The Director of Public Prosecutions v Brian Gordet Maan

[2010] ACTCA 27

THE DIRECTOR OF PUBLIC PROSECUTIONS v BRIAN GORDET MAAN
[2010] ACTCA 27 (29 November 2010)

APPEAL – criminal law – test for a finding of guilt – whether trial judge compartmentalised evidence – crown case dependent on evidence of complainant – two competing versions of events – trial judge forced to concentrate on competing versions – no error of law – appeal dismissed

APPEAL – criminal law – evidence of consciousness of guilt – whether case circumstantial – whether trial judge compartmentalised evidence – no error of law – appeal dismissed

APPEAL – criminal law – corroboration evidence – whether or not independent evidence supporting complainant’s version could be found – issue of fact – no error of law – appeal dismissed

Supreme Court Act 1933 (ACT) s37S, s 68C.

Chamberlain v The Queen (No 2) (1984) 153 CLR 521
Edwards v The Queen (1993) 178 CLR 193

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 2 - 2010
No. SCC 168 of 2008

Judges:        Rares J, Mathews and Teague AJJ
Court of Appeal of the Australian Capital Territory
Date:           29 November 2010

IN THE SUPREME COURT OF THE     )          No. ACTCA 2 - 2010
  )          No. SCC 168 of 2008
AUSTRALIAN CAPITAL TERRITORY           )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:THE DIRECTOR OF PUBLIC PROSECUTIONS

Appellant

AND: BRIAN GORDET MAAN

Respondent

ORDER

Judges:  Rares J, Mathews and Teague AJJ
Date:  29 November 2010
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal be dismissed.

IN THE SUPREME COURT OF THE     )          No. ACTCA 2 - 2010
  )          No. SCC 168 of 2008
AUSTRALIAN CAPITAL TERRITORY           )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:THE DIRECTOR OF PUBLIC PROSECUTIONS

Appellant

AND:BRIAN GORDET MAAN

Respondent

Judges:  Rares J, Mathews and Teague AJJ
Date:  29 November 2010
Place:  Canberra

DRAFT REASONS FOR JUDGMENT

THE COURT:

Background

1. This is a reference appeal brought by the Director of Public Prosecutions pursuant to s 37S of the Supreme Court Act 1933 (ACT). 

1. The background of the matter is as follows.  On 22 September 2009 the respondent, Brian Maan, pleaded not guilty on indictment to the following charges:

... on the 19^th day of May 2007 at Canberra [he] attempted to engage in sexual intercourse with [the complainant] without the consent of [the complainant] and was reckless as to whether she had consented.

... on the 19^th day of May 2007 at Canberra [he] committed an act of sexual intercourse with [the complainant] without the consent of [the complainant] and was reckless as to whether she had consented.

... on the 19^th day of May 2007 at Canberra [he] attempted to engage in sexual intercourse with [the complainant] without the consent of [the complainant] and was reckless as to whether she had consented.

... on the 19^th day of May 2007 at Canberra [he] committed an act of indecency upon [the complainant] without the consent of [the complainant] and was reckless as to whether she had consented.

1. The respondent elected for trial by judge alone and the trial then proceeded before the primary judge.  The evidence occupied some three hearing days, followed by addresses.  On 7 December 2009 his Honour entered a verdict of acquittal in respect of each count in the indictment.  As required in this situation, his Honour gave written reasons for his findings, setting out the principles of law which he applied and the findings of fact on which he relied (s 68C Supreme Court Act).

1. The details of the prosecution case were set out in the filed case statements which constituted the Crown’s opening address. His Honour summarised that statement in the following terms:

4.In summary, it was alleged that the accused met up with the complainant and [Witness A] at Academy Night Club in the early hours of Saturday 19 May 2007.  They had all been students together at Daramalan College some years previously.

5.The three then proceeded by taxi to the complainant’s residence which she shared with her parents.  The complainant had agreed with [Witness A] that she could stay the night.  It appears that, before a decision as to whether the accused would stay was made, the taxi left.

…

7.Sometime during the night, around 6.20 am, the complainant was wakened by the accused pulling down her pants.  She felt his penis being pressed between her bare bottom cheeks.

8.That is alleged to comprise the offence charged in count one or, if that not be made out, count two.

9.The complainant resisted strongly, hitting the accused and loudly swearing at him telling him to get off her.

10.Instead of getting off her, the accused positioned himself straddling her face, grabbing it and pressing his penis against her lips.  She again resisted.  He then desisted.  She grabbed a mobile phone and called for a taxi to take the accused away, loudly telling him to leave.

11.That conduct of the accused is alleged to comprise the offence charged in count three or, if that not be made out, then count four.

12.The complainant’s mother, whose name I suppress to protect the complainant’s identity, heard the sound of raised voices and heard the front door close.

13.The complainant attempted to wake [Witness A] without success.  She phoned a friend, [Witness B], and complained to her of the accused’s conduct.  She then telephoned her boyfriend, [Witness C], who was then in France, and complained to him.  [Witness A] then woke up and the complainant also told her of her complaint.  She also texted [Witness D], another friend, with a complaint about the accused.

14.Police were not summoned to attend until 22 May 2007, according to police records.  They then seized bedding, clothing, the complainant’s mobile phone and a pair of men’s underpants which were identified by DNA analysis to be consistent with belonging to the accused.

Course of the Trial

1. The complainant gave evidence before his Honour from a remote location.  Her account was generally similar to that contained in the case statement, although considerably more detail was provided, both about the incident itself and the surrounding circumstances.  The complainant’s mother also gave evidence in which she said that she heard the sound of raised voices coming from the complainant’s bedroom and then the front door shutting.  She went to the complainant’s bedroom.  The complainant was sitting up in bed and Witness A was fast asleep.  She asked, “Is all okay?” to which the complainant replied, “All’s okay.”

1. Witness A also gave evidence in the Crown case.  She said that she was a heavy sleeper and heard nothing before she woke up at about seven o’clock to find the respondent gone and the complainant crying and talking on the phone.  The complainant then told Witness A that the accused had tried to have sex with her.

1. Witness A gave an account of what happened before they went to sleep which contradicted the evidence of the complainant.  It is unnecessary for present purposes to go through the details of this evidence.

1. The remaining evidence in the Crown case consisted of oral evidence from persons whom the complainant had told about the accused’s sexual advances.  Evidence was also given about the calling of taxis on the morning in question.  This has relevance to one of the grounds of appeal, and we shall be referring to it later.

1. His Honour in his judgment expressed reservations about certain aspects of the Crown case, but went on to say that, had the evidence concluded at the end of that case, there would have been insufficient material to cause him to doubt the essential truth of the complainant’s evidence.  That would have led to a finding, beyond reasonable doubt, that the respondent was guilty of the principal offences of which he was charged.  Certain of his Honour’s comments when making these observations are the subject of another ground of appeal, and we shall be returning to them later.

1. There was, however, further evidence at the trial.  The respondent chose to give sworn evidence.  He admitted going to the complainant’s home with the complainant and Witness A and sharing a bed with the two of them.  He gave an explanation for removing his underpants during the night, and denied making any sexual advances to the complainant.  He said that early the next morning she offered to ring a taxi for him which she then proceeded to do.  He waited outside her home for six or seven minutes but when no taxi arrived he walked “down the hill” and caught another cab.

1. The respondent was a person of prior good character.  Two witnesses were called in the defence case to testify to his good character. 

1. His Honour in his judgment described the evidence which had been given in the trial and then proceeded to discuss the evidentiary issues which had been raised and his findings in relation to them.  He concluded that it was not possible to find beyond reasonable doubt that the respondent was guilty.  Accordingly, he entered a verdict of not guilty in respect of each charge.

Grounds of Appeal

1. The grounds of appeal relied upon by the Director of Public Prosecutions are as follows:

   a)His Honour erred in holding that in order to find guilt it is necessary to find not only that the complainant’s account is completely convincing but also that the sworn denials of the accused are so unconvincing that a conclusion may be reached as to guilt beyond reasonable doubt;

   b)His Honour erred in considering evidence of consciousness of guilt in isolation from the other evidence;

   c)His Honour erred in holding that the complainant’s evidence was not corroborated by any independent evidence not emanating from her;

2. A fourth ground contained in the original notice was not pressed by the Crown.

1. We shall discuss each of these in turn.

The Ultimate Finding Issue

1. The appellant submitted that his Honour erred in law by posing a two stage test for a finding of guilt.  In this regard, it relied on paragraphs 100 to 103 of his Honour’s judgment.  Those paragraphs are as follows:

100.Nevertheless, I accept that in order to find guilt it is necessary to find not only that the complainant’s account is completely convincing but also that the sworn denials of the accused are so unconvincing that a conclusion may be reached as to guilt beyond reasonable doubt (see Question of Law Reserved on Acquittal (No 1 of 1993) (1993) 59 SASR 214, 218).

101.It must be emphasised that it is not necessary for a verdict of acquittal that I be persuaded that the accused’s account is, or is even probably, truthful (see R v E (1995) 89 A Crim R 325 (NSW), 330).

102.Other criticisms were levelled by [counsel for the respondent] at the complainant’s evidence, however, they do no more than support the view that in the context of the sworn denials of a man of good character, it is not possible to conclude beyond reasonable doubt that the accused is guilty as charged.

103.Accordingly, I record a verdict of not guilty in respect of each count on the indictment.

1. The appellant submitted that these passages showed that his Honour was compartmentalising the evidence, looking first at the complainant’s account and then, separately, at the respondent’s account.  What he should have done, the appellant submitted, was consider the whole of the evidence and determine whether the Crown case was established to the requisite degree.  As the Director said in oral submissions, “One cannot compartmentalise the versions, one has to compare them.”

1. However, we do not take his Honour’s remarks as indicating that he took an impermissible two stage approach in determining whether the Crown had established the guilt of the respondent.  All that his Honour did was to assess the competing versions in the case, with an appreciation that a finding that the complainant’s evidence was convincing would be insufficient to establish guilt if it was countered by defence evidence which was sufficient to raise a reasonable doubt.  The respondent’s denials in this case, being “sworn denials of a man of good character” were sufficient for that purpose.

1. As will emerge from our discussion of the second and third grounds of appeal, the Crown case against the respondent was entirely dependent upon the evidence of the complainant.  Other than evidence of flight, which his Honour rightly considered to be of minimal weight in the circumstances, all the evidence in the Crown case emanated from the complainant herself.  It follows that his Honour was forced to concentrate on the two competing versions of events.  Indeed the Director himself, in his oral submissions relating to the second ground of appeal, said, “The real test is, in our submission, whether on the whole of the evidence the complainant’s version could be accepted and the accused’s version rejected”.  This is precisely the test which was posed by his Honour in the passages complained of by the Crown.

1. The process of evaluation, by a tribunal of fact, of the credibility and reliability of the evidence given by witnesses to a disputed event cannot be arrived at by a precise or single scientific process that must be applied in every case.  The reasoning process used by a fact finder in assessing and finding evidence that should be accepted often can involve close analysis of what the written or oral evidence contains.  In an oral trial, the demeanour of witnesses, their manner, modes of expression and personalities, as displayed in the witness box while testifying, can influence a fact finder, consciously and unconsciously.  In trials by judge alone, he or she must give reasons for his or her decision.

1. But the process of choosing what evidence to accept when a judge is confronted by conflicting accounts of two apparently credible witnesses (or, in a criminal trial, where one witness who is credible and the other who is not wholly incredible) cannot always be explained in the same way as the selection of a rule of law or legal principle.  Appellate courts must allow judges some latitude in their choices of expression for explaining why they made credibility based findings.  This is because there is no, and should not be any, a priori formula for doing so.

1. The manner in which the primary judge reasoned in arriving at his finding that the Crown had not satisfied him beyond reasonable doubt of the respondent’s guilt was sufficiently and, in the circumstances, appropriately explained in his Honour’s reasons.

1. In our opinion, no error of law has been demonstrated in relation to this ground.

Evidence of consciousness of guilt

1. At the trial, the Crown adduced evidence which it submitted showed that the respondent had left the complainant’s home very quickly.  This was relied upon as supporting the proposition that his departure was motivated by a consciousness of guilt, thus providing additional support for the complainant’s allegations.

1. In brief, this evidence consisted of the fact that the respondent had left his underpants in the complainant’s bedroom, together with evidence as to the calling of taxis.  At 6.36 am the complainant telephoned a taxi to collect the accused from her address.  Records showed that the taxi arrived at her home at 6.47 am but there was no sign of the respondent.  At 6.48 am the respondent telephoned a taxi from a different location, which duly arrived and collected him.

1. The respondent in his evidence gave an explanation for taking off his underpants during the night and leaving them at the complainant’s home.  As to the taxi, he said that he waited outside the complainant’s home for six or seven minutes, and when no taxi arrived he left and found one somewhere else.

1. His Honour dealt with this aspect of the evidence in the following passages of his judgment:

92.Mr Gill, for the accused, submitted that little weight could be attached to the fact that the accused called a taxi from a distance away from the complainant’s home.  It did not unequivocally bespeak a consciousness of guilt, particularly as there was no evidence to contradict the assertion of the accused that he waited outside the complainant’s home for 6 – 8 minutes, before walking off and calling a taxi himself.

93.Clearly, as Mr Gill pointed out, evidence of flight from the scene is a slender support for the Crown case unless it unequivocally points to consciousness of guilt (see R v Bridgman (1980) 24 SASR 278). Similarly, evidence of the distressed condition of a complainant, whilst consistent with the Crown case, should be accorded little weight (see R v Redpath (1962) 46 Cr.App.R 319, 321; R v Knight (1966) 50 Cr.App.R 122, 125).

1. The applicant submitted that these passages revealed a “fundamental error” in that his Honour considered the consciousness of guilt evidence separately from the other evidence “as if it were in an hermetically sealed compartment”.  This evidence was another circumstance which, the appellant submitted, should have been considered by his Honour together with all the other circumstances in the trial.

1. The appellant’s written submissions went on to categorise the case against the respondent as a circumstantial case.  On this basis, it was submitted that the whole of the evidence should have been considered by his Honour, and no single piece of evidence should have been rejected because, considered alone, no inference of guilt could be drawn from it.  (Chamberlain v The Queen (No 2) (1984) 153 CLR 521). The submissions went on to quote from the judgment of Deane, Dawson and Gaudron JJ in Edwards v The Queen (1993) 178 CLR 193 at 210:

Although guilt must ultimately be proved beyond all reasonable doubt, an alleged admission constituted by the telling of a lie may be considered together with the other evidence and for that purpose does not have to be proved to any particular standard of proof.  It may be considered together with the other evidence which as a whole must establish guilt beyond reasonable doubt if the accused is to be convicted.  If the lie said to constitute the admission is the only evidence against the accused or is an indispensable link in a chain of evidence necessary to prove guilt, then the lie and its character as an admission against interest must be proved beyond reasonable doubt before the jury may conclude that the accused is guilty.  But ordinarily a lie will form part of the body of evidence to be considered by the jury in reaching their conclusion according to the required standard of proof.  The jury do not have to conclude that the accused is guilty beyond reasonable doubt in order to accept that a lie told by him exhibits a consciousness of guilt.  They may accept that evidence without applying any particular standard of proof and conclude that, when they consider it together with the other evidence, the accused is or is not guilty beyond reasonable doubt.

1. These statements of the law are clearly applicable in cases based on circumstantial evidence.  The real problem with the appellant’s argument is that this was not such a case.  Here, there was direct evidence from the complainant which, if accepted, was sufficient to establish the guilt of the accused.  It is only when no such evidence is available, and the jury is asked to draw inferences of guilt from the totality of the evidence, that the case can be categorised as a circumstantial case. 

1. The real crux of the appellant’s complaint in relation to this part of his Honour’s summing up appears to arise from his Honour’s reference to the evidence as failing to “unequivocally” point to consciousness of guilt.   The appellant submitted that his Honour’s use of this word meant that his Honour was compartmentalising this evidence, and then rejecting it as irrelevant unless it met the high standard imposed by the word “unequivocally”.

1. In our opinion this submission misstates the approach in fact adopted by his Honour.  In the passages referred to by the appellant, his Honour was not purporting to dismiss evidence of flight as an irrelevant consideration.  Rather, he was referring to the weight to be attached to this evidence in the particular circumstances of this case.  This is clear from the opening words of paragraph 92, where his Honour referred to Mr Gill’s submissions that “little weight” could be attached to the evidence relating to the calling of a taxi.  In the following paragraph, his Honour referred to evidence of flight providing “slender support for the Crown case unless the evidence unequivocally points to consciousness of guilt” (emphasis added). In other words, his Honour was exposing his reasons for attaching little weight to the evidence of flight in the overall context of the Crown case. This he was not only entitled to do, but was bound to do under s 68C of the Supreme Court Act.

1. In the circumstances, we can find no error in the manner in which his Honour dealt with this issue. 

The Corroboration Issue

1. The third ground of appeal relates to a comment made by the primary judge when he was referring to the state of the evidence at the close of the Crown case.  His Honour said:

69.Nevertheless, had there been no further evidence, I would have concluded that those matters were insufficient to cause me to doubt the essential truth of the complainant’s evidence.  It is, of course, not corroborated by any independent evidence not emanating from her but I found her presentation to be that of a truthful witness.

1. It is the second sentence to which objection was taken.  No point was taken in relation to his Honour’s use of the word “corroborated”, which was assumed to mean “supported”.  However the appellant submitted that his Honour was in error in that there was in fact a “significant body” of independent evidence which supported the complainant’s evidence.  It was also submitted that his Honour’s comment betrayed a “fundamental misunderstanding of the nature of the circumstantial case”.

1. The present case was not, as we have already said, a circumstantial case.

1. We do not propose to discuss this ground at any length.  If any error had been demonstrated in the passage complained of, it would almost certainly have been an error of fact not law.  However, in our opinion no error has been shown.

1. The appellant submitted that, contrary to his Honour’s statement, independent evidence supporting the complainant’s version was to be found in:

… the evidence of the complainant’s mother as to hearing shouting and yelling, aspects of [Witness A]’s evidence, aspects of the phone records, the complaint evidence of other witnesses and the evidence of flight.

1. However, his Honour had dealt with all these pieces of evidence.  He had referred to the complainant’s mother’s evidence and to the fact that the voices she had heard “had been insufficient to cause serious alarm.”  There was nothing at all in Witness A’s evidence to support the complainant’s account that the respondent had sexually assaulted her.  The respondent never denied that the three of them had slept in the same bed together, which was virtually the only evidence Witness A was able to give in support of the complainant’s version.  As to the evidence of flight, his Honour had already found that this should be accorded minimal weight.  The only remaining evidence consisted of the various complaints made by the complainant.  These could hardly be described as “independent evidence not emanating from her.”

1. In our opinion no error has been demonstrated in relation to this ground.

1. Accordingly, we would dismiss the appeal.

   I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

   Associate:

   Date:    29 November 2010

Counsel for the Appellant:  Mr J White
Solicitor for the Appellant:  Director of Public Prosecutions for the ACT
Counsel for the Respondent:  Mr S Whybrow
Solicitor for the Respondent:  Director of Public Prosecutions for the ACT
Date of hearing:  2 November 2010
Date of judgment:  29 November 2010