Wheeler v The Queen
[2020] NTCCA 10
•15 July 2020
CITATION:Wheeler v The Queen [2020] NTCCA 10
PARTIES:WHEELER, Terry
v
THE QUEEN
TITLE OF COURT: COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION: CRIMINAL APPEAL from the SUPREME COURT exercising Territory jurisdiction
FILE NO:CA 22 of 2019 (21823971)
DELIVERED: 15 July 2020
HEARING DATE: 15 July 2020
JUDGMENT OF: Southwood, Kelly and Hiley JJ
CATCHWORDS:
CRIME – Appeal – unlawful sexual intercourse – consent in issue – appeal against convictions – fresh evidence – sexually explicit photographs and video recordings discovered after trial – indicative of a consensual sexual relationship – whether miscarriage of justice – concession by the Crown – principles to be applied whether or not fresh evidence – principles to be applied if fresh evidence – Retrial ordered – Crown consents
Gallagher v The Queen (1986) 160 CLR 392; Lawless v The Queen (1979) 142 CLR 659; Mickelberg v The Queen (1989) 167 CLR 259; Ratten v The Queen (1974) 131 CLR 510; Rodi v State of Western Australia (2018) 265 CLR 254; R v Abou-Chabake [2004] NSWCCA 356, referred to.
REPRESENTATION:
Counsel:
Appellant:S Cox QC
Respondent: M Nathan SC
Solicitors:
Appellant:Northern Territory Legal Aid Commission
Respondent: Director of Public Prosecutions
Judgment category classification: B
Number of pages: 10
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINWheeler v The Queen [2020] NTCCA 10
No. CA 22 of 2019 (21823971)
BETWEEN:
TERRY WHEELER
Appellant
AND:
THE QUEEN
Respondent
CORAM: SOUTHWOOD, KELLY and HILEY JJ
REASONS FOR JUDGMENT
(Delivered 15 July 2020)
THE COURT
Introduction
On 18 April 2019, the appellant was convicted by a jury of two counts of sexual intercourse without consent. Count 1 was a charge of cunnilingus. Count 2 was a charge of digital vaginal sexual intercourse. The complainant was SY. On 6 June 2019 the appellant was sentenced to five years’ imprisonment on each count, to be served concurrently, backdated to 30 May 2018 and suspended after serving three years’ imprisonment.
The appellant filed an application for leave to appeal against conviction and an application for an extension of time within which to appeal. On 15 February 2020, his Honour Barr J granted the appellant an extension of time to file an application for leave to appeal and leave to appeal on the single ground that by reason of the discovery of fresh evidence or, alternatively, new evidence, subsequent to trial a substantial miscarriage has occurred.
On 1 July 2020, senior counsel for the Crown, Mr Nathan SC, wrote to the presiding Judge’s Associate and informed the Court that, in the context of the issues in the case, the respondent conceded that the new material relied on by the appellant is sufficiently probative that its absence in the trial caused a miscarriage of justice warranting a retrial of the appellant. The respondent also conceded that the proviso ought not to be enlivened in this case. He was correct to do so.
The two incidents of sexual intercourse which are the subject of the counts on the indictment were filmed by the appellant. It is apparent from the film that the complainant was asleep and unresponsive when the appellant engaged in the sexual intercourse. In his electronic record of interview by police, the appellant stated that the complainant and he were in a sexual relationship. In her evidence at trial, the complainant denied that they were in a sexual relationship. The central issues at trial were the credibility of the complainant; and whether there was a reasonable possibility that she had previously consented to the appellant engaging in conduct such as that with which he was charged and that the appellant genuinely believed that in the circumstances and nature of their sexual relationship the complainant was consenting.
The new material relied on by the appellant was found on a USB stick in the possession of an acquaintance, Ms Yvonne Davidson. It consists of some 15 photos contained in annexures marked “A” to “I” to the affidavit of the appellant sworn on 30 January 2020. In addition, there are two video (mp4) recordings also said to have been filmed on the appellant’s phone on or about 14 July 2017. Those recordings show a person fondling the complainant’s breasts as she is driving a vehicle and show the complainant pulling up her shirt and bra to expose her left breast. In his affidavit, the appellant identifies himself as the person filming the complainant and says that he is the person shown fondling her left breast. He submits that the photos and the recordings demonstrate he was having a consensual sexual relationship with the complainant at the relevant times: in the case of the photos, from 21 May 2017 through to 15 June 2017; and, in the case of the mp4 recordings, on 22 June and 14 July 2017.
In his Reasons for Decision, Barr J stated the following.
The prosecution case against the accused was that, on 22 June 2017 he engaged in two acts of sexual intercourse with the complainant, one following shortly after the other. Because the applicant had filmed himself engaging in such acts with the complainant, the prosecution tendered the audio-visual record, which (the prosecution contended) showed the complainant apparently sleeping or otherwise unresponsive at the relevant time. The prosecution alleged that the complainant was intoxicated or asleep at the time the accused engaged in the acts of sexual intercourse with her and therefore did not have the capacity to consent to sexual intercourse. The prosecution further contended that the applicant knew that the complainant was not consenting to his having sexual intercourse with her; alternatively that he was reckless as to the lack of consent, being aware of a substantial risk that the complainant was not consenting but unjustifiably taking the risk by proceeding to have sexual intercourse with her.
The defence case at trial, in brief, was that the applicant was at all times in an ongoing sexual relationship with the complainant. The case is summarised in paragraph 4 of the affidavit of Susan Cox QC sworn 25 October 2019. Essential issues at trial included whether the complainant consented to the acts engaged in by the accused and, even if she did not consent, whether the accused believed that she was consenting. The prosecution was required to prove in relation to each of the two acts of sexual intercourse that the accused knew the complainant was not consenting; alternatively that he was reckless as to whether she was not consenting; or that the accused did not give any thought to as to whether or not she was consenting.
... whether or not the accused was in a pre-existing and ongoing sexual relationship with the complainant was very relevant, in particular in relation to the accused’s belief as to consent.
The fresh evidence sought to be adduced consists of some 15 photos contained in annexures marked “A” to “I” to the affidavit of the applicant sworn 30 January 2020. In addition, there are two video (mp4) recordings also said to have been filmed on the applicant’s phone on (or about) 14 July 2017. Those recordings show a person fondling the complainant’s breasts as she is driving a vehicle and also show the complainant pulling up her shirt and bra to expose her left breast. The applicant identifies himself as the person filming the complainant and says that he is the person shown fondling her left breast. He contends that the photos and the recordings demonstrate that he was having a consensual sexual relationship with the complainant at the relevant times (in the cases of the photos, from 21 May 2017 through to 15 June 2017 and, in the case of the mp4 recordings, on 22 June and 14 July 2017. The longer of the two mp4 recordings is some evidence (not necessarily conclusive) of an intimate sexual relationship between the complainant and the male involved. A sexual liaison between the complainant and the applicant could be proven, whether by a concession in cross-examination by the complainant or by the applicant giving such evidence, or both.
In an affidavit sworn on 11 February 2020, at paragraphs 19 to 22, the complainant states that she does not know the identity of the male person whose hand/arm is shown in the relevant mp4 video recording; nor does she know who filmed the video. However, she believes that the photos and the video may have been taken by the applicant, although she is unable to say for sure. From this, I conclude that, if she had been asked about the photos and the videos at trial, she would have accepted the possibility, if not the probability, that the applicant was the male person involved. It is unclear at this stage whether she would continue to deny that she and he were in a sexual relationship at the relevant time. However, it would be more difficult for her to deny the existence of such a relationship, given the date on which the photos and the video were taken or made, and the intimate nature of the apparently consensual touching shown in the longer mp4.
The applicant contends that the photos and mp4 recordings constitute fresh, alternatively new, evidence; that they allow a clear inference to be drawn as to the existence of a sexual relationship between the applicant and the complainant (which was denied by the complainant in her evidence at trial); that the evidence also casts considerable doubt on the complainant’s credibility; and that the evidence would have affected the jury’s assessment of her as an honest and reliable witness.
In my opinion, it is arguable that the fresh evidence or new evidence (however it is characterised, and that will be an issue on the hearing of the appeal), in the context of the evidence given at trial, is of a sufficient quality that there was a significant possibility that the jury acting reasonably would have acquitted the accused.
Therefore, the ground of appeal is arguable.
Leave should be granted to the applicant to appeal, and an extension of time granted to enable the appeal to proceed.
Different tests apply to ‘fresh’ evidence and ‘new’ evidence respectively in determining whether there has been a miscarriage of justice sufficient to cause a conviction to be quashed. Evidence is ‘fresh’ if it did not exist at the time of the trial or it could not have been discovered with reasonable diligence.[1] Evidence is ‘new’ if it was available at the time of trial or could with reasonable diligence, have been discovered.[2] Fresh evidence will be received by an appellate court if, when viewed with the evidence given at trial, it gives rise to a significant possibility that the jury, acting reasonably, would have acquitted the accused had the fresh evidence been before the jury.[3] New evidence will only be received by an appellate court if the evidence is strong enough to show that the appellant is innocent or that a doubt as to the appellant’s guilt exists such that the conviction should not be allowed to stand.[4] In which case, the conviction is quashed and the accused is acquitted.
In R v Abou-Chabake,[5] Kirby J (Mason P and Levine J concurring) summarised the relevant principles as follows.
The authorities in respect of fresh evidence have recently been collected and analysed by Giles JA in R v Bikic [2002] NSWCCA 227, and Heydon JA in R v M [2002] NSWCCA 66 at paras 61–64; see also R v Sleiman paras 101–105. The test was stated by Barwick CJ in Ratten v R (1974) 131 CLR 510 at 518–520 (McTiernan, Stephen and Jacob JJ agreeing). It was reaffirmed in Lawless v R (1979) 142 CLR 659 by Mason J at 674–5 (Barwick CJ and Aiken J agreeing). The principles may be summarised as follows:
First, a distinction is made between "new evidence" and "fresh evidence". Fresh evidence is evidence not available to the accused at the time of the trial, actually or constructively. Evidence is constructively available if it could have been discovered, or available at the trial by the exercise of due diligence.
Second, great latitude must be extended to an accused in determining what evidence, by reasonable diligence, could have been available at his trial (Ratten v The Queen (above) per Barwick CJ at 512).
Third, the Court is ultimately concerned with whether there has been a miscarriage of justice. The rationale for setting aside a conviction on the basis of new evidence or fresh evidence is that the absence of that evidence from the trial was, in effect, a miscarriage of justice. That evidence must be examined in the context of the evidence given at the trial (Mickelberg v R (1989) 167 CLR 259, per Toohey and Gaudron JJ at 301).
Fourth, the issue of whether there has been a miscarriage is to be approached on a number of levels, depending upon the order sought (whether a verdict of acquittal or a new trial), and the capacity of the new or fresh evidence to sustain the order sought.
Fifth, where a verdict of acquittal is sought and the new evidence is of such cogency that innocence is shown to the Court's satisfaction, or the Court entertains a reasonable doubt as to guilt, the guilty verdict will be quashed and the appellant discharged. In such circumstances, it does not matter whether the evidence is fresh or simply new (Ratten v R (above) Barwick CJ at 518/519; cf Gibbs CJ in Gallagher v R (1986) 160 CLR 392 at 398/399).
Sixth, where the evidence does not have that quality, or where a new trial is sought, a number of issues arise. The verdict will be quashed and a new trial ordered only where the following questions are answered affirmatively:
·Is the evidence fresh?
·If it is, is it "credible" or at least capable of belief (Gallagher v R (above) per Gibbs CJ at 395), or "plausible" (Mickelberg v R (above) per Toohey and Gaudron JJ at 301)?
·If it is, would that evidence, in the context of the evidence given at the trial, have been likely to have caused the jury to have entertained a reasonable doubt about the guilt of the accused (Gallagher v R (above) per Brennan J at 410) or, if there is a practical difference, is there a significant possibility that the jury, acting reasonably, would have acquitted the accused (Gallagher v R (above) per Mason and Deane JJ at 402)? See Mickelberg v R (above) per Toohey & Gaudron JJ at 301–302.
Seventh, the concept of a miscarriage of justice is not an abstract investigation of truth (cf. an Inquiry under s 474D Crimes Act 1900). It is an investigation in the context of the adversarial nature of a criminal trial. Where deliberate tactical decisions are made on the part of the accused as to the evidence that should or should not be called, and the issues that should or should not be pursued, there is nothing unfair, and there will be no miscarriage, in holding an accused to such decisions, even though it is conceivable that other decisions or something else may have worked rather better (Ratten v R (above) at 517).
On behalf of the appellant, it was submitted that the new material is fresh evidence because it was not reasonably discoverable by him at the time of his trial due to him being a remand prisoner, and due to his misunderstanding of where the photographs and images were stored. He believed they were on his laptop computer but his belief was erroneous. His attempts to find the images on his laptop computer proved fruitless. He only realised after the trial that Ms Yvonne Davidson may be in possession of a USB stick which contained the material. We accept those submissions. They are not contested by the Crown.
In our opinion, the new material is fresh evidence which plausibly supports the appellant’s evidence that the complainant and he were in a sexual relationship. In particular, the longer of the two mp4 recordings is some cogent evidence of an intimate sexual relationship between the complainant and the male involved. The support which the new material is capable of giving to the appellant’s evidence is enhanced by the following statements in paragraphs 21 and 22 of the complainant’s affidavit.
All of the above photos and videos are from a time in my life when I used to take a lot of drugs and I was drinking a lot. It wasn’t unusual for me to go out bush and get my gear off. Nudity wasn’t something that I was shy about. I was off my head and free. I can tell by looking at all of the photos and video’s (sic) that I was off my head at the times these were taken.
I believe that these may have been taken by Terry Wheeler, but I cannot say for sure because I was hanging around a lot of dodgy people at that time in my life. I say that it may have been Terry because Terry takes photos of everyone. He has a laptop full of photos and videos of women and prostitutes. He has what I would call a fetish for anything sexual.
In our opinion, the fresh evidence gives rise to a significant possibility that the jury, acting reasonably, would have acquitted the appellant had the fresh evidence been before the jury at trial. It is likely to have caused the jury to have entertained a reasonable doubt about the guilt of the accused. The absence of that evidence at trial has resulted in a miscarriage of justice. We agree with Barr J that if the jury accepted that the appellant might have taken the photos and mp4 recordings (and the complainant has conceded it is likely he did), they allow a clear inference to be drawn as to the existence of a sexual relationship between the appellant and the complainant (which was denied by the complainant in her evidence at trial). The evidence also casts considerable doubt on the complainant’s credibility; and the evidence would have affected the jury’s assessment of her as an honest and reliable witness. The fresh evidence is capable of establishing a reasonable possibility that, in the circumstances and nature of the sexual relationship between the complainant and the appellant, the appellant genuinely believed the complainant was consenting.
Accordingly, we make the following orders:
1.The appeal against conviction is allowed.
2.The appellant’s convictions of the two counts on the indictment are quashed.
3.There shall be a retrial of the appellant on the two counts on the indictment.
4.The matter is placed in the criminal call over at 2 pm on 13 August 2020.
5.The appellant’s bail is extended on the same terms and conditions until the close of business on 13 August 2020.
6.The appellant is excused from attending at the call over on 13 August 2020 if he continues to be represented by counsel.
-----------------------------
[1] Lawless v The Queen (1979) 142 CLR 659 at pp 674-675.
[2] Ratten v The Queen (1974) 131 CLR 510.
[3] Rodi v State of Western Australia (2018) 265 CLR 254 at [28]; Gallagher v The Queen (1986) 160 CLR 392 at pp 399, 402, 414, 421; Mickelberg v The Queen (1989) 167 CLR 259 at pp 273, 301.
[4] Ratten v The Queen (1974) 131 CLR 510 at pp 517-518; Mickelberg v The Queen (1989) 167 CLR 259 at p 301; R v Abou-Chabake [2004] NSWCCA 356 at [63].
[5] [2004] NSWCCA 356 at [63].
0
4
0