Vunilagi v The Queen
[2021] ACTCA 12
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Vunilagi v The Queen |
Citation: | [2021] ACTCA 12 |
Hearing Dates: | 17 – 18 May 2021 |
DecisionDate: | 9 November 2021 |
Before: | Mossop, Loukas-Karlsson and Abraham JJ |
Decision: | See [279] |
Catchwords: | CRIMINAL LAW – APPEAL – Whether verdicts were unreasonable – whether trial judge could be satisfied of the appellant’s guilt beyond reasonable doubt – where challenge focussed on the reliability of the complainant’s evidence – held: ground dismissed – whether trial judge impermissibly and unfairly introduced evidence into reasoning – evidence to be considered in context – held: ground dismissed. CONSTITUTIONAL LAW – APPEAL – Order for trial by judge alone without an accused’s consent – challenge to the validity of s 68BA of the Supreme CourtAct 1933 (ACT) – whether provision invalidated by Kable doctrine because it compromised the institutional integrity of the Supreme Court – whether the provision was beyond the power of the Legislative Assembly because the reference to “Supreme Court” in s 48A of the Australian Capital Territory (Self-Government) Act 1988 (Cth) required trials on indictment to be by jury – whether s 68BA is invalid by reason of incompatibility with s 80 of the Constitution – held: provision not invalid |
Legislation Cited: | ACT Supreme Court (Transfer) Act 1992 (Cth) Australian Capital Territory (Self-Government) Act 1988 (Cth), ss 22, 48A, Part VA Supreme Court Act1933 (ACT), ss 68B, 68BA, 68C(2), 115, 116, 117 |
Cases Cited: | Alqudsi v The Queen [2016] HCA 24; 258 CLR 203 Attorney-General (NT) v Emmerson [2014] HCA 13; 253 CLR 393 Wong v The Queen [2001] HCA 64; 207 CLR 584 |
Texts Cited: | J Stephen, A History of the Criminal Law of England (Macmillan and Co, 1883) vol 1 W Windeyer, Lectures on Legal History (Law Book Company, 2nd ed (revised), 1957) |
Parties: | ACTCA 40, 47 of 2020 Saimoni Vunilagi ( Appellant) The Queen ( Respondent) The Attorney-General of the Australian Capital Territory (Intervenor) ACTCA 39 of 2020 Ismeli Vatanitawake ( Appellant) The Queen ( Respondent) ACTCA 38 of 2020 Josefa Masivesi ( Appellant) The Queen ( Respondent) |
Representation: | Counsel J Stellios and K Musgrove ( Appellant Vunilagi) B Morrisroe ( Appellant Vatanitawake) S Whybrow ( Appellant Masivesi) S Drumgold SC and K McCann ( Respondent) P Garrison SC, H Younan SC and A Hammond (Intervenor) |
| Solicitors Hugo Law Group ( Appellant Vunilagi) Tim Sharman Solicitors ( Appellant Vatanitawake) Boxall Legal ( Appellant Masivesi) ACT Director of Public Prosecutions ( Respondent) ACT Government Solicitor (Intervenor) | |
File Numbers: | AC 38 of 2020 AC 39 of 2020 AC 40 of 2020 AC 47 of 2020 |
Decisions under appeal: | Court/Tribunal: Supreme Court of the ACT Before: Chief Justice Murrell Date of Decision: 13 August 2020; 9 October 2020 Case Title: R v Vunilagi; R v Vatanitawake; R v Masivesi; R v Macanawai; R v Vunilagi; R v Vatanitawake; R v Masivesi; R v Macanawai (No 2) Citation: [2020] ACTSC 225; [2020] ACTSC 274 Court File Numbers: SCC 24 of 2020; SCC 25 of 2020; SCC 28 of 2020; SCC 54 of 2020 |
THE COURT
Introduction
In the early hours of 3 November 2019, the complainant, a 22-year-old woman, while intoxicated, met and began socialising with the appellants at a bar. The appellants were unknown to her. Ultimately, she went with them to Mr Josefa Masivesi’s one-bedroom unit. The Crown alleged that there, the three appellants engaged in various acts of sexual intercourse and acts of indecency with the complainant without her consent.
On 9 October 2020, following a trial by judge alone before Murrell CJ (R v Vunilagi; R v Vatanitawake; R v Masivesi; R v Macanawai (No 2) [2020] ACTSC 274), the following verdicts were delivered:
(a)Mr Saimoni Vunilagi was found guilty and convicted of seven counts of sexual intercourse without consent (counts 3, 6, 9, 14-17) contrary to s 54 of the Crimes Act1900 (ACT) and one count of act of indecency without consent (count 4) contrary to s 60 of the Crimes Act.
(b)Mr Ismeli Vatanitawake was found guilty and convicted of one count of sexual intercourse without consent (count 5) contrary to s 54 of the Crimes Act; and
(c)Mr Masivesi was found guilty and convicted of an act of indecency (count 11) contrary to s 60 of the Crimes Act and two counts of sexual intercourse without consent (counts 12-13) contrary to s 54 of the Crimes Act.
Each of the appellants appeal their respective convictions on the basis that the verdicts entered against them are unreasonable having regard to the evidence (first ground). They also each allege as a ground of appeal (second ground), that:
The trial judge impermissibly and unfairly introduced evidence into her deliberations that was not before her Honour, were not matters of common knowledge and upon which no submissions had been made or opportunity to make submissions was provided to the defence giving rise to a miscarriage of justice.
In addition, Mr Vunilagi asserts that the trial miscarried because the trial judge’s order for a trial by judge alone was made pursuant to an invalid provision (third ground). This ground of appeal raises questions of both Federal and Territory constitutional law on which the Attorney-General of the Australian Capital Territory (Attorney-General) intervened. Finally, Mr Vunilagi contended that he suffered a miscarriage of justice as a result of the proceedings being tried by judge alone instead of before a jury (fourth ground).
It is convenient to address the first two grounds of appeal before turning to the challenges to the validity of the trial by judge alone. The first two grounds of appeal are somewhat intertwined, and as such ground two will be addressed in the course of dealing with the first ground that the verdicts were unreasonable.
For the reasons below, the appeals are dismissed.
Unreasonable verdicts having regard to the evidence
The test for determining this ground of appeal is well established. The question is whether, upon an independent examination of the evidence, it was open to the trier of fact to be satisfied of the appellant’s guilt beyond reasonable doubt: M v The Queen [1994] HCA 63; 181 CLR 487 at 492-495; The Queen v Baden-Clay [2016] HCA 35; 258 CLR 308 at [65]-[66]. Finding that a verdict is unreasonable requires the appellate court to be satisfied that the trier of fact must, as opposed to might, have entertained a reasonable doubt as to the appellant’s guilt: Libke v The Queen [2007] HCA 30; 230 CLR 559 at [113]; Pell v The Queen [2020] HCA 12; 268 CLR 123 (Pell) at [37]-[39]. In conducting that examination, the appellate court must have regard to the advantage the trier of fact had in seeing and hearing the witnesses.
In this context, reference to the judge’s “finding” is understood to refer to the ultimate finding of guilt or otherwise, as opposed to the findings of fact leading to the ultimate finding: Filippou v The Queen [2015] HCA 29; 256 CLR 47 (Filippou) at [6], [80]. The finding of guilt is not to be disturbed “unless there is no or insufficient evidence to support the finding, or the evidence was all one way, or the finding is otherwise unreasonable, or unless there has been a misdirection leading to a miscarriage of justice”: Filippou at [12]. Irrespective of whether the conviction followed from a trial by jury or judge alone, the question is always whether the ultimate finding of guilt was one which was open to the trier of fact on the whole of the evidence. This court should read the reasons of the trial judge fairly and as a whole.
As this was a trial by judge alone, this court has her Honour’s reasons for reaching the conclusions her Honour did. The availability of reasons for a judge’s decision will inform the consideration of whether it is unreasonable because, unlike in a jury trial, the process of reasoning is exposed: Ford v R [2020] NSWCCA 99 at [56]. Trial by judge alone judgments must include the principles of law applied by the judge and the findings of fact on which the judge relied: s 68C(2) of the Supreme Court Act 1933 (ACT) . The plurality in Filippou proceeded on the basis that, assuming the trial judge has complied with that requirement, the appellate court should have regard to the judge’s reasons: at [48]. In this context, Gageler J observed at [83]:
Irrespective of whether it is applied in an appeal against conviction following a jury trial or in an appeal against conviction following a trial by judge alone, the question under the first limb is always whether the ultimate finding of guilt was one which was open to the tribunal of fact on the whole of the evidence. In some cases of an appeal against a conviction following a trial by judge alone, consideration of the first limb will require the Court of Criminal Appeal to review for itself the totality of the evidence so as to form its own assessment of whether or not it was open to the trial judge to be satisfied beyond reasonable doubt that the accused was guilty without any regard to the reasons for judgment of the trial judge given in compliance with s 133(2). In a case where the argument in the appeal against conviction is that there are particular reasons why it was not open to the trial judge to be satisfied beyond reasonable doubt that the accused was guilty, it may be open to the Court of Criminal Appeal to discharge its appellate function under the first limb by reviewing the evidence and forming its own independent assessment of that evidence to the extent necessary to engage with that argument while adopting, without need for independent assessment, other intermediate findings of fact of the trial judge about which no complaint is made in the appeal. But having adopted the intermediate findings of fact of the trial judge about which no complaint is made, and having arrived at its own conclusion on the evidence to the extent necessary to engage with the particular argument, the question for the Court of Criminal Appeal in such a case will remain whether or not the Court of Criminal Appeal has a reasonable doubt about the ultimate finding of guilt which cannot be resolved by taking into account the trial judge's advantage in seeing and hearing the evidence.
This case at trial involved issues of credibility and reliability of witnesses, in particular, the appellants raised issues in relation to the complainant’s credibility and reliability. In contrast, on the Crown case, the complainant’s evidence was credible, reliable and supported by circumstantial evidence and could properly be accepted. To have convicted the appellants on the counts her Honour did, having considered the whole of the evidence, her Honour must have accepted the complainant’s evidence as credible and reliable in respect to those counts.
In that context, the High Court in Pell observed at [39]:
The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.
On appeal, the focus of the challenge was on the reliability of the complainant’s evidence. The submissions were not directed to individual counts, but rather, as to the complaint’s evidence generally as to what occurred in the unit. In summary, each of the appellants identified factors which they said were reasons that cast doubt on her Honour’s ability to be satisfied of the reliability of the complainant’s evidence. Each appellant contended that the complainant had admitted to having “false memories” of events which had occurred at Mooseheads (a bar and nightclub) where she and the appellants were immediately before travelling to the unit, where the offences are said to have occurred. It was contended that in light of inconsistencies in the complainant’s evidence, and in particular, the false memories as to what occurred at Mooseheads, her Honour could not accept the reliability of her evidence as to the offences. The appellants also criticised her Honour’s reasons for her verdict, in particular, complaining that her Honour erroneously approached her conclusion through a prism of stereotypical conduct. There was considerable overlap in the submissions of each appellant insofar as they relate to the complainant, although each necessarily focussed on the allegations in relation to their client. We return to the details of the submissions below.
Suffice to say at this stage, bearing in mind the submissions made as to the significance of the inconsistent statements, and in particular in relation to the events at Mooseheads, an independent examination of the evidence reflects that it was nonetheless open to the trial judge to be satisfied of the appellants’ guilt on each count.
Before addressing the appellants’ submissions, it is appropriate at the outset to make the following observations.
First, the trial proceeded over 13 days, with the complainant giving evidence for five days (having been cross-examined by four counsel). This provided the trial judge with an extended opportunity to observe and assess the complainant and the other witnesses. This provided a significant advantage to the trial judge compared with that held by this court.
In that context, we note also the observations in Fennell v The Queen [2019] HCA 37; 93 ALJR 1219 at [81]:
Where a court of criminal appeal is called upon to decide whether it considers that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty of the offence charged, the court must not disregard or discount either that the jury is the body entrusted with primary responsibility of determining whether the prosecution has established the accused's guilt or that the jury has had the benefit of having seen and heard the witnesses. At the same time, however, the court may take into account the realities of human experience, including the fallibility and plasticity of memory especially as time passes, the possibility of contamination of recollection, and the influence of internal biases on memory. The court can also take into account the well-known scientific research that has revealed the difficulties and inaccuracies involved in assessing credibility and reliability. [citations omitted]
Second, during the appeal, counsel (in particular, counsel for Mr Masivesi) complained that aspects of her Honour’s reasons were deficient in their reasoning, despite there being no ground of appeal alleging inadequacy of the reasons. Nor, insofar as counsel submitted that aspects of the reasons “came close to” reversing the onus of proof, is there any ground of appeal alleging such an error. Neither of these matters are identified as particulars of this ground of appeal. Indeed, no complaint was made about any of the legal directions contained in the reasons.
Third, as will become obvious from the discussion of the evidence, there were five men present at Mr Masivesi’s unit that night, with four men alleged to have committed sexual offences against the complainant. The fourth accused, Mr Macanawai, was found not guilty of the offences with which he was charged. In respect to Mr Macanawai, the real issue in his trial was identity. That is, whether the prosecution had proved beyond reasonable doubt that he was the third man (sequentially), who engaged in the events in the bedroom. There was another person in the unit that night, TW, who was unable to be located, and it was submitted that the trial judge could not exclude that the third man was TW. Her Honour concluded that although it was extremely likely that Mr Macanawai was the third assailant, in all the circumstances she was unable to exclude the possibility the third man was TW. Given the evidence as to identification and her Honour’s reasoning, that conclusion does not affect the reliability of the complainant’s evidence about the events in the unit. None of the appellants suggested it did.
Fourth, two of the appellants, Mr Masivesi and Mr Vunilagi, were interviewed by the police and answered questions about the events. Those interviews are only relevant in the cases of each of those appellants. However, Mr Masivesi also gave evidence in the trial. Although his evidence was rejected by the trial judge, his evidence was available to be used in the cases against each of the appellants. Her Honour concluded that given she rejected Mr Masivesi’s evidence, it could only be relied on insofar as it supported the complainant.
Fifth, the issues at trial between the appellants were different. In respect to Mr Vunilagi and Mr Vatanitawake the real issue was consent. Mr Vunilagi gave an account to the police. Mr Vatanitawake did not, but the case put in cross-examination (and closing) was based on consent. That is, it was not disputed that sexual activity occurred, but because of the unreliability of the complainant, it could not be established that it was non‑consensual or that the appellant was reckless as to the complainant’s consent. In respect to Mr Masivesi, the real issue was whether any sexual activity occurred with him, as alleged by the complainant. Mr Masivesi gave evidence. The submission advanced by him was again that given the complainant’s unreliability, sexual activity could not be established. Although the appellants emphasised that their cases were different, on many topics they adopted or relied on submissions of other appellants or advanced arguments to the same effect.
Factual overview
The trial judge summarised the evidence in her reasons for verdict, the accuracy of which was not challenged in this appeal. Rather, the appellants’ submissions were directed to her Honour’s findings and reasoning. In that context, having read the evidence, we are satisfied of its accuracy and therefore, for the purposes of this judgment we refer to aspects of that summary. This summary is not exhaustive.
The Crown case was that the complainant was heavily intoxicated when she met the appellants (and Mr Macanawai) at Mooseheads in Civic at about 4:30am on 3 November 2019. The appellants were not known to the complainant. She began to socialise with them.
Much of the submissions on the appeal were directed to the activities at Mooseheads as they were captured on CCTV and some inconsistencies in the complainant’s evidence in respect to those events can be objectively established. It will be necessary to return to this below.
Described below is the evidence of the chronology of events which unfolded the morning of 3 November 2019.
Mooseheads
The trial judge summarised the CCTV vision of the events at Mooseheads as follows at [123]-[125] and [129]-[138]:
[123] At 4:50 AM, Vunilagi stumbled, taking the complainant with him. They stood back up.
[124]At 4:51 AM, an unknown male spoke to Vunilagi, who forcefully pushed the man away in a seemingly agitated manner. At 4:52 AM, Vunilagi continued to engage with the unidentified male, releasing the complainant. Macanawai attempted to calm Vunilagi, but Vunilagi struck out at Macanawai. Vunilagi pulled the complainant in and held her with his left arm around the front of her neck. She placed both her hands on his arm.
[125] At 4:52 AM, Ekeroma approached the table and spoke to Vunilagi, who indicated that a man in a T-shirt had caused the problem. Several men crowded around where Vunilagi held the complainant. The complainant placed her hand over her mouth and began to wipe her eyes while she was being held. She appeared to be crying. Vunilagi had his back against a pole and his left arm wrapped around the complainant’s neck and chest in a “seatbelt” grip. She was on his left. Ekeroma gave a “thumbs up” signal to the complainant twice. She responded with a “thumbs up” (indicating that she was okay) and moved away to Vunilagi’s right side.
…
[129]Ekeroma gave evidence that Vunilagi and the complainant were “really intoxicated”. Their actions showed that they were “onto the sloppy side of drunk”. The complainant’s eyes were hazy, and he could tell her condition from her body language and face. She did not look as though she was aware of her surroundings. Ekeroma contrasted the condition of Vunilagi and the complainant with that of Macanawai, who was “lively drunk”; he was dancing around.
[130]The CCTV footage showed that, after Ekeroma approached, the complainant moved away, and briefly stood behind another man, wiping her eyes. She was beckoned by Vatanitawake and she followed him downstairs to the toilets area, dabbing her eyes.
[131]Vunilagi resumed an agitated exchange with the man in the T-shirt. At 4:55 AM, a security guard escorted Vunilagi towards the door.
[132]Warcaba, a security officer, gave evidence that he had seen Ekeroma attempting to escort a tall man (inferentially, Vunilagi), who was intoxicated and resisting the effort to remove him. Warcaba assisted with the removal.
[133]Masivesi, Macanawai, TW and the man whom Vunilagi had pushed away remained at the table.
[134]Meanwhile, at 4:54 AM, the complainant and Vatanitawake descended stairs to the male and female toilets and another bar area. The complainant’s arms were linked through Vatanitawake’s right arm and she was touching or wiping her face or eyes. They remained downstairs, just outside the entries to the male and female toilets, for about 10 minutes. In the footage, the complainant seemed to be upset, and Vatanitawake appeared to console her. The complainant and Vatanitawake talked, kissed and cuddled, and it appeared that the complainant did so willingly. At times when she spoke, she used animated arm gestures, and seemed to be trying to explain something to Vatanitawake. She wiped her eyes a couple of times. At 5:02 AM, after the complainant used her perfume to spray a woman who was exiting the female toilets, she sprayed Vatanitawake with the perfume.
[135]At 5:04:36 AM, the complainant led Vatanitawake through the door into the female toilets. The movement of their feet, which remained visible through a screen grate near the foot of the door to the female toilets, suggested a continuation of the amorous exchange outside the toilets.
[136]At 5:05:29 AM, Warcaba knocked on the bathroom door and announced himself. The complainant emerged, followed by Vatanitawake. Warcaba observed that they looked embarrassed but were laughing and seemed to be fine.
[137]The complainant and Vatanitawake ascended the stairs to the ground floor of Mooseheads. Halfway up the stairs, the complainant stopped and waited for Vatanitawake. He took her hand at the top of the stairs. They then ceased holding hands and walked separately towards the Bravo Door exit. She exited Mooseheads, followed closely by Vatanitawake.
[138]At 5:09 AM, Macanawai and Masivesi remained inside Mooseheads. Masivesi left at 5:11 AM.
It is timely to refer to the evidence of Mr Ekeroma, a security officer at Mooseheads. He gave evidence that having finished his security shift at 3am, he observed Mr Vunilagi’s arm diagonally across the complainant’s chest (like a seatbelt) holding her back against his body. She looked scared. Mr Ekeroma said he thought that after a few more drinks Mr Vunilagi may be “trouble”. He approached them to enquire whether the complainant was comfortable. He questioned her with a “thumbs up” and she responded with a “weird” thumbs up, prompting him to ask, “Are you sure?”. Although she responded in the affirmative, she did not smile. He said that a man in a red shirt had argued with Mr Vunilagi and seemed to be “trying to stick up for” the complainant. Mr Ekeroma said that he observed Mr Vunilagi engaging in an altercation with another man while the other men stood around the table. He approached Mr Vunilagi and told him to “calm down before we kick you out”. The complainant was crying and looked scared. Mr Ekeroma told her to “leave” or “go home”, and he took Mr Vunilagi’s arm and led the complainant from the table, telling her to “go”.
Mr Ekeroma gave evidence that Mr Vunilagi and the complainant were “really intoxicated”. Their actions showed that they were “onto the sloppy side of drunk”. The complainant’s eyes were hazy, and he could tell her condition from her body language and face. She did not look as though she was aware of her surroundings. Mr Ekeroma contrasted the condition of Mr Vunilagi and the complainant with that of Mr Macanawai, who was “lively drunk” and dancing around.
The CCTV footage showed that, after Mr Ekeroma approached, the complainant moved away, and briefly stood behind another man, wiping her eyes.
The events that occurred outside Mooseheads were also captured on CCTV, and were summarised by the trial judge at [152]-[160]:
[152]The CCTV footage shows that, at 5:06 AM, the complainant exited Mooseheads by herself, and began to turn left down London Circuit towards East Row. Vunilagi was standing outside the Bravo Door, speaking to the man in the red shirt. As the complainant exited, he reached out and touched her arm. The man in the red shirt removed Vunilagi’s hand. She looked towards them, stepped forward and spoke to Vunilagi. He took her hand, then let go.
[153]The complainant walked east, past Verity Lane to the corner of East Row and London Circuit. At 5:16 AM, she was standing on the corner of London Circuit and East Row.
[154]Vunilagi chatted to the man in the red shirt near the Bravo Door exit. At 5:12 AM, both men walked from the Bravo Door east towards the southern (or top) end of Verity Lane (where Verity Lane meets London Circuit).
[155]Vunilagi was joined by Vatanitawake, who then returned to the colonnade area near the Charlie Door entrance to Mooseheads, where others, including Macanawai, were milling. Macanawai sat down, then fell over.
[156]At 5:16 AM, Vatanitawake went to the area outside the Charlie Door to Mooseheads, followed shortly thereafter by the complainant. En route, she passed Vunilagi and the man in the red shirt, who were still standing at the top of Verity Lane. When the complainant neared the Charlie Door, Vatanitawake beckoned to her. She approached him and spoke to him, another man and Masivesi for several minutes, before sitting down next to where Vatanitawake was standing.
[157] Vunilagi remained speaking to the man in the red shirt at the top end of Verity Lane until, at 5:17 AM, he walked part way down Verity Lane and spoke to Masivesi, who thereafter remained in Verity Lane.
[158]At 5:19 AM, Vunilagi went to the area outside the Charlie Door, where the complainant was seated in a group, near Vatanitawake and Macanawai. Vunilagi pulled the complainant up by her arm, put his left arm around her waist and walked with her back to Verity Lane and north up Verity Lane, holding her left arm and shoulder, then her left hand. She looked at and rubbed her left arm. They stopped and he examined her left arm. They stopped for a second time further down the Lane and were talking. At about 5:22 AM, they embraced.
[159]By 5:22 AM, Vatanitawake, Macanawai and Masivesi were standing in Verity Lane. They followed Vunilagi and the complainant down the Lane. Vatanitawake, Masivesi and Macanawai stood back some distance from Vunilagi and the complainant.
[160]As they exited the northern end of Verity Lane, towards the taxi rank on Alinga Street, the complainant and Vunilagi passed a police vehicle.
Taxi to unit
The trial judge summarised the evidence of the taxi van driver at [161]-[170] as follows:
[161] The taxi van driver collected the complainant, Vunilagi, Vatanitawake and Macanawai from the Alinga Street taxi rank and drove them to Masivesi’s unit at 514 Northbourne Avenue, Downer.
[162] The woman got in first and sat behind him. The muscly guy (Vunilagi) stood beside the taxi and told the driver that two more guys were coming. CCTV footage showed that, at 5:29 AM, the complainant was the first to enter the taxi.
[163] A man got in the rear. He was short and had a stomach. CCTV footage shows that this man was Macanawai.
[164] Vunilagi entered the taxi and sat beside the complainant. They were smiling, and they seemed happy with each other.
[165] Finally, a very dark man (Vatanitawake) sat in the front. He smelled of alcohol and had been smoking a cigarette. By 5:34 AM, Vatanitawake was seated in the front seat. When he started driving, the complainant told him that she was “not comfortable” with Vatanitawake. He thought that she was “making fun”.
[166] Once they were all in the car, the complainant seemed to be troubled and the driver asked, “Are you good?” and she said that she was. She spoke normally.
[167] The complainant did not move next to Vunilagi, but he moved towards her as the taxi travelled down Northbourne Avenue. He pulled her towards himself. She was also friendly, smiling at Vunilagi and acting politely. Everyone was friendly to each other.
[168] However, when the taxi neared the Downer/Dickson lights, the woman “started refusing” Vunilagi. They had an argument. The man in the front said something about coming to his house. He was behaving rudely, and the men had a very rude conversation, about themselves. They spoke partly in English and partly in another language. The conversation sounded aggressive. After the conversation, the woman was not happy or friendly towards the men. She was “refusing stuff” and her behaviour changed.
[169]When the taxi arrived at its destination, Vatanitawake got out first. Vunilagi suggested that they need not pay. The complainant insisted that the driver be paid and offered to pay with a credit card. Macanawai then paid him in cash.
[170] The woman did not seem to be overly drunk (she may have had four to five drinks) but the men were intoxicated.
The complainant’s evidence at the unit
The complainant’s evidence in respect to the events at the unit is summarised by the trial judge as follows (emphasis in original):
[171] When they arrived at Masivesi’s unit, Vunilagi took the complainant inside. There was a lounge room with a kitchen and a door to the bathroom on the right. The bedroom was on the left.
[172] She removed her shoes inside the front door, and Vunilagi took or dragged her into the bedroom. Later, she told Linden that she had taken her shoes off when she entered as it was a habit.
[173]She removed her hoop earrings and put them in her bag as she thought that they would get pulled.
[174] She was not sure whether the stocky man walked into the house after her. It was possible that she was in the bedroom with the door shut before Masivesi arrived home. She was already in the bedroom when the fifth man arrived.
[175] The complainant did not recall whether she had wanted to go into the bedroom.
[176] “From the beginning”, she told Vunilagi that she “didn’t want to do anything”. She was told to take her clothes off and she began to do so. Vunilagi pulled her dress over her head and she sat down on the bed. He removed her underwear. She could not recall whether she had wanted to remove her clothes or whether she had sat willingly on the bed.
[177]Count 1. The tall man (Vunilagi) was on top of her, kissing her. She was on her back. He directed her to “go down” on him and perform “oral”. He lay down. He was on his back and she was on her knees. He was not wearing a condom. He became erect. The fellatio lasted for a long time, about five minutes. She did not want to perform oral sex, but he grabbed her hair and she felt physically obliged to do so.
[178] Count 2. The complainant could not recall the circumstances in which she got on top of Vunilagi, whether he pulled her or told her to get on top. He penetrated her with his penis. She felt that she had to do what she was told because he seemed very aggressive.
[179] He lost his erection “when [she] started crying …it’s like it turned him off…”.
[180]Count 3. He laid her on her back and started “fingering” her violently. It was painful. She cried and told him to stop but he did not stop.
[181] Count 4. He used his mouth to “go down” on her. He was violently humping her and asking her whether she liked it. She continued crying.
[182]He grabbed her head and told her to suck him again. She tried to curl into a ball, and she thought that it was when she was trying to curl into a ball that he had grabbed her hair and told her to suck him. However, in re-examination, she was unsure whether she had sucked his penis a second time during this first episode.
[183] The complainant said that, when she continued to cry and he remained unable to revive his erection, Vunilagi opened the door and called “Simi” (Vatanitawake) into the room. She was not sure whether the door was then closed or remained open.
[184]Count 5. Vunilagi spoke to Vatanitawake in another language and gestured that Vatanitawake should undress and get on top of the complainant. She stayed on the bed, crying, as she felt too intoxicated to do anything. Vatanitawake undressed quickly, “made out” with the complainant until he became erect and had penile/vaginal intercourse with her while Vunilagi was watching. He ejaculated inside the complainant.
[185] Count 6. While Vatanitawake was having intercourse, Vunilagi grabbed the complainant by her hair and required her to “suck” him again. She was on her back. This continued until Vatanitawake ejaculated.
[186] In cross-examination, it was put to the complainant that she had demanded another person. The stocky man had entered, but the complainant had rejected him. Vunilagi had then obtained Vatanitawake, whom she had accepted. It was put to the complainant that Vatanitawake had engaged in intercourse doggy style while she had willingly sucked Vunilagi’s penis. She had said that she wanted them both at once and Vunilagi had stood by the side of the bed while she had sucked him. She rejected this scenario.
[187] The complainant said that Vatanitawake left the room. The tall man remained in the room with her. She stood to dress.
[188]Count 7. The stocky man walked into the room. When the complainant said that she was leaving, Vunilagi told her that she was not leaving and must get back on the bed. The stocky man undressed and lay on the bed. Vunilagi pushed the complainant onto the bed and told her to have sex with the man. When she refused, he grabbed her hair and pushed her onto the man’s crotch, telling her to “suck him”. She performed oral sex on the man. Vunilagi commented “Where’d you learn to suck?”.
[189]Count 8. Vunilagi pulled the complainant by her hair and required her to sit on the stocky man’s penis. She sat facing him. The stocky man used his hands to hold her hands against her hips so that she could not move freely, and he had penile/vaginal intercourse with her until he ejaculated inside her.
[190] She felt intimidated by Vunilagi as he was very rough. She did what she was told.
[191] Count 9. During the penile/vaginal intercourse, Vunilagi repeatedly pushed his fingers into the complainant’s vagina, and the associated severe pain caused her to cry and scream loudly. However, it was difficult to hear her screams as loud Islander music was playing and drowning out her screams.
[192] After the stocky man ejaculated, she lay on the bed holding a dirty pillow to cover herself, with her back against the wall in a foetal position. The stocky man left.
[193]Count 10. Vunilagi got back on the bed and was “trying to finger” her. She was lying on her back, crying and telling him to stop because it hurt. He was beside her. He was trying to kiss her. He was “still basically fingering [her], trying to”. He said “it’s okay. You’re fine. We’re looking after you.”
[194]While Vunilagi was “still basically fingering” her and she was begging him to stop, the older man (Masivesi) entered and told Vunilagi to stop and to leave the room. This was the first time that the complainant had seen Masivesi at the unit. Vunilagi left the bedroom (for the first time).
[195] Masivesi said, “it’s okay. I’m going to take you home soon. Just get some rest”. He tried to comfort her.
[196] Masivesi left the room for about 20 or 30 seconds. She was on the bed and she moved a curtain (she thought) and looked outside. She had no idea where she was. She did not use her phone because she was so distraught that she “didn’t remember [her] phone”.
[197]Count 11. Masivesi returned. He caressed her face, then her arms and breasts, moving down to her genital area. She cried and asked him to stop. He said “it’s okay. I’m looking after you. You’re safe with me” and “Those guys aren’t going to come back in here. This is my house. I’ll take care of you”. He grabbed her shoulders and started kissing her on her lips and body.
[198]Count 12. Masivesi put his mouth on the complainant’s vagina and “gave her oral”. He licked her vagina for a short time and then she started crying.
[199]Count 13. Masivesi “fingered” her with his right hand until she began to cry uncontrollably in pain, hyperventilating as though she was having a panic attack. His fingers “went in all pretty far”.
[200] He “penetrated her as well”. In cross-examination, she said that he had tried to have sex; he had put his penis into her vagina, but they had not had sex. She said that it was as he was penetrating her that she had had a panic attack.
[201] Masivesi got off her and tried to calm her down and comfort her. He left, saying, “I’m sorry. I’ll leave you alone now. Just go to sleep and I’ll take you back home when you wake up”. He left the room. She fell asleep.
[202]Count 14. The complainant was awoken by Vunilagi “fingering” her again. His fingers were inside her vagina. It was very painful. She was crying and told him to stop but he did not stop. He was wearing a different shirt, like a basketball jersey. It was a bright colour, yellow or orange.
[203]The complainant said that Vunilagi had “dry humped” her and slapped her butt cheek at least three times, extremely hard, telling her to stop crying. She had asked how he would feel if one of his ancestors or daughters was in her place. He responded that she was “okay” and that they were “just looking after” her. He then left the room.
[204] The complainant also gave evidence that she thought that it was when she was on top of the third man that she had been slapped.
[205] The complainant said that she needed to urinate. She dressed herself and went to the lounge room, where the five men were located. She told them that she needed to go to the toilet. She was told that she could go later, but she begged to go.
[206]She was permitted to go to the toilet under escort. The door was left open. Vatanitawake stood at the doorway.
[207] She tried to send a message saying “please help me” on the first occasion that she went to the toilet, at about 7 AM (or 7:30 AM). However, as she did not have credit on her telephone, the message did not transmit.
[208]The attempted transmission was at 7:16 AM.
[209] The complainant also said that the message had been generated on a second occasion when she went to the toilet. In cross-examination, she said that she had mixed up the occasion on which she had attempted to send a message to her friend. She also said that she had tried to message by data, but as her data had run out, her phone had defaulted to sending a text message. Her phone credit had run out and the text message was not delivered. She agreed that it would have been rational to call 000 but said she had been thinking only about getting home, not about the police.
[210]It was after attempting to send the message that she realised that she needed a charger.
[211] The complainant said that there had been a second (later) occasion when she went to the toilet, but she could not recall when that was. On that occasion, she was escorted to the toilet, but the toilet door was closed. The first time that she went to the toilet she was wearing her choker but, on the second toilet visit, she was no longer wearing her choker and she observed scratches on her neck and right side, under her right arm. However, in cross-examination, she agreed that, as no necklace was visible in the taxi van CCTV footage, she must have removed her choker earlier in the evening and placed it in her bag.
[212]When the complainant exited the toilet, she saw her shoes. She sat on the couch trying to put them on. Vunilagi came and sat next to her, on the chair to her left. Vunilagi said, “what are you doing?”. She replied that she was going home. He said, “no you’re not. You’re going to stay here. We are looking after you. You’re okay here”. He removed her shoes and socks and put her socks in her bag.
[213]She said that when she went outside to go to the toilet and was trying to put her shoes on, she passed her telephone to the old guy and asked whether they would charge it for her. He just held onto it and had no apparent interest in charging it. She snatched the phone back from him and sent (or tried to send) the message.
[214]She agreed that when she went to the toilet, she walked past the front door but made no attempt to flee. She did not remember why she had not attempted to leave at that time.
[215]Count 15. When the complainant was seated on the couch, trying to put her shoes on, Vunilagi was seated to her left, on a seat that was immediately adjacent to where she was seated on the couch. He pulled her leg up to facilitate him pushing his fingers into her vagina while she was seated. The other four men who were present were drinking, laughing, and looking. She lay on the couch, crying and begging him to stop but he did not.
[216]Vunilagi pulled the complainant up, grabbed her right arm and took her back to the bedroom, where he made her remove her clothes. He took her back into the bedroom where he “continued to finger” her and “make [her] give him oral again”.
[217]Count 16. In the bedroom, Vunilagi required the complainant to “give him oral again” and she fellated him. He was on his knees.
[218]Count 17. He told her to lie on the bed and he “gave her oral”, i.e. he licked her vaginal area.
[219]It is likely that the complainant was intending to convey that Count 17 preceded Count 16.
[220] He dry-humped her and asked her if she liked it. He told her to moan. She was crying and screaming “the whole time”. He then left the bedroom.
[221]The complainant said that all acts of intercourse and other sexual acts at the unit occurred without her consent.
[222]She said that she was choked by Vunilagi. She was not sure when that occurred, although she thought that it had occurred while Vunilagi was dry humping her and had his arm around her neck.
[223]The light was off all the time that she was in the bedroom.
[224]After Vunilagi left the bedroom, the complainant put her long hair up, preparing for the fight that may be required in order to leave.
[225[Masivesi came into the room as the complainant was dressing and gathering her belongings. He “touched” and “felt” the complainant, trying to “feel [her] up” again. At first, she said “just get it over and done with” but then she decided that she “couldn’t take it” so she got up, pushed him away and walked out. By that stage, she was feeling more sober.
[226]The living room was empty although the music was still playing loudly. The front door was wide open. She walked towards the door, but Vunilagi came back in and was “in her face”. He confined her against the wall in front of the front door and asked, “Where are you going?”. He told her to wait until Vatanitawake returned as he had just left to purchase a box of beer and would take her home when he returned. She pushed past Vunilagi, through the front door. He grabbed her and pulled her back in. She thinks that it was at that time that she was accidentally burned by a cigarette that he had been smoking.
[227]She walked briskly down the driveway to the main road.
[228]The complainant’s evidence concerning necklaces was confusing. Ultimately, she agreed that she had not been wearing a necklace in the taxi van and had taken it off during the evening. She seemed to be saying that her second necklace, a choker necklace, “went missing” when she was at Masivesi’s unit, and that Vunilagi may have pulled it from her when he was choking her. She left her bra at the house; she could not find it when she was leaving the house.
We note there is objective evidence that the complainant tried to send such a text message at 7:16am on the Sunday morning. The trial judge observed at [396]:
A critical piece of objective evidence is the text message “please help me” created at 7:16 AM, after the complainant had been at the residence for about an hour and almost three hours before she finally left the residence and immediately sought help from a passer-by. At 7:16 AM, the complainant must have perceived herself to be endangered and incapable of extracting herself without the assistance of others.
Leaving the scene
In the passage recited above, her Honour refers to the complainant immediately seeking help from a passer-by, Mr Prentice, upon leaving the unit. Mr Prentice did not know the complainant. He was walking along the street at the front of Mr Masivesi’s unit when the complainant approached him and asked for a pen. She asked him if he knew the number of the house. He told her he did not have a pen, but gave her the number of the house. She appeared “upset”, “disorientated” and had “red eyes, like swollen eyes, and looked like she’d been crying and she started crying”. Mr Prentice asked if the complainant was “okay” to which the complainant replied, “I don’t know if it is rape or what you’d call it” and started crying. Mr Prentice gave evidence that:
…I said ‘Well do you want me to call the police or would you like me to call somebody for you’ and she…the reason she was asking me for a pen, she told me, is because her phone had run out of batteries…so I asked if she’d like me to call and she said no, she was worried because she’d been intoxicated or something and so I said ‘Look, do you want me to call a friend or your parents or someone or something’ and she said she didn’t know the numbers because they were in her phone so I asked if she’d like to call a taxi so we ended up calling a taxi…
Mr Prentice gave evidence that almost the first thing the complainant said was “I don’t know if you’d call it rape, or what you’d call it”. Mr Prentice observed a man exiting the unit and said, “There’s someone coming out”. The complainant ran and hid behind a bush and was “really frightened”. At some stage she said they want to take her home but “I don’t want to get in a car with them”, and that she did not want to be seen by them.
He gave evidence that the complainant told him she had been out, that she had been drinking and “met some guy”. The complainant told him that “they’d turned the music up” and “had taken turns with her throughout the night and turned the music up to drown out her shouting, or screaming”. Further, that “she was afraid they were going to kill her”. Throughout the time he was talking with the complainant she would burst into tears. Her voice was wavering and she was “frightened and crying”. “[S]he would start crying and she’d be shaking and nervous and anxious, really anxious looking, and then she’s start speaking and she would start crying again.” Mr Prentice saw that the complainant had bruises on her throat or neck that looked like hand marks and fingerprints, as well as scratches on her chin and waist. Mr Prentice gave evidence that he was with the complainant for approximately 20 minutes at most.
The taxi driver who collected the complainant from the unit gave evidence that the complainant was crying. He asked her what had happened and the complainant told him she had gone home with one friend and “after some time he called more friends” who abused her. She said the music was loud and she was shouting. He gave the complainant his business card and wrote the number of the house where he picked her up on the back.
When she arrived home she spoke to a friend, Ms Lu. The complainant and Ms Lu reported the matter to police. That evening the complainant was forensically examined at Canberra Hospital.
Medical examination
Dr Thomas, a Registrar at the Clinical Forensic Medical Services and Forensic and Medical Sexual Assault Care Unit at Canberra Hospital, performed a medical examination on the complaint at approximately 9:30pm that evening on 3 November 2019. He gave evidence of the procedure he used to take the history. While examining the complainant, he took notes (Exhibit 15B). Dr Thomas explained inter alia:
Q: And you go on, 'This may differ from subsequent statements made by the patient relating to the same incident'?
A: That's correct. So we know that – we know that patients who have undergone a traumatic incident might provide different accounts to different people and that might be a way of their brain coping with missing pieces of information or they may just not remember at the time and things might come later or they might provide us with information that they don't provide to an investigator, for various reasons.
The trial judge summarised the evidence at [273]-[293]:
[273]The complainant thought that she had not used the toilet before going to the hospital.
[274]At the hospital, the complainant’s injuries were photographed: a scratch to the right side of the neck, a red mark on the left rear neck, and a long scratch/graze to the right side of the chest: Exhibit 6. The complainant said that she did not remember how she had sustained them, but she had not had them before she entered the bedroom. She told the doctor that she had a sore, dry throat and was dehydrated.
[275]Dr Thomas, a Registrar at the Clinical Forensic Medical Services and Forensic and Medical Sexual Assault Care Unit, Canberra Hospital, commenced examining the complainant at 9:30 PM. While examining her, he took notes: Exhibit 15B.
[276]The complainant told Dr Thomas that she had been assaulted by four men, whom she described as follows:
(a)About 6’5’’ tall, athletic build, missing front teeth (assailant 1, Vunilagi).
(b)About 5’6” tall, slim build, oldest man, 40-50 years old, dreadlocks (assailant 2, Masivesi).
(c)About 6’1’’ tall, slim build, a similar age to the complainant, possibly called “Simi” (assailant 3, Vatanitawake).
(d)Short, stocky build, with a beard (assailant 4).
[277]Her narrative account was as follows:
We were in the club, I remember someone holding me. He kept kissing me, I think I was crying. The guy the same age as me took me outside to wait for a taxi. The tall guy grabbed me and dragged me through the alley, around to a taxi van. The guy the same age got in the taxi as well. Then four of them got in. They threatened the taxi driver. I got out when they got to their house. The tall guy took me to the bedroom, he grabbed my dress and ripped it off me. He started touching me. He went down on me. He fingered me. There was a lot of pain. He made me give him oral. He called in the younger guy, I think his name was Simi. He made the younger guy fuck me. He came inside me. I was saying no. The stocky guy came in, the tall guy made me give him oral. The stocky guy then sat me on top of him, he came inside me as well. Then the older guy came in, the taller guy came in and threatened the older guy. I was screaming and saying no. The older guy told the others to leave. He left but came back, then rubbed my body down, he fingered me. He put his dick inside me but I don’t think he finished. The taller guy came back in and kept fingering me. I was screaming and crying. I fell asleep, but woke up to the taller guy fingering me. I was in so much pain. The older guy got back up on top of me. I went to the toilet. I was trying to put my shoes on. The taller guy put his fingers inside me again. I pushed the older guy off me. I was screaming and crying. I got out the door but he pulled me back in. I managed to get out to the road, there were people around. I saw a guy on the road and he called me a cab. I think the tall guy tried to choke me.
[278]The complainant did not refer to having had a panic attack while being assaulted.
[279]In relation to Vunilagi, the complainant reported penile/vaginal penetration, digital penetration, oral penetration by the penis and fingers (that he put his fingers in her mouth), oral contact by Vunilagi with her vagina, “bottom” (it could have been the bottom cheek), mouth and breasts, and the use of saliva as a lubricant (he “spat”).
[280]In relation to Vatanitawake, the complainant reported penile/vaginal penetration, digital penetration, oral penetration by the penis, and oral contact by Vatanitawake with her vagina, “bottom”, mouth and breasts. She said that he had ejaculated.
[281] In relation to Masivesi, the complainant reported penile and digital penetration of the vagina, penetration of the mouth by the penis, and oral contact with her vagina, “bottom”, mouth and breasts.
[282[In relation to the fourth assailant, the complainant reported penile and digital penetration of her vagina, penetration of her mouth by his penis, and oral contact with her vagina, “bottom”, mouth and breasts.
[283]She said that no condom was used. She said that Vunilagi had not ejaculated. She was unsure whether Masivesi had ejaculated. Both Vatanitawake and the fourth assailant had ejaculated.
[284]The complainant’s presentation was “flat” and dull, her voice was monotonal and her eye contact was poor. She was not tearful. She said that, since the assault, she had experienced painful urination, vaginal pain and vaginal spotting.
[285]The complainant said that assailant 1 (Vunilagi) had used his right hand to strangle her but did not say when that had occurred in the sequence of events. She was unsure about an associated loss of consciousness or memory. She said that she experienced neck pain, a sore throat, voice changes, a cough, and tunnel vision. She reported a previous strangulation, but no details were taken. Dr Thomas said that a strangulation could aggravate an earlier injury.
[286]The complainant told Dr Thomas about injuries possibly caused by Vunilagi – a scratch to her right side (flank), an open hand strike on her buttocks and a bite on her right buttock and bottom lip. She said that he had pulled her hair, choked her and may have burned her left arm. She had scratched Vunilagi with her right hand. He had not “threatened” her.
[287]At 11:05 PM, Dr Thomas conducted a general medical examination. He did not test the complainant’s blood alcohol level. He took photographs of injuries: Exhibit 6. He observed a 12 mm scratch/abrasion to the right side of the neck (images 3 and 4), which could have been caused by sharp fingernails or a blunt force, irregular shaped areas of redness on the back right side of the neck (images 6 and 7), a 200mm x 8 mm abrasion to the right side of the body/chest (images 8 and 9), which were probably caused by blunt force, a possible bite mark to the right side of the right buttock (five small bruises less than 3 mm diameter in a curvilinear shape), but did not note that they were yellow as was his normal practice with yellow (older) bruises. The possible bite mark was not photographed.
[288]The doctor conducted a genital examination. The external genitals were tender to touch. There were two linear abrasions, each about 1 cm long, extending from the outer labia to the perineal area. The internal examination yielded little of interest. He said that the insertion of a sharp fingernail may or may not have caused damage to the vaginal or cervical walls; it was unlikely to have reached to the cervical wall and the vaginal walls are very elastic and can accommodate objects without injury.
[289]Dr Thomas could not say that any of the injuries necessarily showed that there had been a sexual assault. The neck marks were likely the result of the application of blunt force.
[290]Forensic samples were collected. In that context, the complainant reported that she had had vaginal intercourse with her fiancé on 1 November 2019.
[291]The complainant told Dr Thomas that she had felt very drunk and dizzy and that she had been forced to consume alcohol by (Vunilagi) and (Masivesi). She said that the she [sic] had drunk two glasses of white wine (at 9 PM), two passionfruit cocktails (between 11 PM and midnight), a vodka raspberry (at midnight), half a can of Smirnoff double black (at midnight), one Canadian Club mixed drink and two Jack Daniels (between 1 AM and to 3 AM), and two vodka Red Bulls (at 3 AM). Then the “other guy” had poured her drinks from 3 AM until 5 AM. She felt that her drinks may have been “spiked”.
[292]Dr Thomas said that symptoms of intoxication include discoordination, loss of balance, euphoria and dysphoria (elevation or alteration in mood), and disinhibition.
[293]Based on the complainant’s drinking history, Dr Thomas opined that she would have been intoxicated at 5 am. After looking at the CCTV footage recorded at 4:33 AM (when the complainant was standing outside and entering Mooseheads), he said that she may have had a balance issue, but he agreed that she had walked into Mooseheads without apparent difficulty. He said that the CCTV footage recorded at 5:05 AM (as the complainant was walking upstairs from the toilets) and at 5:16 AM (outside Mooseheads), did not demonstrate a difficulty with coordination. She did not appear to be intoxicated when he saw her.
A forensic sample was taken from the complainant. A DNA analysis of the endocervical swab found extremely strong support for contribution by Mr Vatanitawake.
Police Interviews
On 7 November 2019, the complainant participated in a police evidence-in-chief interview.
Mr Vunilagi, Mr Macanawai and Mr Masivesi were interviewed by police. Those respective interviews were admitted into evidence in the case against each appellant but not in relation to the other appellants.
Appellants’ submissions in relation to the complainant’s evidence
As noted above, although each of the appellants’ cases are separate, there is considerable overlap in the submissions made on the verdict being unreasonable. At the heart of the appeal ground was an attack on the reliability of the complainant’s evidence.
Put most simply, the appellants’ submission is significantly based on an assertion that the complainant had “false memories” about the events which occurred in Mooseheads, and that there were other inconsistencies in the complainant’s evidence about the events, such that there must have necessarily been a reasonable doubt about her evidence as to the counts on which the appellants were convicted. In particular, the appellants point to the complainant’s evidence about what occurred at the unit. It was submitted that the trial judge did not address these “false memories”.
The inconsistencies
At the outset it is appropriate to identify the inconsistencies relied on by the appellants in advancing this submission.
The “false memories” at Mooseheads primarily relied on by the appellants were as follows:
(a)The complainant told police she was grabbed by one of the tall guys inside Mooseheads and that when she got up to the table of men, she could not remember if she “got grabbed or whatever”. The CCTV footage showed the complainant walked directly to the table and was not grabbed.
(b)The complainant told police the group of men kept buying her drinks all night and that she estimated she had probably five drinks from the group. She told Dr Thomas “she was forced to consume alcohol by the tall guy [Mr Vunilagi], the older guy [Mr Masivesi]”. CCTV footage showed the complainant had one drink whilst in the company of the men and she was not forced to consume alcohol. We note that while that is so, it does appear she was offered (but not forced to consume) a number of drinks by them, however she declined.
(c)The complainant’s evidence was that Mr Vunilagi grabbed and touched her and that she did not want to be touched by him. She said she started crying because Mr Vunilagi kept kissing her and that she tried to pull him off her. The CCTV footage showed that from approximately 4:37:17 until approximately 4:51:13, the complainant was embracing, kissing, and talking to Mr Vunilagi. She accepted she did so willingly. After she started crying the complainant made no attempt to get away from Mr Vunilagi.
(d)The complainant recalled being pulled away from Mr Vunilagi by Mr Vatanitawake and taken downstairs so they could get away. The CCTV footage showed that Mr Vunilagi released his grip on the complainant. Mr Vatanitawake then beckoned the complainant, she moved over to him and together they went downstairs.
(e)The complainant said she did not spray her perfume on Mr Vatanitawake when they were downstairs, but the CCTV footage showed that she did.
(f)The complainant said that when she left Mooseheads she walked outside with Mr Vatanitawake, but the CCTV footage showed she was not with him. The complainant recalled being dragged by Mr Vunilagi to the taxi, when the CCTV footage showed the complainant and Mr Vunilagi walking while holding hands, and that they had previously been standing closely, talking and/or kissing.
The complainant accepted her memory on those topics was inaccurate, or that she had no memory of certain events. The complainant’s evidence was that she had limited recall of the events between when she left her friends that night and when she entered the taxi at about 5:30am.
The inconsistencies that are identified and relied on by the appellants as to the events which occurred after leaving Mooseheads were primarily:
(a)That the complainant reported being scared and intimidated by Mr Vunilagi in the taxi. The complainant sat in the taxi alone for approximately five minutes before the taxi left and made no attempt to shut the door on Mr Vunilagi or to get the taxi driver to drive away. She conceded she willingly got into and remained in the taxi;
(b)The complainant thought Mr Vunilagi pulled her out of the taxi, however, she had ample opportunity to refuse to get out of the taxi;
(c)Mr Vunilagi ripped her dress off, although the complainant accepted she started to undress herself and what she meant was that Mr Vunilagi pulled her dress over her head;
(d)Mr Vunilagi dragged her by the arm to the bedroom when actually she walked along the driveway and had ample opportunity to flee;
(e)There was an issue as to when she removed her jewellery;
(f)There was an issue as to when she attempted to send the text message seeking help;
(g)That the complainant said she could not find her bra at the unit, and that the police did not locate it at the unit; and
(h)It was said that the complainant misdescribed the mattress on the bed.
Some of the appellants on occasion also referred to some of these alleged inconsistencies as “false memories”. We note that the appellants were not consistent in the use of that label.
That said, leaving aside for a moment the evidence which supported the complainant’s reliability, a number of observations may be made about those topics referred to in [48].
Some of the matters identified are not inconsistencies in the evidence, but rather a submission that the complainant could have refused to get out of the taxi or have fled the scene. That is, her behaviour was inconsistent with her evidence about her state of mind at the time. The submission presupposes what is said to be an appropriate reaction or behaviour. The failure to flee is not necessarily reflective of the complainant not being scared. It cannot be extrapolated from the failure to flee that the complainant consented to the sexual activity with the appellants. It is a factual matter to be assessed with all other evidence.
As to the jewellery, text message, bra and mattress, her Honour concluded at [388]‑[392]:
[388]The complainant was confused concerning when she had been wearing her two necklaces and when and how they had been removed from her neck. I do not consider that this evidence undermines the complainant’s credit; it is consistent with the events of the evening that the complainant was confused about a relatively peripheral matter.
[389]The complainant’s memory of going to the toilet on the two occasions, when she requested a charger and when she attempted to send a message (and why the message did not transmit) is confused and blurry. However, there can be no dispute that she attempted to send a message at 7:16 AM.
[390]Although the complainant suggested to police that they would find a pink bra and lot of hair in the bedroom (because Vunilagi had tugged at her hair), when executing the search warrant, the police did not find these items.
[391]This does not affect my assessment of the complainant’s credibility. Her hair may well have been tugged without clumps of hair being removed. Some hair may have been present but not located because the forensics team was not called in. The location of the bra remains a mystery. It would seem that the search was less than thorough.
[392]The complainant denied that there were two mattresses and a sheet on the bed. Masivesi said that a mattress and sheet that had been on the bed were placed outside because they were filthy after being used by so many people. When the search warrant was executed, the police saw a mattress and sheet over the fence of the premises. The complainant may have been wrong about a second mattress and sheet. If so, that is a relatively minor detail that does not cause me to doubt her evidence of critical matters.
Considering the evidence as a whole, such findings were plainly open on the evidence. Moreover, the failure of the police to locate items must be considered in that context. For example, there is no suggestion put to the complainant that she still had the bra or that it was other than where she said it was. This is in the context where it was not disputed by any appellant that sexual activity took place at the unit.
The first appellant, Mr Masivesi, did submit that there were some differences in the complainant’s account given to Dr Thomas and her recorded examination-in-chief, and criticised the manner in which the trial judge dealt with that. The third appellant, Mr Vunilagi, submitted that the complaint’s account given to the two police officers and the account given to Dr Thomas are inconsistent, with particular reference to lack of reference to oral sex. These submissions are referred to below.
It is noted that these identified topics of inconsistency do not include that the complainant has been inconsistent as to the events she said occurred in the bedroom and the unit more broadly (either as to what occurred, when or with whom) in her recorded examination-in-chief and her evidence, or generally within her evidence.
The “false memories” submission
Against that background, we turn to the trial judge’s consideration of the “false memories” the complainant had about the events at Mooseheads.
In relation to the events where the complainant accepted that the CCTV footage differed from her memory, the trial judge concluded that the complainant had not deliberately lied but had an incorrect memory. Of note, the trial judge found that:
(a)the complainant had no recollection of some significant events and wrongly recalled that she had been plied with drinks by Mr Masivesi and Mr Vunilagi; and
(b)the complainant wrongly recalled that her interaction with Mr Vunilagi at Mooseheads had commenced when he had “grabbed” her and that he had “dragged” her to the taxi rank.
However, as her Honour stated, in some respects, the complainant’s evidence was consistent with the CCTV footage and the evidence of Mooseheads’ security officers. For example, she accurately described the way in which Mr Vunilagi held her in a “seatbelt” grip and the interaction with Mr Ekeroma.
Her Honour stated at [374]:
… the complainant’s lack of memory and “false memory” about some important events at Mooseheads and in the Civic area —things that would have been of some importance at the time, not just in retrospect—means that her evidence about later events must be examined very closely (both internally and in the context of other evidence) if, as to critical matters, it is to be accepted beyond reasonable doubt.
There is no basis to contend, as the appellants did, that her Honour did not do as she stated she would.
Insofar as the appellants characterise the inconsistencies as “false memories”, they appear to do so to attempt to place an elevated significance on them. The term “false memories” was one introduced into the trial by the appellants in cross-examination. We note that although her Honour refers to that concept, she does so in inverted commas, as opposed to an acceptance of the correctness of that description.
In support of their submission in respect to the “false memories” the appellants referred, in particular, to two cases; R v E (1997) 96 A Crim R 489 (E) and GAX v The Queen [2017] HCA 25; 91 ALJR 698 (GAX).
The appellants rely on E and contend that case is “directly applicable” to the case at hand. That submission is incorrect. E concerned the issue of recovered memories. That is, the complainant in that case gave evidence that although for many years she had no memory of being sexually abused, she now remembers that occurring. The factual sequence of events giving rise to the recovered memory was important to the reasoning of the majority (Smart and Sperling JJ) in that case, although is unnecessary to recite here. Suffice to say that this is plainly not such a case. We note also that although Simpson J (in dissent) would have agreed with the concerns of the majority, her Honour did not do so as there was other evidence available (in that case, medical evidence supporting the allegations that sexual abuse occurred although not implicating the offender). Importantly, as Simpson J correctly observed at 493, the circumstances of that case called for “the most careful scrutiny of the evidence”, which is the approach adopted by the trial judge in this case.
The facts in GAX are also to be distinguished from this case. Although the first appellant submitted the case referred to “what might be termed ‘false memories’”, that term is not referred by the Court. In GAX, the High Court allowed an appeal against conviction, concluding that on the evidence there was a real possibility that the complainant’s evidence was a reconstruction and not an actual memory which could not be excluded beyond reasonable doubt: GAX at [31]. The complainant was a child at the time of the alleged offences. The plurality discussed the evidence, and what it was that gave rise to such a conclusion. The complainant gave evidence of an alleged sexual assault which occurred about a decade earlier when she was 13 years old. The plurality recited a critical passage of evidence which included that when asked what her father was doing while on the bed, the complainant said: "I was asleep before and ended up finding out what happened". That is the basis on which the issue of reconstruction arose. Again, that is not suggested in this case.
Properly considered E and GAX are examples of the application of well-established principles in respect to whether a verdict is unreasonable (as referred to above), to the evidence in the particular case. The test remains the same. Putting a label on what is a witness inaccurately recalling an event or where the witness has no memory of aspects of an event, does not assist in resolving the issues at hand. Each case must be assessed on its own facts.
That there are plainly factual distinctions between the circumstances of this case, E and GAX is not to suggest that the inconsistencies in the complainant’s evidence are not important. To the contrary, as her Honour acknowledged in the passage recited above at [58], it is necessary to closely examine the complainant’s evidence in that context. Her Honour must have been satisfied, considering the evidence as whole, that the complainant’s memory of the events the subject of the convictions was reliable. This necessarily involved a consideration that her memory had been inaccurate as to aspects of the events at Mooseheads. That conclusion was open. Importantly, in conducting the independent examination of the evidence required for a consideration of this ground of appeal, this court must take into account, inter alia, any inconsistencies (however they are characterised) in the complainant’s evidence which must necessarily encompass the nature of them.
The context of the inconsistencies must be assessed
The appellants’ submission as to “false memories” in this case also approaches the complainant’s evidence in a vacuum.
At this stage, in that context, there are four observations which can be made.
First, there was evidence which supports the complainant’s version of events in the unit, some of which was uncontested. It is important to recall that, as previously explained, the contested issue in the case against each appellant is different and not all matters were in issue in the case against each appellant.
There were a number of instances where other evidence, including evidence from the appellants, was consistent with the complainant’s evidence. For example, the oral evidence of Mr Masivesi contained significant support of the complainant’s version of events at the house and was admitted in each case. In Mr Vunilagi’s case, his recorded interview with the police contained admissions of two occasions of oral sex involving the complainant, one of which occurred while Mr Vatanitawake was having penile vaginal sexual intercourse with the complainant. That was consistent with the complainant’s version and caused consent and recklessness to be the substantial issues to be decided in relation to counts 1 and 2. Mr Vunilagi’s girlfriend also gave evidence that he had told her he had oral sex with the complainant on two occasions and that there was dry humping. Again, this is consistent with the evidence of the complainant. In relation to Mr Vatanitawake, the DNA evidence which indicated the presence of his semen had the result that the contest was over consent and recklessness rather than whether the sexual intercourse occurred.
In relation to Mr Masivesi, in addition to his oral evidence, his interview with police was evidence in his case. His statements to the police were consistent with the complainant’s version of events to a greater extent than his oral evidence, providing considerable support for the proposition that the complainant’s evidence was reliable.
In addition, as explained in more detail below at [84]-[102], there is other supportive evidence admissible in each case. Thus, in each case it was a matter of assessing the reliability of the complainant’s evidence in a context where the issues were confined by other admissions or uncontested evidence that supported the reliability of the complainant’s evidence.
Second, insofar as the alleged inconsistencies are said to relate to various complaints made by the complainant, in assessing whether there is an inconsistency and if so, what if any impact it may have on the complainant’s evidence, regard has to be had to the circumstances in which each of those complaints were made to police and the statements were made to Dr Thomas.
The complainant went to the police at about 2pm on the day of the incident. Senior Constable Burns spoke to the complainant for about 20 minutes, with his evidence summarised at [252]-[262] of the trial judge’s reasons. The purpose of speaking to the complainant, he said, was to obtain an overview of the events to enable him to brief detectives. It was not his role to investigate or ask any probing questions. During the conversation he observed that the complainant was upset, she seemed exhausted and that her voice was very crackly and raspy. When Senior Constable Burns asked the complainant why her voice was affected, she said that it was because the men had turned up the music to drown out her cries and screams.
Pausing there, the purpose of this interaction was not to take a statement from the complainant. Senior Constable Burns was taking notes of what the complainant said, for the purpose of gaining an overview and, given its purpose, it was not intended to be a complete account.
At around 4.30pm that same day the complainant was introduced to Senior Constable Linden. Senior Constable Linden took the complainant through the events, with his evidence summarised in the trial judge’s reasons at [263]-[271]. He observed that the complainant’s voice was hoarse, “noting it was from screaming in the house”, and that she was exhausted and in shock.
So far as reliance was placed upon matters that the complainant did or did not say to Dr Thomas, it is relevant to take into account that Dr Thomas saw the complainant at the hospital at approximately 9:30pm on 3 November 2019. Dr Thomas took, inter alia, a history from the complainant. He explained:
Q: So you've written, 'The history given by the patient is taken in the context of a clinical therapeutic relationship'. Can you just explain to the court what that means?
A: So first and foremost, your Honour, we're medical doctors and nurses, so our main priority is the health and wellbeing and identification of injuries that might be a threat to someone's health. So first and foremost, I act as that patient's doctor and being that I am an emergency department doctor, I have a number of links within the emergency department and if I identify injuries and things, I can help to organise for the patients to have those treated. The point of that line is - is to show that I'm actually there as - as a healthcare provider, not as someone who's just taking an interview or just collecting evidence for police.
So far as s 68BA(3)(a) (“will ensure the orderly and expeditious discharge of the business of the court”) was concerned, the appellant submitted that it was “necessarily satisfied in all cases” because the purpose of the provision was to ensure that cases could continue notwithstanding the public health emergency and the alternative to the making of an order was that the case in question would be delayed.
So far as s 68BA(3)(b) (“is otherwise in the interests of justice”) was concerned, the appellant submitted that “it was entirely unclear from the statutory text and context whether any matters would ever militate against the making of an order” (emphasis in original). The appellant therefore submitted that s 68BA(3) left the trial judge with no independent function because the discretion could not be exercised according to objective criteria. On that hypothesis the Supreme Court was merely enlisted to achieve a legislatively determined outcome, undermining its institutional integrity. Further, the appellant submitted that once s 68BA was repealed but its operation continued pursuant to ss 115-117, the discretion became “entirely devoid of meaningful content”.
These submissions cannot be accepted.
It is wrong to say that s 68BA(3)(a) would inevitably be satisfied. Whether or not it would be satisfied will depend upon the overall state of the lists of the court. In that regard, three points must be noted.
First, given the expanded capacity for accused persons to elect for trial by judge alone, it is quite possible that there would be an increase in judge alone trials and hence, from time to time, the court may be in a position to continue to discharge its workload without compelling any accused person to have a trial by judge alone against that person’s will.
Second, within the COVID-19 emergency period some jury trials of limited duration or complexity may have been possible so as to correspondingly reduce the need for judge alone trials other than by an accused person’s election.
Third, there may well be a change in circumstances between the time at which the s 68BA(4) notice is given and the time when any decision is made. In this case there was almost two months between the date of the notice and the date of the decision. The factual circumstances of the pandemic are, by their nature, uncertain and may have become more or less conducive to conducting trials by jury, altering the assessment of the likelihood that a jury trial might be conducted on the date fixed for trial or altering the likely period of delay of any future jury trial if the listed trial did not proceed. Given the potential for a change in circumstances, it cannot be said that satisfaction of s 68BA(3)(a) was inevitable.
These possible scenarios illustrate that whether or not s 68BA(3)(a) was satisfied would depend upon a judgment made based upon the facts that exist at the point of decision and that it cannot be said that, in the variety of circumstances that might exist throughout a pandemic, the requirements of the paragraph would always be satisfied.
So far as s 68BA(3)(b) is concerned, it is plainly incorrect to say that there were not matters that would militate against the making of an order. In her Honour’s decision the trial judge recognised that trial by jury was “the desirable way of trying serious criminal matters”: at [40](a). Her Honour recognised that it was preferable in a case in which the complainant’s credibility was to be a critical issue in the trial that the matter been tried before 12 jurors who could bring their collective experience and common sense to bear on the issue: at [40](d). These are matters which are clearly relevant and tended against the making of an order.
The trial judge identified that two factors which tended to favour a conclusion that it was in the interests of justice to make an order were the interests of the complainant and other witnesses in having the matter resolved expeditiously: at [40](f); and that three of the accused were remanded in custody who supported the making of an order for trial by judge alone: at 40(b)-(c). However, they illustrate the potential for there to be matters which favoured a conclusion that it was not in the interests of justice to make an order. For example, if instead of being remanded in custody, the appellant’s three co-accused had been on bail then that would have been a significant factor telling against the ordering of a trial by judge alone because the prejudice to the accused of a delay in the proceedings would have been substantially less. Similarly, had the complainant given her evidence and been cross-examined pre-trial pursuant to Part 4.3 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) then that would have reduced the prejudice to the complainant arising from a delay in the conduct of the trial and hence be a factor telling against the conclusion that it was in the interests of justice to make an order for trial by judge alone.
A consideration of where the interests of justice lie involves an evaluative judgment based on a broad range of factors that might be relevant in any particular case. The examples given in these reasons of factors which may tend against a conclusion that it was in the interests of justice to order a trial by judge alone are sufficient to illustrate that, contrary to the appellant’s argument, the criterion in s 68BA(3)(b) is not devoid of meaningful content and does not deny to a trial judge an independent function.
Insofar as the appellant contended that, following the repeal of s 68BA, the discretion given to the court was “entirely devoid of meaningful content” because the continued operation of s 68BA(3) turned on “the arbitrary condition of notice”, that submission must also be rejected. As the reasons given by the trial judge make clear, the decision of the court that it was possible to conduct jury trials did not mean that all such trials could proceed. In the present case, the finding of the trial judge was that, having regard to the number of co-accused and the estimated length of the trial, it could not be run as a jury trial until the then current distancing and spacing requirements had been lifted or at least substantially eased. The trial judge concluded that there was “no prospect of that occurring in the short to medium term”: at [36]. In those circumstances, the same considerations which applied prior to the repeal of s 68BA remained relevant and the reconciliation of the competing public interests was a matter for the court to determine on the basis of the submissions made to it in light of the facts that existed at the time of the decision.
Second argument – interpretation of s 48A of the Self-Government Act
The two separate components of the appellant’s argument are summarised at [209](b). The first component of the argument may be described as the “constitutional character argument” and the second component may be described as the “statutory character argument”.
Constitutional character argument
The appellant’s argument contained a number of steps:
(a)When the Commonwealth Parliament established the ACT Supreme Court by s 6 of the Seat of Government Supreme Court Act 1933 (Cth) (subsequently renamed the Australian Capital Territory Supreme Court Act 1933 (Cth)) it established a court of the same status and character as State Supreme Courts referred to in s 73(ii) of the Constitution.
(b)None of the amendments to the Australian Capital Territory Supreme Court Act, the Self-Government Act or the ACT Supreme Court (Transfer) Act 1992 (Cth) (Transfer Act) altered the status or character of the court.
(c)Because it is beyond the power of a State “so to alter the constitution or character of its Supreme Court that it ceases to meet the constitutional description”: Forge v Australian Securities and Investments Commission (2006) 228 CLR 45 at [63], it is beyond the power of the Legislative Assembly to make an enactment incompatible with the status and character required by the description of the court as the “Supreme Court” in s 48A of the Self-Government Act.
(d)The High Court recognised in Kirk that the supervisory role of State Supreme Courts exercised through the prerogative writs is a defining characteristic of those courts and hence not susceptible to deprivation by a State legislature.
(e)The conduct of criminal trials for indictable offences by a judge and jury was an essential feature and defining characteristic of Supreme Courts as understood at federation and there was no capacity to force an accused to be tried by judge alone before a Supreme Court.
(f)The mode of trial was of no less constitutional significance than the jurisdiction considered in Kirk to be entrenched by Chapter III of the Constitution. State parliaments have no power to compel an accused person to be tried on indictment by a State Supreme Court constituted by a judge sitting alone.
(g)The notion of a “Supreme Court” adopted in s 48A includes that same qualification and s 68BA is therefore inconsistent with s 48A and invalid.
There is no authority which directly supports steps (e)-(g) of this argument.
The critical step in the argument is that which converts the historical fact about the mode of trial as at federation into a defining characteristic of a “Supreme Court”. In Kirk the institutional function of the Supreme Courts as at federation included the granting of a writ of certiorari for defect in jurisdiction, notwithstanding the existence of a statutory privative clause: Kirk at [97]. Further, the fundamental structural need for the existence of a supervisory jurisdiction in order to avoid “islands of power immune from supervision and restraint” appears to have been significant in the court reaching the conclusion that the supervisory role of the Supreme Courts exercised through the prerogative writs “was, and is, a defining characteristic of those courts”: Kirk at [98]-[99].
It may be accepted, as part of the background against which this issue must be decided, that community participation in the criminal justice process through the institution of the jury trial is a matter of great structural value and not a mere matter of procedure. The dissenting judgment of Deane J in Kingswell v The Queen (1985) 159 CLR 264 at 299‑303 and the judgment of Gageler J in Alqudsi v The Queen [2016] HCA 24; 258 CLR 203 at [129]-[138] in the context of s 80 of the Constitution make this clear.
Notwithstanding the significance of trial by jury as part of the criminal justice process, the references to “Supreme Court” of a State in the Constitution do not incorporate, as a defining characteristic of such a court that indictable offences must be tried by a jury.
(a)At federation there was a well understood distinction between indictable and summary offences. Trials on indictment were required by legislation to be conducted before juries. There was, however, legislation which permitted the summary trial of certain indicatable offences with the consent of the accused. For example, the Criminal Law Amendment Act 1883 (NSW) provided a mechanism permitting a summary trial of certain larceny offences. The Criminal Law and Evidence Amendment Act 1891 (NSW) allowed attempted suicide and a range of theft offences to be disposed of summarily. The lack of a uniform and mandatory requirement for a jury trial for indictable offences tends to undermine the proposition that it was an inherent characteristic of a Supreme Court referred to in the Constitution.
(b)The proposed constitutionalisation of the requirement for a jury trial by holding that it is an inherent characteristic of a Supreme Court would be conceptually incoherent because it would not address the position in relation to other courts which existed at federation, and exist today, which have the capacity to try charges on an indictment. If it were to be said that trial of indictable offences by jury was an inherent characteristic of a Supreme Court, that would say nothing about those other courts in the States which try charges on an indictment. Current examples are the District Court of New South Wales and the County Court of Victoria. Given the absence of direct reference to such courts in the Constitution other than as courts which may be invested with federal jurisdiction, it could not be argued that they have constitutionally entrenched characteristics which, outside the scope of s 80 of the Constitution, require them to try charges on indictment by jury. Acceptance of the appellant’s argument would constitutionalise jury trials in Supreme Courts but leave unaffected the power of State legislatures to modify or not require jury trials in those other courts. In contrast to the outcome in Kirk, this would be conceptually incoherent.
(c)Given that the only language upon which the appellant seeks to anchor his argument is the name “Supreme Court”, and the contention is based upon the allegedly uniform statutory position in the federating colonies, it is not clear what technique other than judicial whim the appellant contends would permit the entrenched characteristics of what are now perceived to be undesirable characteristics of the jury system as at federation to be discarded. Most obvious among such characteristics is the fact that “criminal juries in 1900 were constituted exclusively by males who satisfied some minimum property qualification”: Cheatle v The Queen (1993) 177 CLR 541 at 560. In relation to s 80 of the Constitution, the constitutional language “trial … by jury” allows a judicial enquiry as to the essential features of that institution. That is a relatively focused exercise. In contrast, the appellant’s argument would involve an exercise at a higher level of abstraction because the only language being interpreted is the reference to a “Supreme Court”. That would make it correspondingly more difficult to discover by orthodox judicial technique what characteristics of the jury system as at federation are picked up and constitutionally entrenched by the concept of a “Supreme Court”.
(d)The formulation of the proposed constitutionally entrenched characteristic of a Supreme Court put forward by the appellant was one which precluded trial by judge alone without the consent of the accused. The qualification that permits a trial by judge alone with the consent of the accused was no doubt included because of the recognition that legislatures around Australia have now permitted accused persons in many cases to make an election for trial by judge alone. However, if the basis for the constitutionalised requirement for jury trials is the state of the law as at federation, there is no basis for such a qualification and laws which permitted such a course would be invalid. The reality is that State and territory legislatures have proceeded in ignorance of the appellant’s proposed constitutional limitation, have modified the nature of jury trials and permitted them to be dispensed with the consent of the accused as well as, in limited circumstances, without the consent of the accused. (Examples of the latter include s 68BA of the Supreme Court Act and s 132(7) of the Criminal Procedure Act 1986 (NSW)). Much or all of this would be invalidated if the appellant’s contention was accepted, at least insofar as the trials took place in a Supreme Court.
Given that the appellant has not established this essential step in his argument, his contention that the reference to the “Supreme Court” in s 48A of the Self-Government Act incorporates within it the essential characteristic that, in the absence of the consent of an accused, trials of indictable offences must be by jury cannot be accepted. In those circumstances, it is neither necessary nor desirable to express any conclusions on the other steps in the argument. It is sufficient, in order to dispose of this aspect of the appellant’s argument, to say that the use of the words “Supreme Court” in s 48A does not impliedly pick up as an essential characteristic of that court a requirement that, in the absence of the consent of the accused, trials on indictment be before a judge and jury rather than a judge alone.
Statutory character argument
The statutory character argument was that because of the legislative history of jury trials within the Supreme Court of the ACT, the reference to “Supreme Court” in s 48A of the Self-Government Act must be taken as denying the Legislative Assembly the power to authorise a trial by judge alone in the Supreme Court without the consent of the accused.
This is an argument based directly upon statutory interpretation and does not depend upon the argument as to the defining characteristics of a “Supreme Court” referred to in the Constitution. The steps in the appellant’s argument are as follows:
(a)There was an unbroken commitment to trial by jury that can be traced back to before federation.
(b)It is unlikely that the Commonwealth Parliament in making the Transfer Act (which inserted s 48A) intended to depart from this feature of the Supreme Court.
(c)Section 48A of the Self-Government Act should be interpreted as preserving as a defining characteristic of the Supreme Court that accused persons must not be tried on indictment by a judge alone unless they consent.
The appellant invoked in support of the contention as to the interpretation of s 48A:
(a)The statements of the principle of statutory interpretation that a parliament should not be taken to overthrow fundamental principles or systemic values unless it does so clearly: Bropho v Western Australia (1990) 171 CLR 1 at 18; North Australian Aboriginal Justice Agency Ltd v Northern Territory [2015] HCA 41; 256 CLR 569 at [11] and the authorities referred to therein.
(b)The statement made in relation to Part VA by the Shadow Attorney-General during the second reading debate on the bill that became the Transfer Act:
The new part was designed to ensure that any laws that were made in relation to the judicial power of the Territory had to be made in accordance with high standards–standards as regards continuity of proceedings, continuity of jurisdiction, protection for the independence of judges, and so on.
The appellant also made reference to s 29 of the Magna Carta (1297) 25 Edw 1 c 29 which provides that a person may not be imprisoned except “by lawful judgment of his peers or by the law of the land”. However, the appellant did not develop any submission based upon this provision, which continues in operation in the ACT, as to the meaning of the provision when it was enacted or what the significance of the words “or by the law of the land” were. Sir Victor Windeyer said of s 29 that its meaning was “extremely obscure” but that it “certainly was not intended to be a guarantee of trial by jury”: W Windeyer, Lectures on Legal History (Law Book Company, 2nd ed (revised), 1957) at 81. It may be put to one side.
The appellant is correct to say that, prior to 1993, trials on indictment were required to be by jury. This was a result of s 395 of the Crimes Act 1900 (NSW) as applied in the Territory which required that if, upon being arraigned, the person pleaded not guilty “he shall, without further form, be deemed to have put himself upon the country for trial, and the Court shall, in the usual manner, order a jury for his trial accordingly”. After the Crimes Act was converted to an ACT enactment, this provision was subsequently renumbered and became s 281. The reference to “put himself upon the country” is explained, as best as it can be, in J Stephen, A History of the Criminal Law of England (Macmillan and Co, 1883) vol 1, 297-298. The statutory requirement that the trial be by jury was given effect by the provisions of the Jury Act 1901 (NSW) that was applied in the Territory, the Juries Ordinance 1932 (ACT) and the Juries Ordinance 1967 (ACT). The appellant characterises the trial by jury of charges on indictment as being “a foundational tenet” of the criminal justice system and the “underlying premise” of the Australian Capital Territory Supreme Court Act 1933 (Cth). This, however, is to overstate the position. The requirement for a jury trial had a statutory basis which identified the requirement for a jury trial and its incidents. That it is an important component of the criminal justice system cannot obscure its basis in statute.
At the time of self-government, and subsequently at the time of the transfer of responsibility for the Supreme Court to the Territory, there was no express attempt to entrench or constitutionalise the requirement for a jury trial. Rather, at self-government both the Crimes Act and the Juries Ordinance 1967 became enactments, subject to the general legislative power of the Legislative Assembly to modify them. This included the power to modify the statutory provisions relating to jury trials.
Given the statutory basis for jury trials and the potential for modification of those provisions following self‑government, the general principles of statutory interpretation relating to infringement of fundamental rights are of no assistance to the appellant. Such principles might have been able to have been deployed if there was some issue as to how to interpret s 68BA itself. That is the specific provision which modifies the entitlement to a jury trial. However, the appellant does not seek to deploy the principles in relation to the interpretation of s 68BA but seeks instead to use them in order to create a requirement for jury trials within s 48A, the most general statement of the jurisdiction and powers of the Supreme Court. The entitlement to a jury trial has never been present within the general statement of the jurisdiction of the Supreme Court. It was not present in s 11 of the Australian Capital Territory Supreme Court Act. The statutory provisions defining the jurisdiction of the court have always been separate from the statutory provisions relating to jury trials and, as a result, to attempt to deploy the principles relating to modification of fundamental rights in relation to such provisions is to seek to deploy them at the wrong target.
Orthodox principles of statutory interpretation do not permit s 48A to be interpreted so as to entrench, unless the accused consents, trial by jury. Section 48A is a statement of jurisdiction. Its precise content is obscure, as is the reason for departing from the relatively straightforward statement of jurisdiction that existed prior to transfer in s 11 of the Australian Capital Territory Supreme Court Act. It has been held to guarantee the existence of the Supreme Court: Re Governor, Goulburn Correctional Centre; Ex parte Eastman [1999] HCA 44; 200 CLR 322 at [78] and to entrench its supervisory jurisdiction: Faull v Commissioner for Social Housing for the ACT [2013] ACTSC 121; 277 FLR 61 at [109].
There is nothing in the text of the provision which supports the appellant’s contention that the reference to “Supreme Court” has embedded within it the carefully crafted qualification that there may be no trial on indictment of a criminal offence by a judge sitting alone unless the accused consents.
There is no implication that necessarily arises from the text of the section, its context within the Self-Government Act or the purpose of the section or the Act which would make the appellant’s submission a valid one.
The historical fact that trial on indictment was conducted before a judge and a jury does not provide a basis for the conclusion that it is an essential characteristic of a “Supreme Court” that trial continue in that way. That is all the more obvious in circumstances where at the time of the enactment of the provision the long-established position was, as a result of the decision in Bernasconi that this was not a constitutional requirement. Had there been any intention to alter the position that existed under the Constitution and to constrain the Territory legislature so as to preclude it from changing the mode of trial of criminal proceedings in the Supreme Court, then the Transfer Act would have done so. While Part VA does contain a series of restrictions on the power of the Legislative Assembly to affect the Supreme Court and its judicial officers, those restrictions have nothing to do with the mode of trial for criminal offences. The carefully articulated restrictions upon Territory legislative power set out in Part VA tend strongly against reading into s 48A a restriction which has no basis in the language used.
Third argument – Bernasconi
The contention that s 68BA was inconsistent with s 80 of the Constitution was outlined in the appellant’s written submissions. While those written submissions were adopted at the hearing of the appeal, they were not elaborated upon in oral submissions.
The appellant contended that the decision of the High Court in Bernasconi is not an insuperable obstacle. He submitted that a distinction could be drawn based upon the nature of the territory in question. In particular, the appellant placed reliance upon the fact that the ACT was created by the surrender of territory by New South Wales and its acceptance by the Commonwealth. He submitted that because of this, the decision in Bernasconi could be distinguished. He submitted that territories that have been surrendered by a State raise different constitutional considerations to other classes of territories subject to s 122 of the Constitution. He noted that upon federation the people of the States agreed to unite in one indissoluble federal Commonwealth under the Constitution and people in the surrendered territories did not lose their membership of the body politic which the Constitution brought into existence. He relied upon the majority judgment in Capital Duplicators Pty Ltd v Australian Capital Territory (1992) 177 CLR 248 (Capital Duplicators) as an example of a case in which the constitutional consequences of a surrender of territory were qualified by what was perceived to be a broader purpose of the Constitution. He submitted that in working out the relationship between ss 80 and 122 of the Constitution the approach advocated by Gaudron J in Capital Duplicators at 288 should be adopted. That involved interpreting the Constitution in a way that “secures to Territorians the same basic rights that the Constitution confers on other Australians, unless the contrary is clearly indicated.”
The broad ratio in Bernasconi (at 635) that “the power conferred by sec. 122 is not restricted by the provisions of Chapter III. of the Constitution, whether the power is exercised directly or through a subordinate legislature” is no longer correct. It was rejected in Spratt v Hermes (1965) 114 CLR 226 at 244-245, 248, 253, 266, 269-270, 275, 277 and is inconsistent with the line of cases culminating in Bradley where it was accepted that territory courts are within the scope of s 71 of the Constitution. The narrow ratio of Bernasconi that the power in s 122 is not qualified by s 80 remains binding upon this court. The suggestion that a distinction can be drawn between territories derived by the surrender of territory by States and other territories is not a distinction drawn in the Constitution itself. Nor is it a distinction which is reflected in the authorities of the High Court, notwithstanding the tentative statement in Mitchell v Barker (1918) 24 CLR 365 at 367 that: “It may be that a distinction may someday be drawn between Territories which have and those which have not formed part of the Commonwealth”. The exception to this is the decision of the majority in Capital Duplicators which must be rationalised on the basis of the particular significance given in the plurality judgment to the creation by the Constitution of a free trade area within the original States. The submission, based upon the judgment of Gaudron J in Capital Duplicators, that the relationship between ss 80 and 122 should be worked out in a way that secures to Territorians the same basic rights that the Constitution confers on other Australians, unless the contrary is clearly indicated, is an invitation to top-down reasoning which this court should not accept.
Bernasconi remains binding upon this court and compels the rejection of this aspect of the appellant’s argument. That is because s 122 of the Constitution is not qualified by s 80. Nor is the general grant of legislative power in s 22 of the Self-Government Act to make laws, including s 68BA.
In those circumstances, it is not necessary to consider the issue that was left undecided by Fittock v The Queen [2003] HCA 19; 217 CLR 508, namely whether an offence against an enactment of a self-governing territory was outside the scope of s 80 because it did not match the description of “any offence against any law of the Commonwealth”.
Miscarriage of justice
Mr Vunilagi contended that a miscarriage of justice has occurred as a result of the proceedings being tried by judge alone and not a jury.
The submission, as developed orally appears to be this. A factor the trial judge took into account in considering the interest of justice aspect of s 68BA was that three of the accused were in custody, a matter which did not apply to the appellant. It was said that this was an irrelevant consideration. It was then submitted that having a trial by judge alone, as opposed to a jury by itself gave rise to a miscarriage of justice because he lost a chance was fairly open to him of being acquitted by a jury.
The appellant’s submission cannot be accepted.
The context in which the order was made for a trial by judge alone was this. The appellant and his co-accused were charged on the one indictment. There was no application by Mr Vunilagi for a separate trial from his co-accused. That is unsurprising given that, as the appellant accepted during submissions, any application was unlikely to succeed. That is because there was a compelling argument that in the circumstances of this case, the interests of justice required a joint trial.
As a result of the appellant’s approach, there was no issue that the interests of justice required a joint trial of the accused. It followed that consideration of the criteria in s 68BA occurred in the context of it being a joint trial. We note that the submissions before the trial judge on this application did not suggest otherwise. We note also that it was not suggested to the trial judge by Mr Vunilagi (or any accused) that the considerations were different as between the accused. Nor did Mr Vunilagi suggest the consequences of a failure to make an order were not relevant. Mr Vunilagi did not attempt to appeal the order made. Nor, as a result of the order, did he seek a separate trial.
The order made was a valid one. That being so, there is no basis to suggest that the appellant did not get a fair trial, or that a miscarriage of justice occurred as a result.
The appellant has not established this ground.
Orders
Each of the appeals must be dismissed. Mr Vunilagi also had an application for leave to appeal against the interlocutory decision of the primary judge ordering that his trial proceed by judge alone (ACTCA 47 of 2020). The necessity for that application was overtaken by an amendment of the grounds of appeal in his appeal against conviction (ACTCA 40 of 2020) so as to raise the asserted invalidity of s 68BA of the Supreme Court Act. Therefore the application for leave to appeal may also be dismissed.
The orders of the Court are as follows:
Vunilagi v The Queen (ACTCA 47 of 2020)
The application dated 9 December 2020 is dismissed.
Vunilagi v The Queen (ACTCA 40 of 2020)
The appeal is dismissed.
Vatanitawake v The Queen (ACTCA 39 of 2020)
The appeal is dismissed.
Masivesi v The Queen (ACTCA 38 of 2020)
The appeal is dismissed.
| I certify that the preceding two hundred and seventy‑nine [279] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Justice Mossop, Justice Loukas-Karlsson and Justice Abraham. Associate: Date: 9 November 2021 |
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