [1]; Johnson J at [44]; Garling J at [45]
Decision:	1.   Extend time for the filing of the notice of application for leave to appeal to 4 March 2015. 2.   Dismiss the application for leave to appeal.
Catchwords:	CRIMINAL LAW – leave to appeal – against conviction – whether inconsistent verdicts – whether guilty verdicts unreasonable in light of acquittals on other counts
Legislation Cited:	Crimes Act 1900, ss 59, 61, 61I Criminal Appeal Act 1912, s 5 Weapons Prohibition Act 1998, s 7
Cases Cited:	Dungay v R; R v Dungay [2010] NSWCCA 82 Jones v The Queen [1997] HCA 56; (1997) 191 CLR 439 M v The Queen [1994] HCA 63; (1994) 181 CLR 487 MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 O’Grady v R [2014] HCA 38; (2014) 252 CLR 621 Osland v R [1998] HCA 75; (1998) 197 CLR 316 R v Markuleski [2001] NSWCCA 290; (2001) 52 NSWLR 82 R v Murray (1987) 11 NSWLR 12 Rasic v R [2009] NSWCCA 202 Raumakita v R [2011] NSWCCA 126; (2011) 210 A Crim R 326 Still v R [2010] NSWCCA 131 TK v R [2009] NSWCCA 151; (2004) 74 NSWLR 299
Category:	Principal judgment
Parties:	TA (Applicant) Crown (Respondent)
Representation:	Counsel: AJ Karim (Applicant) G O’Rourke (Respondent)   Solicitors: Aquila Lawyers (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2012/203359
Publication restriction:	Order that the name and any information identifying the applicant and complainant not be published in accordance with the powers of this Court pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW). The order is necessary to protect the victim.
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 6 August 2013 Before: North DCJ File Number(s): 2012/203359

Judgment

1. WARD JA: The applicant (“TA”) was convicted by a jury in August 2013 of sexual assault against the complainant (his wife, “NA”). He seeks leave to appeal against those convictions, leave being required pursuant to s 5(1) of the Criminal Appeal Act 1912 since the ground of appeal relied upon does not involve questions of law alone (Rasic v R [2009] NSWCCA 202 at [12]). He also requires an extension of time for the filing of his application for leave to appeal, which is opposed by the Crown.

2. TA was tried in the District Court on an indictment in which there were nine counts, eight of which related to conduct against his wife (one relating to possession of a prohibited weapon without a permit). The jury returned a verdict of guilty on two of the nine counts (counts 6 and 8). The sole ground of appeal pressed in this Court is that the convictions on those two counts are unreasonable within the meaning of s 6(1) of the Criminal Appeal Act having regard to TA’s acquittal in respect of one of the seven remaining counts on which he was found not guilty (count 5).

Application for extension of time

3. An affidavit sworn by TA’s solicitor, Mr Juweinat, was read in support of the application for an extension of time to file the notice of application for leave to appeal. In that affidavit there was no explanation for the initial delay between TA’s conviction on 6 August 2013 and May 2014, when an extension was granted to extend the time for filing of a notice of intention to appeal. Counsel appearing for TA in this Court informs the Court that the matter was assigned by Legal Aid in November 2013 and that the delay was not attributable to TA but there is no way of knowing what the explanation for it might be other than that Mr Juweinat has deposed that the grant of the initial extension was on the basis that the entire transcript was not available to his office at that stage. In any event, that extension expired in July 2014. TA’s solicitor has deposed that, due to an administrative error, the filing of a further extension (by which he presumably means an application for a further extension of time) was overlooked.

4. Once the transcript was received (there is no indication when that was other than that it must have been before September 2014 when Counsel’s advice was obtained), Mr Juweinat sought Counsel’s advice on the merits of an appeal. That advice was received in late September 2014. Mr Juweinat has deposed that one possible ground of appeal advised by Counsel was that of competence of the Counsel appearing at trial and that he was advised that he needed to take certain instructions from TA (as to what advice was given to him about giving evidence in the proceedings) before relying upon the competence ground of appeal. Mr Juweinat was unable to take “sound instructions” from TA until December 2014. He says that he received Counsel’s revised submissions on 16 February 2015 but due to personal difficulties had been unable to file the appeal in late February 2015. The notice of application for leave to appeal was finally filed on 4 March 2015.

5. I will consider the application for leave to appeal and for an extension of time for the filing of the requisite notice after addressing the merits of the appeal.

Crown case at trial

6. It was the Crown case that TA sexually abused and assaulted his wife over a period of years from 2000 until November 2011 when she left him, taking with her their four children. NA first complained to the police after she had left her husband.

7. TA was charged with nine offences: five counts of sexual intercourse without consent knowing that NA was not consenting, contrary to s 61I of the Crimes Act1900 (counts 1, 2, 5, 6 and 8); one count of an offence of possession of prohibited weapon without permit, contrary to s 7(1) of the Weapon`s Prohibition Act 1998 (count 3); one count of assault occasioning actual bodily harm contrary to s 59 of the Crimes Act (count 4); and two counts of assault contrary to s 61 of the Crimes Act (counts 7 and 9).

8. The conduct the subject of count 5, on which TA was found not guilty, was alleged to have taken place between 31 December 2010 and 1 March 2011. The conduct the subject of counts 6 and 8 took place after that (between 30 April 2011 and 1 September 2011 for count 6 and between 31 July 2011 and 10 August 2011 for count 8). The conduct alleged in counts 7 and 9 was conduct occurring at the conclusion of the offences the subject of counts 6 and 8 respectively.

9. As noted earlier, the jury returned guilty verdicts on counts 6 and 8. TA was sentenced on count 6 to a fixed term of imprisonment of 18 months, commencing on 16 July 2013 and expiring on 15 January 2015. On count 8, he was sentenced to a term of imprisonment of 3 years, with a non-parole period of 18 months commencing on 16 January 2014 and expiring on 15 July 2015 and the balance of term expiring on 15 January 2017.

Defence case at trial

10. TA, as was his right, did not give evidence in the proceedings. The defence case, as put through the cross-examination of NA, was that NA had either made up the incidents or that the intercourse was consensual and she had fabricated the allegations of lack of consent, or her allegations of communicating her lack of consent to TA. It was suggested that NA had made the complaints to the police in order that two of the couple’s children (who had been taken from her by TA in the intervening period) be returned to her care and to ensure that she retained the custody and care of all of their children.

Ground 1 – unreasonable convictions by reason of inconsistency

11. The sole ground of appeal, amended to reflect the manner in which it was confined during oral submissions by TA’s Counsel, is that:

1. The convictions of the appellant in relation to counts 6 and 8 are, in the light of the appellant’s acquittal in respect of count 5, unreasonable within the meaning of s 6(1) Criminal Appeal Act1912.

12. In MFA v The Queen ([2002] HCA 53; (2002) 213 CLR 606), the High Court analysed the legal principles to be applied where the complaint is that the verdict is unreasonable and confirmed that unreasonableness is determined according to the test articulated in M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 493-494, namely, whether the 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 (see also: Jones v The Queen [1997] HCA 56; (1997) 191 CLR 439 at 452). In MFA v The Queen, Gleeson CJ and Hayne and Callinan JJ said (at [35]) that this test “must be applied in deciding whether a conviction on one or more counts of sexual offences, when the accused was acquitted on other counts, is unreasonable, or cannot be supported, having regard to the evidence”.

13. In TK v R ([2009] NSWCCA 151; (2009) 74 NSWLR 299) Simpson J (as her Honour then was), with whom McClellan CJ at CL and Latham J agreed, suggested (at [135]) that where the circumstance said to create the unreasonableness of the verdict is inconsistency:

… [t]he issue is not only whether the verdict was open “upon the whole of the evidence”. It is whether the verdict was open on the whole of the evidence, and having regard to all relevant facts and circumstances, including the circumstance that the jury acquitted on one or some counts, whatever (if anything) can be discerned as the explanation for the acquittals, and whatever insight can be gained into the jury’s thinking and reasoning. It is only where the only reasonable explanation for the acquittals is doubt about the complainant’s veracity that an appellate court would be obliged to take the approach taken in Jones (and in Norris). (emphasis as per original)

14. Her Honour emphasised (at [136]) the caution that an appellate court ought exercise before concluding that the explanation for differential verdicts is compromise, since inherent in such a conclusion is the further conclusion that the jury has acted contrary to its duty and to the instruction it has been given. Her Honour noted that the criminal justice system depends upon its faith in juries adhering to their obligations, as explained to them, and acting in conformity with those obligations.

15. In Dungay v R; R v Dungay [2010] NSWCCA 82, Giles JA (RS Hulme and Latham JJ agreeing) considered what had been said by Simpson J in TK v R and said (at [11]-[12]):

It is not necessary to explore whether there is truly an addendum to the test derived from M v The Queen, or only an additional dimension within that test. Consistency or inconsistency of verdicts will always come down to what was open to the jury upon the whole of the evidence. Examination of the evidence, with an appreciation of how it was presented and left to the jury, will reveal whether there is a rational explanation for a verdict of guilty on one count and a verdict of not guilty on another count. In MFA v The Queen, for example, it was held at [36] that there was an explanation in the evidence of the differences between the verdicts, and that it was therefore open to the jury to be satisfied beyond reasonable doubt of guilt on two counts notwithstanding unwillingness to convict on the other counts.

If a rational explanation can not (sic) be discerned, it can be said that it was not open to the jury upon the whole of the evidence to be satisfied beyond reasonable doubt in coming to the guilty verdict, or it can be said that there was otherwise a miscarriage of justice. The formulation will rarely be of moment, and is not in the present case. Ultimately, as Wood CJ at CL pointed out in R v Markuleski [2001] NSWCCA 290; (2001) 52 NSWLR 82 at [237], on reviewing the entirety of the case the court may maintain a comfortable satisfaction as to the guilty verdict upon the evidence separately considered concerning it.

16. In Raumakita v R [2011] NSWCCA 126; (2011) 210 A Crim R 326, Johnson J said (at [35]) that the focus of enquiry, where an unreasonable verdict ground is said to be supported by a claim of inconsistent verdicts, is upon whether there is any explanation for an acquittal, not for a conviction. His Honour there noted (at [36]) that it is only where inconsistency rises to the point that intervention is necessarily required to prevent a possible injustice that the relevant conviction would be set aside (citing Dungay v R; R v Dungay at [22]; Still v R [2010] NSWCCA 131 at [57]-[81]).

17. In the present case, having regard to the narrowed scope of the sole ground of appeal sought to be raised, it is necessary to consider the conduct alleged in count 5 and to see whether there is a rational explanation for the acquittal on that count but not on counts 6 and 8.

18. At the outset, I note that there was no complaint as to the directions given by the trial judge. His Honour correctly directed the jury on two occasions (in his summing up both on 2 and 5 August 2013) that: they must make a decision on each of the charges separately and only in relation to the evidence concerning that offence; that (in accordance with R v Markuleski [2001] NSWCCA 290; (2001) 52 NSWLR 82) if they had a concern about the credibility and reliability of the complainant, and that led them to returning a verdict of not guilty in respect of one count, then it would be essential that they give consideration and weight to that when considering another count in the indictment; and (in accordance with R v Murray (1987) 11 NSWLR 12) that they should approach with caution and scrutinise carefully the evidence of the complainant, given that she was the sole source of the complaints. His Honour also made reference to the aspects of NA’s evidence that the defence maintained significantly called into question her reliability (see summing up at pp 51-55).

Conduct the subject of the respective counts

19. Counts 1, 2 and 4, which TA does not suggest are inconsistent with the guilty verdicts on counts 6 and 8, related to allegations of sexual intercourse without consent in 2000, 2004 and the second half of 2010, respectively. Count 4, which again is not relied upon by TA as an inconsistent verdict, related to an allegation that TA had touched NA on her left thigh with a Taser-like object when in the family car on an occasion in the second half of 2010. Counts 7 and 9 were of physical assaults following the intercourse the subject of counts 6 and 8. Again, the not guilty verdicts on those counts are not said to be inconsistent with the guilty verdicts on counts 6 and 8.

Count 5

20. The conduct, the subject of this count, like that in counts 6 and 8, was of sexual intercourse without consent knowing that there was a lack of consent.

21. The incident was alleged to have taken place between 31 December 2010 and 1 March 2011 in the family home when NA was folding the washing in the bedroom with her back to the door and the children were in the lounge room. She said that TA came into the room and forcibly shut the door; that he was “smirking”; and that when she turned her back to him TA came behind her, put his hand around her waist and pulled her to him. She said that she could feel TA’s erect penis pressing onto her buttocks; that he pulled her pants and underwear down; and that she resisted, using her right hand to pull her pants back up and telling him “Don’t. Don’t do it”. She said that TA said “I’ll be quick” and she said “The children will hear”. NA said that she continued to hold onto her pants trying to keep them up as TA pulled them down; that he pushed her, bent her over the chair and forcibly engaged in penile/vaginal intercourse. NA said that she told him it hurt her and that the children would hear. She said that then she could feel her vagina tearing. She said it continued for a couple of minutes before TA became angry and thrust harder. She said she told him again that she did not want to do it and that he “withdrew himself because I didn’t show any signs of pleasure” and pushed her onto a chair; her right hand caught the window ledge and her head hit the window and the blinds.

22. In cross-examination, NA accepted that in her statement to the police she had used the word “smiling” not “smirking” to describe TA’s expression and that she had attributed to him the words “come on, come on” rather than “I’ll be quick”. She also accepted that in her statement to the police she did not mention her vagina tearing.

23. Relevantly, for present purposes, NA said in cross-examination that during the incident TA was wearing “church clothing” featuring the “square and compass”. She agreed that, under the tenets of the Mormon faith, it would be offensive to wear those garments while engaging in the alleged act. She also agreed in cross-examination that she had a concern about being seen by the children but she denied that this was her only concern.

Count 6

24. Count 6 was an incident occurring between 30 April 2011 and 1 September 2011.

25. NA’s evidence was that on an occasion in the cooler middle part of 2011 she went to bed in the very early hours of the morning around 2am to 3am. As she got into the bed she felt that she had disturbed TA’s sleep. He put his arm around her and pulled her towards him such that her back was touching the front of his body. She was wearing a long t-shirt style nightie, tights and underwear. TA began to pull down her pants and underwear. She said “I don’t want to, I’m tired” but TA continued to pull her pants down and climbed on top of her, turning her body so that she was lying on her back. TA straddled her with his knees on either side of her legs and began trying to force his penis into her vagina; he then placed his right knee in between her legs followed by his left leg forcing them apart. NA said that throughout this she said “I don’t want to”. TA engaged in penile/vaginal intercourse for about five minutes and ejaculated. She said that she ended up lying sideways across the bed with her head off the mattress looking backwards towards the blinds and she could see the street light; TA was still sitting on top of her with his legs positioned outside of her thighs. NA said she was quietly crying and that TA asked “what’s wrong” and she said “nothing”. She said that as TA went to get off he kneed her with his right knee (this was the subject of count 7) and he said “I should have gone to a prostitute”.

26. NA agreed that her police statement only referred to her saying “No, I’m tired”. It was suggested to her that, if she was kneed by TA, it was purely accidental as he rolled off her.

Count 8

27. Count 8 was an incident occurring between 31 July 2011 and 10 August 2011, three or four days prior to when NA was scheduled to have surgery to remove her right ovary. She suffered from endometriosis and polycystic ovarian syndrome. In the lead up to the surgery NA was in a lot of abdominal pain.

28. Count 8 occurred during the night at around about the same time as the offence in count 6. NA was wearing the same style of nightie and underwear. TA pulled her underwear down with his hand and used his foot to push them down to her ankles. She unsuccessfully tried to pull her underwear up. She told him “I don’t want to. I am in pain”. TA climbed on top of her and knelt between her legs with his hands close to her upper arms. He engaged in penile/vaginal intercourse. She told him “I don’t want to” two or three times. She said that during this time her head was banged up against the bed head and she was crying and sobbing. She also said that it was excruciatingly painful as she had an inflamed pelvis which made sexual intercourse very painful. She said that TA ejaculated and got off her and then forcibly kicked her in between her calf muscle and her knee with his right leg (the kick being the subject of count 9).

29. In cross-examination NA said that, prior to the incident, when she became aware of her endometriosis and the fact that she needed to have an ovary removed, she had a conversation about that with TA. She said he knew of her condition. There was then the following exchange in cross-examination:

Q.   It’s possible, isn’t it, that there was an agreement between you that there would be no sex in that fashion until such time as you were fully recovered?

A.    Yes.

Q.    That’s in fact what happened, wasn’t it?

A.    No.

30. In relation to each of counts 5, 6 and 8, NA denied the possibility that she did consent and denied the possibility that she did not communicate a lack of consent. NA agreed that she was upset that her husband had taken two of the children home with him on New Years’ Day in 2012 and that she wanted the children returned to her care. She also agreed in cross-examination that she did not raise any complaint regarding the allegations with police until 4 January 2012. She denied that the whole case was about allegations made to the police that were designed to get her children back without having to go through the Family Court.

Applicant’s submissions

31. TA submits that NA’s evidence in relation to count 5 did not lack any more detail than counts 6 and 8 which might have given the jury reason to pause. He submits that all of the counts were described by the complainant in a “fairly general fashion” and therefore, once the jury were not satisfied beyond reasonable doubt about the veracity and accuracy of her evidence on count 5, the jury must reasonably have harboured similar doubts in relation to counts 6 and 8.

32. He points out that in relation to count 5 (as was also the case in counts 6 and 8) there was no other forensic or corroborative evidence; the case being solely reliant on NA’s evidence. It is submitted that a finding of not guilty on count 5 could only have come about as a result of the rejection of the complainant’s evidence because it lacked credibility.

33. It is further submitted that on one view the strength of the Crown case on count 5 was stronger than that on count 6 because, in evidence in chief in respect to count 6, NA provided some evidence that TA may have lacked knowledge as to her absence of consent in that she said that, after the alleged sexual assault, he had asked her what was wrong.

34. TA’s complaint is that once the jury found NA’s evidence lacked sufficient credibility to convict on count 5, it is impossible to understand why the jury chose to accept her evidence about the alleged acts of sexual intercourse in relation to counts 6 and 8.

Crown submissions

35. The Crown places emphasis on the evidence given by NA as to the agreement that they would not have sexual intercourse until she was fully recovered from her forthcoming operation as probative both of NA’s lack of consent and of TA’s knowledge of her lack of consent to sexual intercourse. It was submitted that it was open for the jury to consider that the agreement was in existence at the time of the incident in count 6 as well as count 8, due to the time frame of both counts, and for the jury to have concluded that TA was well aware that the act of sexual intercourse at that time was something that caused NA extreme pain and that he had agreed not to have sexual intercourse with her from the time she was diagnosed with endometriosis until after she had recovered from surgery.

36. The Crown notes that there were only minor inconsistencies between NA’s evidence and her earlier statement to the police; that she had provided more detailed and persuasive evidence as to the lack of consent in relation to those counts than in relation to the other alleged sexual assault counts; and that on NA’s evidence she clearly expressed her lack of consent from the beginning rather than withdrawing consent part way through the sexual acts.

37. The Crown submits that the not guilty verdict on count 5 (and the other counts) is reflective of the jury’s compliance with judicial directions and not solely or principally attributable to doubt about NA’s credibility. In particular, reference is made to the evidence given by NA as to TA wearing “Church clothing” during the alleged sexual assault the subject of count 5.

Determination

38. The relevance of the agreement to abstain from sexual intercourse until NA’s medical condition had been treated and she had recovered from the surgery scheduled for 10 August 2011 is that it provides a rational basis for, and corroboration of, NA’s evidence that she did not consent to sexual intercourse at around that time and for the jury reasonably to conclude that TA was aware of her lack of consent. The question is not, as Counsel for TA submitted, whether the absence of an agreement to abstain from sexual activity at the time of the incident in count 5 is something that could lead a reasonable jury to conclude that the quality of the evidence for count 5 was diminished or that the quality of the evidence for counts 6 and 8 was in some way improved or enhanced (see T 5.23-29; T 6.17-33). It was evidence that provides a rational explanation for the jury to have accepted NA’s evidence on counts 6 and 8 even though the jury was not satisfied beyond reasonable doubt of TA’s guilt on count 5.

39. Similarly, the evidence that TA was wearing Church clothing at the time of the incident in count 5 provides a rational explanation for the jury not to be satisfied beyond reasonable doubt that what occurred on that occasion was without consent or that TA was aware of a lack of consent at that time. The suggestion that TA might equally have been wearing Church clothing at the time of the incidents in counts 6 and 8 was not put to NA in cross-examination and seems inherently implausible since he was in bed and asleep prior to those incidents.

40. Those differences between count 5 on the one hand and counts 6 and 8 on the other hand provide a rational explanation for the different verdicts on those counts. Certainly, having regard to the caution that it is recognised an appellate court should exercise before concluding that the jury has acted contrary to its duty and contrary to the clear directions given by the trial judge, it cannot be said that the evidence demonstrates that no reasonable jury applying their minds to the evidence could have arrived at the differential verdicts (as the question was framed in Osland v R [1998] HCA 75; (1998) 197 CLR 316) nor has it been demonstrated that there is inconsistency rising to the point where intervention is required to prevent a possible injustice.

41. In those circumstances, were leave to appeal be granted I would dismiss the appeal.

42. That brings me back to the application for an extension of time for the filing of the notice of application for leave to appeal. There was no satisfactory explanation for the overall delay in commencing the proceedings, although a partial explanation was proffered. An application for such an extension must of course be determined by reference to the interests of justice (O’Grady v R [2014] HCA 38; (2014) 254 CLR 621). In circumstances where the sole ground of appeal now sought to be pressed (if leave to appeal is granted) has been shown to have no merit, refusal of the application for an extension could not be said to occasion any injustice. That said, the merits of the proposed appeal have been argued and considered. I consider the appropriate course is to grant the extension of time for the filing of the application for leave to appeal and to dismiss the application for leave to appeal.

43. I propose the following orders:

1. Extend time for the filing of the notice of application for leave to appeal to 4 March 2015.

2. Dismiss the application for leave to appeal.

44. JOHNSON J: I agree with Ward JA.

45. GARLING J: I agree with Ward JA.

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Decision last updated: 19 June 2015