Tullock v The State of Western Australia
[2022] WASCA 13
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: TULLOCK -v- THE STATE OF WESTERN AUSTRALIA [2022] WASCA 13
CORAM: BUSS P
MAZZA JA
ALLANSON J
HEARD: 21 JANUARY 2022
DELIVERED : 11 FEBRUARY 2022
FILE NO/S: CACR 70 of 2021
BETWEEN: RONALD KENNETH TULLOCK
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: BURROWS DCJ
Citation: THE STATE OF WESTERN AUSTRALIA v RONALD KENNETH TULLOCK
File Number : IND 1358 OF 2020
Catchwords:
Criminal law - Application for leave to appeal against conviction - Whether conviction on second count inconsistent with acquittal on first count - Whether conviction unreasonable or cannot be supported on the evidence - Turns on own facts
Legislation:
Criminal Code (WA)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | No appearance |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Director of Public Prosecutions (WA) |
Cases referred to in decision:
MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348
MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316
JUDGMENT OF THE COURT:
Introduction
The appellant was convicted in the District Court of Western Australia on 19 March 2021 of one offence of aggravated sexual penetration without consent, contrary to s 326 of the Criminal Code (WA).
On 10 June 2021, the appellant filed an appeal notice for an appeal against conviction.
The appellant filed his Appellant's Case on 15 December 2021 which set out the following grounds of appeal:
1.The jury did not find me guilty without reasonable doubt.
2.All elements of this charge was not proven. Because I was found not guilty of the first charge therefore the jury believed my story of events about what really happened.
In effect, the appellant contended that his conviction was inconsistent with the verdict of the jury on the first charge in the indictment, and was unreasonable or could not be supported having regard to the evidence.
The charge and trial
The appellant was charged on an indictment dated 9 April 2021 with two charges:
(1)On 6 January 2020, at Perth, with intent to commit an indictable offence, namely sexual penetration without consent, he administered a stupefying drug to [KJ].
(2)On the same date and at the same place, he sexually penetrated [KJ] without her consent but penetrating her vagina with his penis
And that [KJ] was a child under 16 years.
The State's case at trial was that the appellant met KJ in the city. She was then already heavily intoxicated. The State alleged that KJ went with the appellant to a car park where he injected her with benzodiazepine and sexually penetrated her while she was stupefied by that drug.
KJ was 15 years old at the time of the offence. She gave evidence that earlier in the day she was drinking with her mother and they shared a 'goon bag' (she thought four litres). She said that she could not recall much about what happened before she went to the city on 6 January 2020. She went into the city with her mother, but did not want to leave with her. She said in cross examination, 'I was just really drunk and I wanted to stay with my friends for a bit'.[1]
[1] ts 67.
KJ said she went to Yagan Square where she met the appellant. The appellant was then 45 years old. He had alcohol (an alcopop) with him and KJ asked for a 'swig'.[2]
[2] ts 68.
KJ said that she went with the appellant to a car park near the train line. She said she waited on the stairs of the car park while the appellant left her to get a smoke. KJ could not say for sure how long she waited. She said, 'I was so drunk, honestly. I didn't know what I was doing'.[3]
[3] ts 71.
KJ denied having consensual sex with the appellant and said she was 'passed out when it happened'.[4] KJ said she woke up when the appellant poured water on her face.
[4] ts 72.
KJ said that before the appellant had sex with her, the appellant put a needle into her hand.[5] She said that when he did that she was too drunk to move.[6]
[5] ts 73.
[6] Pre-recorded interview. See ts 455.
The prosecution adduced evidence that samples were taken from KJ and tested for alcohol and benzodiazepine, both of which were detected.[7]
[7] ts 117.
The prosecution also adduced evidence that, on her return to the hostel where she was staying, KJ was seen to be extremely upset and told a hostel worker that she had been raped in a car park in the city.[8]
[8] ts 87 - 88.
Medical evidence at trial was to the effect that KJ had a percentage of alcohol in her blood, calculated to the period in which the offence was committed, of between 0.18% and 0.23%. In findings for the purpose of sentencing, the trial judge was satisfied KJ's blood alcohol level would have been close to 0.18% at the time of the offence.[9] Benzodiazepine and cannabis metabolites were also detected in the samples taken from KJ.[10] The evidence was that those drugs were most likely consumed within the previous three days.[11]
[9] ts 507 - 508.
[10] ts 162.
[11] ts 165.
The appellant denied the allegation that he had administered benzodiazepine to KJ. He said that when KJ went with him to the car park, he was trying to obtain a smoking implement for her to use to consume methylamphetamine.[12] He was however unable to obtain one. He denied that KJ was asleep or unconscious. He said, in effect, that KJ initiated sex, and that it was consensual.
[12] This was put to KJ in cross examination. She denied that she wanted the appellant to get a pipe for her to smoke some speed, and said she only drank, and did not do 'that stuff': ts 69.
The appellant's submissions on appeal
The appellant argued that the elements of the two charges overlapped. He submitted that the case against him at trial was based on KJ's evidence that she was unconscious, as a result of the drug he was alleged to have given to her, when the act of sexual penetration occurred. He argued that that the verdict on count 1 meant that the jury believed him, and the prosecution had not proved beyond reasonable doubt that KJ was unconscious.
The appellant submitted that he should have been acquitted on the charge of sexual penetration without consent, and convicted on the alternative charge of sexual penetration of a child over the age of 13 years but under the age of 16 years.
The merits of the appeal
The appellant's proposed appeal turns on his contention that because he was found not guilty of the first charge, the jury believed his evidence that the sexual penetration was consensual, and the jury did not accept KJ's evidence that she was unconscious.
In MacKenzie v The Queen,[13] Gaudron, Gummow and Kirby JJ explained the legal principles with respect to inconsistent verdicts. See also MFA v The Queen.[14]
[13] MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348, 365 - 368.
[14] MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 [33] - [36].
In Osland v The Queen,[15] McHugh J enunciated the following propositions:
(a)When an appellate court sets aside a jury's verdict because it is inconsistent with a verdict of acquittal, the court usually does so for one of two reasons.
(b)First, the verdict of acquittal on one count may necessarily demonstrate that the jury did not accept evidence which it had to accept before it could arrive at the verdict of guilty on another count.
(c)Secondly, it may follow that, in returning a verdict of acquittal on one count, the jury must have accepted evidence that required it to acquit on the count on which it convicted. Sometimes, however, the verdicts may indicate that, if the jury did accept the evidence, it must have misapplied or misunderstood the trial judge's directions of law.
[15] Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316 [116].
Where an appellant who has been convicted alleges that the jury’s verdicts are inconsistent, the appellate court must consider the evidence, the issues at trial and the trial judge's directions to the jury in deciding whether the jury's verdict of guilty on one count is relevantly inconsistent with a verdict of acquittal on another count, and the inconsistency requires the verdict of guilty on which the conviction is based to be set aside because, having regard to the evidence, it is unreasonable or cannot be supported. See s 30(3)(a) of the Criminal Appeals Act 2004 (WA).
The two charges against the appellant overlapped in law: elements of count 1 included that the appellant intended to commit the offence of sexual penetration without consent, charged in count 2. They also overlapped in fact: the evidence was of one incident in which the appellant penetrated KJ when she was intoxicated by alcohol or drugs or both. But the verdict on count 1 is not inconsistent with the finding of guilt on count 2.
To prove sexual penetration without consent, the prosecution did not need to prove that KJ was unconscious or otherwise unable to consent as a result of a drug administered to her by the appellant with the intent to commit that offence. The jury may not have been satisfied that the appellant administered benzodiazepine as alleged, or that he did so with the intent alleged. Giving full effect to the verdict on count 1, the finding that KJ did not give her consent was open on all of the evidence, including KJ's evidence that she did not consent to the appellant sexually penetrating her, her evidence about the amount she had drunk that day and her state of intoxication, and the evidence about the level of alcohol in her blood.
We are satisfied that the verdicts of the jury can stand together. In particular, we are satisfied that a reasonable jury whose members properly applied their minds to the facts of the case could properly have arrived at the verdicts in question. After examining the trial record, in the context of the legal and factual elements of count 1 and count 2, it is apparent that the verdicts are not inconsistent or incompatible in the relevant sense. It was logically and reasonably open to the jury to convict on count 2 despite having acquitted on count 1.
We are satisfied, after examining the trial record and weighing the whole of the evidence, that it was reasonably open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of count 2. The trial record does not require the conclusion that the jury must necessarily have entertained a reasonable doubt in relation to any of the legal or factual elements of the offence. The jury's verdict on count 2 was supported by evidence that the jury was entitled to accept and by inferences that the jury was entitled to draw. In particular, it was reasonably open to the jury to find beyond reasonable doubt that the complainant's evidence in relation to count 2 was truthful, accurate and reliable in all material respects. Also, it was reasonably open to the jury to reject the appellant's version of events in relation to the offence charged in count 2. Our assessment of the matters complained about by the appellant on appeal does not persuade us that the jury, acting reasonably, should have decided that the State had not proved count 2 to the criminal standard. After paying full regard to the consideration that the jury was the tribunal of fact entrusted with the primary responsibility of determining guilt or innocence, and after paying full regard to the consideration that the jury had the very significant advantage of having seen and heard the witnesses, we do not have a reasonable doubt as to the correctness of the jury's verdict on count 2. It would not be dangerous, in the circumstances, to permit the verdict of guilty to stand.
The appeal has no reasonable prospect of success. Leave to appeal should be refused and the appeal dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RK
Research Associate to the Honourable Justice Murphy and the Honourable Justice Mazza
11 FEBRUARY 2022
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