Yarran v The Queen
[2003] WASCA 261
•5 NOVEMBER 2003
YARRAN -v- THE QUEEN [2003] WASCA 261
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 261 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:17/2003 | 2 SEPTEMBER 2003 | |
| Coram: | STEYTLER J MCKECHNIE J HASLUCK J | 5/11/03 | |
| 21 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | ROBIN BRENT YARRAN THE QUEEN |
Catchwords: | Criminal law and procedure Unreasonable verdict Whether open on the evidence Turns on own facts |
Legislation: | Nil |
Case References: | Fox v Percy [2003] HCA 22 Jones v The Queen (1997) 191 CLR 439. , M v The Queen (1994) 181 CLR 487. , Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : YARRAN -v- THE QUEEN [2003] WASCA 261 CORAM : STEYTLER J
- MCKECHNIE J
HASLUCK J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Unreasonable verdict - Whether open on the evidence - Turns on own facts
Legislation:
Nil
Result:
Appeal dismissed
(Page 2)
Category: B
Representation:
Counsel:
Applicant : Mr P J M Sullivan
Respondent : Mr P J Urquhart
Solicitors:
Applicant : Paul Sullivan
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Fox v Percy [2003] HCA 22
Jones v The Queen (1997) 191 CLR 439
M v The Queen (1994) 181 CLR 487
Case(s) also cited:
Nil
(Page 3)
1 STEYTLER J: I have had the advantage of reading the reasons for decision of McKechnie J, with which I agree.
2 The question, in a case such as this, is that of whether it was, upon the whole of the evidence, open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty (M v The Queen (1994) 181 CLR 487 at 493, per Mason CJ, Deane, Dawson and Toohey JJ). However, it is not the function of the Court to answer that question merely by examining the transcript of evidence and the exhibits. Rather, the Court must pay full regard to the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence and to the consideration that the jury has had the benefit of having seen and heard the witnesses: M v The Queen (ibid) and Jones v The Queen (1997) 191 CLR 439 at 451. While there were, as McKechnie J has pointed out, some aspects of inconsistency in the Crown case, there was, on the whole of the evidence, sufficient, in my opinion, to have made it open to the jury, having the benefit of hearing and seeing the witnesses, to be satisfied beyond reasonable doubt of the guilt of the applicant.
3 I would consequently grant the applicant leave to appeal but dismiss the appeal.
4 MCKECHNIE J: On the 23 January 2003 the applicant was convicted of one count of sexual penetration without consent.
5 From that conviction he appeals on grounds which challenge aspects of the evidence and which, although not expressly asserted, invite this Court to allow the appeal if it thinks the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence. No complaint is made as to the content or adequacy of the trial Judge's directions to the jury.
6 The task of the Court of Criminal Appeal is as set out in Jones v The Queen (1997) 191 CLR 439 per Gaudron, McHugh and Gummow JJ at 450 - 452. Of particular relevance is the passage from M v The Queen (1994) 181 CLR 487 at 494. The question is whether on the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
7 I propose to examine the grounds of appeal and transcript of the trial with these principles in mind.
(Page 4)
8 I turn to the grounds of the appeal to which counsel made particular reference in argument:
"1. The complainant was an unreliable witness who gave inadequate evidence to sustain a conviction:
1.1 She suffered from mental illness and was under the influence of drugs at the time of the alleged offence. She had also discontinued her medication prior to admission to the Bentley Mental Health Hospital.
1.2 She was seen laughing and at ease in the applicant's company.
1.3 She questioned the right of the nurse who told the applicant to get out of her room.
1.4 She did not cry out or raise the alarm during intercourse with the accused. The applicant in all the circumstances made an honest and reasonable mistake having regard to his level of education and sophistication.
1.5 She claimed that the police officer wrote out her statement and she merely signed it when explaining differences in her statement and her evidence in court.
1.6 (Abandoned)
1.7 She told the court the police officer had said to her she was a sick girl and that they were going to look after her.
1.8 When the applicant approached her initially she revealed intimate details of not having had intercourse with her husband for 5 years when a simple 'No' would have been sufficient. This revelation it will be submitted reflects a degree of closeness.
1.9 She told the court that the applicant had never asked her if she would get pregnant despite it being in her statement.
(Page 5)
- 1.10 Dr Hussain determined that the complainant had paranoid ideation on 4 April. He told the court she exhibited paranoid delusions and excessive grandiosity. She had not kept up her medication. On 6 April when he saw her she was over-sedated.
- 2. The police officer took statements on [sic] from staff and not from patients. In particular a dark skinned patient who the applicant had described as an Arab. The police officer Swannells had promised to interview this patient whilst interviewing the accused.
3. Michael Bright saw the parties in close proximity in the smoking area and heard the complainant raise her voice. He was unable to tell the court whether this was passion or anger.
4. Dr Bardsley described two bruises above the knee and one below as 'fairly recent'. Intercourse had occurred and there was a tear to the vaginal area. This evidence was not favourable to the defence or the prosecution.
5. Paul Sherlock said the applicant and the complainant appeared on friendly terms. He has a recollection of the applicant's arm around her shoulders.
6. The Crown witness Prosser told the court that the complainant never seemed uncomfortable with the applicant's attention.
7. The applicant gave evidence in this matter and it is submitted that his evidence is consistent with the defence of honest and reasonable mistake in all the circumstances given his level of education and sophistication."
Overview of the case
9 On 6 April 2001, the applicant and the complainant were psychiatric patients at the Bentley Hospital. The complainant was in Ward 6 which was a secure ward. The applicant was admitted to Ward 6 that afternoon. They had not previously met.
(Page 6)
10 In the evening the complainant went to bed, having been given medication to help her sleep. It was the Crown case that the applicant came into her room and had sexual intercourse with her without her consent.
11 The applicant was arrested by police and took part in a video record of interview which was broadly consistent with his evidence. His case was that intercourse did occur in the early hours of 7 April 2001. He had intercourse with the complainant three times that night and on each occasion it was an act of consensual intercourse, or, alternatively, he honestly and reasonably but mistakenly believed she was consenting.
The evidence of the complainant
12 The complainant gave evidence that she was 51 years of age at the time of trial. She was in a relationship and had been in that relationship for some 9 years. She gave evidence that she had not had sexual intercourse for 5 years with anyone. When she came under the care of Bentley Hospital her partner and she just stopped having sexual intercourse. She had been admitted to Bentley Hospital prior to April 2001 and she was there for three days at that time for treatment for her mental illness which was manic depressive bipolar disorder. She had never seen the applicant before. When she first saw him, he was rolling around the floor and his mother was with him. The complainant went to the smokers' area and shortly afterwards the applicant came out for a cigarette. She said, in her evidence, that:
"He [the applicant] said, 'They've got [the applicant's name] written on the packet', because I was smoking the same packet and then he reached over to touch my groin, my vagina and I said, 'I don't do that' and I got up and walked out."
13 The complainant went to get a drink in the dining room because she had missed the supper trolley. She said that she sat down and the applicant came and sat down beside her and said:
"'See that finger? It can do 20 things. It's magic.' It was then that I got up and said to the staff, 'Could you watch him. I'm going to bed'."
(Page 7)
14 The complainant was given two sleeping tablets and went to bed wearing a satin shortie pyjama set. She got into bed and went out like a light because she was heavily sedated. She then said:
"I was facing the wall and not long after I'd gone to sleep somebody touched me. The next thing I knew the sheets were off me, my little pants to that suit were off me and [the applicant], whatever his name is, was on top of me having sexual intercourse maybe for half an hour and then a light was shone through the door. Whether they saw him coming into my room or they were just doing a check - they do a check every half an hour.
…
What happened, if anything, when the light was shone in?---He jumped on the other side of the bed.
… then I said, 'You better get out of here,' and when Sarah come along with the torch she said, 'Get out of here now.'
… I told him to leave when he even got on top of me."
15 The complainant said that the applicant had said to her: "You are too tight, I can't do anything".
16 The applicant did not kiss the complainant and he did not touch her breasts. After the incident the complainant went to sleep. She did not scream or shout because "… I was devastated really that such a thing could happen." In the morning she spoke to a nurse and said: "I think I was raped last night." She was then taken to the Sexual Assault Referral Centre.
17 In cross-examination the complainant said that she had been on medication for nearly 9 years and it consisted of "… 2 lithium morning and night. … two sodium valproates morning and night and … two little white ones; … and two sleeping tablets at night." She was asked to describe the effects of the medication on her at the time. She described it as making her a bit dizzy. Her evidence was that she had lived in New Zealand for 23 years without incident, was married, but following her divorce she had a nervous breakdown when she came to Australia. She read the police statement before she signed it and was satisfied it was a correct statement. She had taken medication before she came to court and she was currently on about 14 tablets a day. It
(Page 8)
- was put to her that she did not include details of the applicant rolling around the floor in her statement. She said the statement was written out by the police officer and she signed it:
"'… Well, he told me what to do. He says to me, 'Do this [the complainant] and we'll sign it for you,' he said, 'Because this is what the truth is and you're a very sick girl,' and he said, 'We'll help you do it.'"
"… as I understand it you didn't actually refuse sex with the accused. You told him to leave. Is that right?---No. I said, 'I don't do it and I haven't done it with my husband back in New Zealand,' and I hadn't done it with the man I'm living for - for 5 years.
And was this said in the smoking area or was it said - where?---No. I think it was said in the - dining area.
So you elaborated on your explanation as to why you weren't prepared to have sex with him because you said that you hadn't done it with your husband for 5 years?---It wouldn't matter who it was I wouldn't have sex with.
Did you know where the accused's room was?---No.
So at no time do you say that you ever went into his room?---No."
(Page 9)
19 She said that after he had fondled her, she went to the staff and said:
"Could you please watch this man. He's dangerous. He's just told me that his finger can do so much, … I don't like the look of him from the time he came in. He's either on drugs or he's drunk or something. He has come from a funeral …"
20 The complainant said this to nurses she knew as Sarah and Toby. She also said: "I'm going to bed. Can you please watch that man?" They said: "Yeah, alright." She agreed she had spent between a half and hour and an hour with the applicant in the smokers' area. The comment about the finger was made in the dining room. She agreed that she was not easy to arouse from sleep when she had taken her medication. She was unaware of the applicant prior to waking up when he was penetrating her. She did not scream or shout because she was devastated that such a thing could happen. She did not raise her voice or shout an alarm. As soon as the person who shone the light in had gone, the applicant jumped out of bed and ran out. She said the applicant penetrated her "inside" four times and he said: "You are a bit tight" and then he "hopped off and went to go and it was too late, the light had come."
21 The complainant said that in the dining area she had said: "I don't do it and I haven't done it with my husband back in New Zealand and I hadn't done it with the man I'm living with for 5 years". When questioned why she did not say anything immediately she said: "Because I went to sleep" and because she heard Sarah say: "You shouldn't be here. Get back to your room." That was said to the applicant outside her room. She denied saying to any nurse that the nurse had no right to stop people going to her room. She said:
"I've never stopped anyone going into my room but it didn't mean to say that he could come into my room. Mainly females. I made a lot of friends and they used to come into my room and we used to read books and do things."
22 The complainant maintained her denial that she had given her consent to sexual intercourse throughout her cross-examination.
23 The prosecution called a large number of psychiatric nurses who were on duty during 6 April 2001 and into the next day. They all worked shifts, so there was a degree of overlap in their evidence. At various times each witness made observations of the applicant and
(Page 10)
- complainant. As might be expected, the nurses had other duties and patients and did not keep the applicant and complainant under constant observation. I will not set out all the evidence but will summarise the salient witnesses.
24 Ms Waru and Mr Jones gave evidence about the morning of 7 April 2001 when a complaint of sexual assault was made. Ms Waru gave evidence that the complainant was in room 3 and the applicant was allocated to room 2.
25 On 7 April 2001 when Ms Waru entered the complainant's room the complainant made a complaint of sexual assault from the previous night. Ms Waru commented that the complainant, even when she was really unwell, tries to dress impeccably and noticed that the complainant's pyjama shorts were on inside out. The applicant was calling out to the nurses for his shoes and Ms Waru saw a pair of black shoes in the complainant's bedroom, down the bed, facing the door. She asked the applicant if these were his shoes and he said they were and he took them and put them on his feet. Later the complainant pointed to a packet of cigarettes in her room. Ms Waru saw that it had the applicant's name on it. (It was the hospital's practice to label patients' cigarette packets.) On the day before, the complainant was heavily sedated. She was slightly irritable and paranoid with her beliefs pertaining to her illness.
26 Mr Jones commenced work at 7 am. He woke the complainant and she told him that "some guy had been into her room during the night and had sex with her against her will." In cross-examination he was taken to her statement where he said:
"… she told me a black fellow came into her room and she thought it was her boyfriend Roy. She realised that it wasn't Roy and knew it was another patient."
27 Mr Jones indicated he was not intending to quote her directly in the statement.
28 The two nurses on duty in the ward during the relevant time the previous evening were Sarah Sally Allan and Paul Alwyne Sherlock. Ms Allan was asked:
"Did you see any interaction in your shift between the [applicant] and [complainant]?---I did.
(Page 11)
- … They were just basically hanging out together. They were coming to the office for cigarettes. They first got cigarettes in the drawer that I was sat next to at the time and they were just basically coming and asking for cigarettes together and taking them out into the smoking area. … We put coffee out at 10 o'clock. They had coffee together and then commenced going back out to the smoking area."
29 At no time did she see any physical interaction between them.
30 After Ms Allan had been asked to get sleeping medication for the complainant, she saw the complainant head down towards her bedroom. Shortly afterwards, Ms Allan saw the applicant approaching the complainant's bedroom. She intercepted him and told him to come out, that he was not allowed in there and told the complainant the same thing. Some five minutes later she saw him walking into the bedroom. He had only been in the bedroom about two seconds and she brought him back out of the bedroom out and explained to him "that it wasn't on".
31 On the second occasion Ms Allan spoke to the complainant and the complainant told her that:
"… I didn't have any rights to tell her who could go into her room or not but I said that I did and that I was going to get the medication. I wanted to see her getting ready for bed and getting into bed."
32 Ms Allan subsequently gave the complainant the medication. She checked "at about 10 to 1" and they were both in their rooms. Later Ms Allan saw the applicant in the corridor walking towards the bottom of the corridor up towards where the nursing station is at about 1 o'clock. He was heavily sedated. She took him back to his room.
33 Mr Sherlock gave evidence he was on the night shift starting at 9.15 pm. He did not see any interaction between the applicant and the complainant. At 12.20 pm he saw the complainant coming up the corridor with the applicant. The applicant had his arm around the complainant, but as he saw Mr Sherlock he moved back away from the complainant. As the complainant passed, she said: "Don't let that bloke into my room tonight." The complainant said this in a volume sufficient to be well heard. The applicant was "… a pace, two paces" from her. Mr Sherlock said he replied:
(Page 12)
- "Yeah, that's fine, [complainant]. Don't worry about it. She'll be fine."
34 As they moved towards their respective rooms he saw the applicant start to move towards the complainant's room so he stopped him and said:
"… sort of 'Oi, you know, that one's yours, this one's hers'. During the course of the night, probably about the next 30 minutes or so, I kept asking him to sort of go back to his room. He would come out and move towards [the complainant's] room and I would send him back. He came out and I said to him, 'Look, she said that she doesn't want to see you tonight.' He said, 'I just want to say goodnight to my mate.' I said, 'Look, she said she doesn't want to see you tonight. She's trying to settle down for sleep. Go back to your room, please.' He went back."
35 Mr Sherlock returned to the nurses' station and kept an eye out on the particular area. The applicant again kept coming out of the room but instead of going down:
"… it was enough that I would just stick my head out of the door and say, 'Excuse me. What have I just said? Go back to your room, please.' Eventually, I had to go down there and say to him, 'You are not permitted - any patient is not permitted in another patient's bedroom, at this time of night especially,' at which point he just went back to his room.
36 When the complainant said to tell the applicant not to go into her room, it was in the volume of voice "sufficient to be well heard". At about 1 am Mr Sherlock did a check. The applicant was not in his room. Mr Sherlock then went into the complainant's room using a torch. He continued his inspection of the rest of the ward and as he was doing another sweep he saw the applicant come around the corner and go back to his room.
37 In cross-examination he said that when the complainant approached him and spoke about the applicant she looked worried. He said that he had never spoken to the complainant about making physical contact with other patients because he had never had to and was unaware whether any other person had done so.
(Page 13)
The evidence of other nurses
Eulogia Blakeney
38 Ms Blakeney was on duty in Ward 6 on 6 April 2001. During the day she did not see any interaction between the complainant and the applicant. The complainant appeared quite withdrawn. She appeared to be sedated and was keeping to herself a lot, spending a lot of time in her room and going out only to smoke. In cross-examination she said that she had other tasks but she was "pretty aware of what's happening with most of my patients. I was watching them." She agreed that the smoking area is not visible in its entirety from the nurses' area.
Brenda Jane Fleming
39 Ms Fleming was working the night shift on 6 April 2001. She saw interaction between the applicant and the complainant:
"I remember when I had come out of hand-over I saw [the complainant] and [the applicant] in each other's company. They looked very happy together, enjoying a joke or a laugh, and they were constantly walking next to each other, up and down the passageway or into the courtyard that runs off the ward area, smoking cigarettes."
40 Ms Fleming observed no physical contact. When the complainant went to bed, she observed the applicant follow her towards her room and try to follow her into the room. Two staff members approached him and told him not to go into the complainant's room and the applicant said "We are great friends". In cross-examination Ms Fleming said she did not hear the complainant complaining about any approaches from the applicant.
Alison Martin-Hope
41 Ms Hope, who is a registered mental health nurse, gave evidence that she was working in Ward 6 at 2 pm until about 10 pm. She observed no interaction between the complainant and applicant. At one point she observed the applicant "laying on the floor near the nurses' office door" dressed in a either a suit jacket or an entire suit. She thought he looked quite well dressed.
Michael Shaun Bright
42 Mr Bright, a registered mental health nurse, gave evidence that he was on the afternoon shift from 3 pm until 9.30 pm. He saw brief
(Page 14)
- interaction between the complainant and the applicant outside the smoking area. It was a verbal interaction of about two minutes. He did not hear the applicant's voice, but he heard the complainant's voice and it was raised. At the end the applicant left. The voice indicated anger on the complainant's behalf. He heard no laughing.
Graham Prosser
43 Mr Prosser gave evidence that he was a registered mental health nurse in Ward 6 on Friday 6 April 2001, working an afternoon shift. He was asked to do an extra shift beginning at 9.15 pm and finishing at 7.15 am. He noticed some interaction between the complainant and the applicant:
"I saw them both talking quite happily together, although I noticed [the applicant] was probably more persistent in keeping the conversation going and following [the complainant] around and talking with her, but she seemed quite happy with the interactions that they were having."
44 He saw them "in the dining room, in the lounge area, in the corridors and probably the outside area where the patients go for a cigarette." After they had gone to bed, he saw the applicant attempting to go into the complainant's room and two other staff let the applicant know he was not able to do this. This happened on two or three occasions. At no time did he see the applicant and complainant kissing, or the applicant fondling the complainant's breasts. He observed both Sarah Allan and Paul Sherlock going into the complainant's room and talking to the complainant and the applicant.
The evidence as to the complainant's medical condition
Salam Hussain
45 Dr Hussain is a psychiatric registrar who in 2001 was working as a medical officer at the Bentley Health Service and had patients in Ward 6. On 4 April 2001 he observed the complainant:
"She was agitated. She was overtly aroused and with some paranoid ideation. She was overtly manic, which gave me the opinion that she wasn't compliant with her anti-manic medications, …
She was on mood stabilisers, two mood stabilisers, which is lithium and sodium valproate.
(Page 15)
- … and the anti-psychotic which the olanzapine, and the arousal management medication which include the clonazepam and lorazepam."
46 Dr Hussain said that on 6 April 2001 the complainant was overtly sedated and unable to give coherent information, as if deeply in a sleep state, and he reduced the medication. He saw her on 9 April 2001, the following Monday and he said:
"… We test her in terms of delusional belief and on other areas of mental state whether she was delusional at that stage or not, and she wasn't delusional in terms - her reality testing was - was good at that stage."
47 In cross-examination Dr Hussain described bipolar affective disorder. He said:
"It's an illness which can turn to poles which is the depression in one side and mania on one side, so people might fluctuate from depressive phase to manic phase, thus we call it bipolar affective disorder, 'affective' meaning anything related to mood."
Dr Huw Williams
48 The Crown called Dr Williams who is a consultant adult psychiatrist with the Bentley Mental Health Service and who examined the complainant on 9 April 2001.
49 Dr Williams' diagnosis of the complainant was that of bipolar affective disorder, currently manic. He said probably 20 per cent of people with mania would have psychotic symptoms which means that they are out of touch with reality. He said someone who is not psychotic is in touch with reality and although their mood is elevated and their judgment may be impaired do know what is going on; 20 per cent of the time though such people are psychotic, which means they are not in contact with reality, do not understand what is happening in their surroundings and are unable to really give proper judgment about what is happening to them. His diagnosis on 9 April 2001 was that there was no evidence that the applicant was psychotic and she was completely in touch with reality.
(Page 16)
Robyn Marjorie Lilly
50 Ms Lilly was a mental health nurse working in Ward 6 from 2.30 pm until 10.30 pm. She did not recall any interaction between the complainant and the applicant. Her assessment of the demeanour of the complainant was:
"All I can recall is [the complainant] was quite labile in mood. She was, with me, quite high sometime and quite very low at other times. That's all. And a bit fatuous in the sense that she was a little bit intrusive and a little bit high with her - her mood, when she was like that. That's all I do recall."
- The complainant did not remain in this condition for the entirety of the shift, only when she was being given her medication.
Dr Joyce
51 Dr Joyce is a clinical pharmacologist specialising in toxicology. On the drugs that the complainant was reported to have taken, he said they would all be exerting some therapeutic effect and in addition "a couple of them would be having effects on her overall degree of alertness and arousal … the drugs would not be producing any unexpected effects on her alertness or ability to understand things because they were just what she was used to. None of those three are intrinsically likely to do that anyway". It would be pretty unlikely, maybe even very unlikely, that she would be over-sedated at a half an hour after retiring having taken 1 milligram of clonazepam before retiring. The dosage history and the observer's observation would predict that she could be aroused from sleep quite easily. Having been aroused from sleep she would know where she was. She would know what was going on around her. She would be able to comprehend approaches that were made to her and she would be able to withhold consent or grant consent and she would have a preserved memory of events that happened.
The medical evidence following the incident
52 Dr Bardsley is a medical practitioner at the Sexual Assault Resource Centre, having worked there for 10 years. She examined the complainant on 7 April 2001. She observed three bruises on the complainant's leg, two on her thigh or her upper leg and one on her lower leg and they appeared to be fairly recent bruises. They could have been caused by pressure from fingertips or finger pads. During the internal examination she noted a number of foreign particles scattered
(Page 17)
- over the labia minora and labia majora, three fine superficial linear split type lacerations in the fossa navicularis, which is an area behind the vaginal opening and in front of the junction of the two labia majora. These were injuries more likely to occur if there was no lubrication. She observed two hairs in the vagina.
53 In cross-examination Dr Bardsley agreed that the bruises were consistent with pressure from fingers or any other object of similar size or content. She agreed that an older person would not have the same elasticity as a woman of child-bearing age. She agreed that a postmenopausal, woman who was not on hormone replacement therapy, would not have the same elasticity in that area as a child-bearing woman and to that extent might be more vulnerable to tears.
54 Mr Aleksander Bagdonavicius, a senior scientist at PathCentre, gave evidence that the sperm cell fraction of the high vaginal swab taken from the complainant, when compared to the applicant's reference sample, gave the same DNA profile.
The police evidence
Glenn Raymond Swannell
55 The prosecution called Sergeant Swannell who is a police officer who conducted a video record of interview with the applicant. In cross-examination he said that he had prepared the complainant's typewritten statement from an earlier handwritten statement taken by another officer and further information included as a result of speaking with the complainant.
56 The following interchange occurred:
"So, sergeant, you have heard what the complainant said?---Yes.
So my obvious question to you - and you will understand I have to ask you this - is: did that occur?---No, it didn't.
Thank you. So the contents of her statement are what she said. Obviously not what you have put in the statement. It's what she said?---Definitely. As I've said before, the typewritten statement was exactly as per the handwritten statement, bar one or two paragraphs that I included, as I said before, as a result of speaking to her, other information that she gave to me.
(Page 18)
- She read that statement through before she signed it and then she signed it?---Yes.
She didn't correct that statement in any way?---No."
57 In re-examination Sergeant Swannell said:
… did you ever offer her words of reassurance during the course of that?---Words of reassurance; I probably did. As you're speaking to any - any other witness or any other victim or complainant, I'm sure I would have been understanding and tried to be sympathetic, if that's what you mean by words of reassurance.
Words - well, perhaps I can explain that you would assist her with taking it through the criminal justice system, for example. You would help her with that?---Certainly, as I've done, yes."
58 Sergeant Swannell recalled he could not locate an Arabic man with a beard. From his enquiries, no such person existed. Sergeant Swannell denied what the complainant said at p 67 of the manuscript about writing out the statement and saying: "Because this is what the truth is and you're a very sick girl". In re-examination he said that he probably did use words of reassurance: "I'm sure I would have been understanding and tried to be sympathetic" in order to assist her with taking it through the criminal justice system.
The applicant's evidence
59 The applicant gave evidence that he was a smoker and the Bentley staff wrote names on the cigarette boxes to indicate to whom they belonged. He booked in at lunchtime. He went into the smoking room and spent about an hour with the complainant. Relationships were cordial: "She reckoned I'm a nice bloke". He said that the complainant started talking about her relationship and how it was muddled and messed up. He said that he touched her on her vagina and on her tits and:
"… Before I knew it I was talking sexually to [the complainant] and she never said nothing much. Then she reckoned I'm a good person and she wanted to know if she could see me again and I went down - then I went down to her room and had sex with her. … I told her I would be there
(Page 19)
- in 10 minutes time, … She didn't say nothing at all. She just smiled."
60 The applicant said he did not observe any communication between the complainant and any of the nursing staff. In five minutes he went to the room but the nurse "caught me near the room". He said:
"… first we got caught out because the nurse come and caught us and [the complainant] said that she didn't want to have anyone in her room, you know what I mean? So then I came back around about a couple of minutes later. Then I had a quickie with her … just after midnight. She didn't say nothing to me at all. If she indicated to me anything, I would have stopped. ... It's not my fault. I went there for help and this is all the help I get. … The nurses come in and put torches on. … I was underneath the blankets. [Intercourse on that first occasion lasted about 15 minutes, 10 minutes] … She was telling me how good I was. [After the nurse flashed the light] I just went to my room and that's when [the complainant] she followed me after and she had sex with me - and then she had sex in my room … about 10 minutes after [for about 10 minutes]. … [S]he was on top of me. … She went back to her room. … I went back to her - back to her room. … about an hour and a half later … [and had sex with her] for about 15 minutes. … I left [a] pair of shoes and smokes [in her room]. [Next morning] … I said 'They're my shoes'."
61 The applicant said that, in the smoking room, the complainant had unzipped his zip and "started playing" with him. He said that he did not make any comment about his finger.
62 In cross-examination the applicant said he thought the complainant would probably find him attractive. He denied that he was lying on the floor when he was admitted. He said that the complainant was the same in appearance as when she was giving evidence in court. He agreed he had told the police that she was sedated but not heavily.
Conclusions
63 I have gone through the transcript to highlight some of the salient features. The jury, of course, had the advantage of hearing all of the witnesses, including, importantly, the complainant and the applicant,
(Page 20)
- giving evidence. The enumerated particulars of the grounds of appeal focus on some parts of the evidence but not on others.
64 While there were minor inconsistencies in parts of the complainant's case, she did not waiver from the essential and important events and her evidence in respect of some of those matters was in fact consistent with the other evidence. Importantly, it is broadly consistent with the evidence of Mr Sherlock as to her attitude towards the applicant just before she went to bed.
65 There is no evidence that on the night in question the complainant was suffering from paranoid delusions. Although there was a degree of paranoid ideation on her admission, she was prescribed medication to deal with her condition to such an extent that she became over-sedated.
66 The complainant was not delusional about the fact that intercourse occurred: it was admitted that it did. It does not follow that because a person suffers from a mental illness they are thereby an unreliable witness.
67 Counsel argues that the applicant gave evidence and his evidence is consistent with the defence of honest and reasonable mistake in all the circumstances, given his level of education and sophistication.
68 It is difficult to see how the question of mistake arises. The applicant's evidence was emphatic that consensual intercourse occurred not once, but three times, on one occasion, in his room when the complainant followed him in circumstances where she initiated that particular sexual activity. This is against a background where the complainant was heavily sedated.
69 This case is very much one where there is a distinct advantage to a jury seeing and hearing the evidence unfold, making evaluations about it. This is no mere incantation: cf Fox v Percy [2003] HCA 22 at [29].
70 Having reviewed the evidence, there is nothing in the matters raised in the particulars to the grounds of appeal which either singly, or collectively, lead me to the conclusion that it was not open to the jury to convict.
71 The matters raised are either matters of comment or of possible inconsistency with other evidence in matters peripheral to the alleged offence. The extent to which they raise inconsistencies and the extent to which they affected the complainant's credibility were matters for the
(Page 21)
- jury. They do not give rise to any inherent improbability in the complainant's account sufficient to lead to the conclusion that the verdict was unreasonable or could not be sustained having regard to the evidence. In my opinion the verdict of the jury was open on the evidence and was not an unreasonable verdict in the circumstances.
72 I would grant leave but dismiss the appeal.
73 HASLUCK J: I am in agreement with the reasons for decision of McKechnie J and with the orders proposed. It follows that I would grant leave but dismiss the appeal.
0
4
1