AK v R [2016] NSWCCA 175 | Case summary

Conclusion

Accordingly, it seems to me that the evidence proposed to be led by the defence from Dr Lyneham was relevant and should have been admitted. It is not possible to conclude that the admission of this evidence would not have affected the verdict, in short, that the appellant has not been denied the possibility of acquittal. The Crown prosecutor did not submit that, if error were shown, the conviction should not be quashed. At all events, this not a case in which the proviso should be applied. In my opinion the appeal should be allowed, and a new trial ordered.
FULLERTON J: I have read the judgments of Adams J and Hoeben CJ at CL.
I agree with the order proposed by Hoeben CJ at CL that the appeal be dismissed. I also agree with his Honour's reasons for concluding that error has not been demonstrated in the trial judge's refusal to permit the accused to lead evidence from Dr Lyneham concerning the likely explanation for the episode of heavy nocturnal bleeding the complainant recounted in an interview with police in October 2012. I would, however, prefer to express my own reasons for concluding that the evidence was properly excluded as irrelevant or at least not relevant in the way the argument was advanced by defence counsel at trial.
Although it will not be necessary to refer to the evidence at trial in detail (Adams J's summary of the evidence providing the context in which the appellant sought to have Dr Lyneham called in his case), there are features of the complainant's evidence that do need to be emphasised including, in particular, the circumstances in which she came to recount to police the episode of heavy bleeding; her account of when the bleeding episode occurred; and her answers to questions asked in cross-examination about it. It is only by a consideration of that evidence that defence counsel's arguments contending for the relevance of Dr Lyneham's evidence under s 55 of the Evidence Act can be assessed.
The effect of the complainant's evidence was that the appellant's sexual abuse of her changed character on the evening of 7 December 2011. On that night, as he was driving her home after an awards ceremony at her high school, he digitally penetrated her vagina. That allegation was the subject of one of six counts of aggravated sexual intercourse laid contrary to s 66C(4) of the Crimes Act, and the first in time of those six counts. The complainant's evidence was that prior to that date, and over a period of years from 2008, the appellant's sexual mistreatment of her was limited to repeated assaults of her with acts of indecency. That conduct was the subject of counts 1 to 8 on the indictment.
The first complaint of penile-vaginal intercourse was made in the complainant's second interview with police on 9 July 2012. In that interview the complainant nominated two particular occasions between 31 December 2011 and 1 March 2012 when the appellant entered her bedroom after she had gone to bed and had sexual intercourse with her. These were the subject of counts 10 and 12 on the indictment. She also nominated another occasion in the week before she went to Japan on 7 April 2012 when the appellant entered her bedroom and had sexual intercourse with her. This was the subject of count 19 on the indictment. It was her evidence that this was the last occasion sexual intercourse occurred.
In the Crown's Summary of Trial, the evidence in respect of those three counts is summarised as follows: Count 10 During January 2012 school holidays, between 31 December 2011 and 1 March 2012 the complainant (aged 15 years) was in her bed when the appellant walked into her bedroom. He lifted up the covers and got into bed with the complainant, laying behind her and cuddling her from behind. The appellant pulled the complainant's underpants down and from behind, he put his penis in the complainant's vagina. The appellant moved his body back and forth, and caused pain to the complainant. The complainant believed he ejaculated in her vagina, before leaving her bedroom, without saying anything. Count 12 Between 31 December 2011 and 1 March 2012, on an evening in February 2012 after school had resumed for the year, the complainant (aged 15 years) was in her bed asleep wearing dark blue nightie. The complainant awoke to find the appellant laying behind her in her bed, and the penis of the appellant inside her vagina. The appellant moved his body back and forth, grunting as he was doing so. The appellant then left the complainant's bedroom without saying anything. Following this, there was blood on the complainant's bed linen and on her nightie. In cross-examination the complainant agreed she woke up to find the appellant's penis inside her vagina or just inside her vagina. She agreed she must have got into her bed and pulled down her underpants while she was still asleep. She agreed she must have been in a deep sleep and all of that happened without her waking up. Count 19 On an evening before the trip to Japan, between 1 April 2012 and 7 April 2012, the complainant (aged 15 years) was in her bed. She was still awake when the appellant walked into her bedroom. He was not wearing any pants or underwear. He lifted up the covers and got into bed with the complainant, laying behind her and hugging her. The appellant pulled the complainant's underpants down to her ankles, and from behind, he put his penis in the complainant's vagina. The appellant then moved his body back and forth. The complainant made noises due to the pain. The appellant pushed the complainant's face into her pillow, in an effort to muffle her noises. This caused great discomfort to the back of the complainant's head and neck area. The complainant described feeling like she was suffocating. The complainant believed he ejaculated in her vagina, before leaving the complainant's room, without saying anything.
The acts of sexual intercourse the subject of count 13 and counts 16, 17, and 18 were detailed by the complainant in her fourth record of interview on 31 August 2012. Save for the conduct the subject of count 13, which the complainant said occurred in the study on a day between 31 December 2011 and 1 April 2012 when she was not at school, the sexual intercourse alleged in counts 16-18 occurred in the complainant's bedroom, on each occasion after she had retired for the night. The conduct comprehended by counts 16 and 17 was alleged to have occurred between 29 February 2012 and 1 May 2012 and the conduct the subject of count 18 between 23 and 26 March 2012.
In the Crown's Summary of Trial, the evidence in respect of those counts is as follows: Count 16 Between 29 February 2012 and 1 May 2012 the complainant (aged 15 years) was in her bed. She was laying under the doona and was wearing her dressing gown only. The appellant walked into her bedroom, threw off the doona covers, and ripped open her dressing gown. The appellant pushed the complainant's head down with both hands. The appellant pushed his hand down on the complainant's left shoulder and forced his penis into her vagina. The complainant recalled a lot of pain when the appellant "pushed in and out", referring to his penis and her vagina. The appellant then withdrew his penis, let go of the complainant's shoulder and walked out of her bedroom without saying anything. Count 17 The same evening, the appellant went back to the complainant's bedroom. The appellant put the complainant's face into her pillow, then had sexual intercourse (penile-vaginal) with the complainant. The complainant was still wearing her dressing gown, which was open, at this time. In cross-examination the complainant agreed … she screamed but her face was in the pillow so no-one could hear her. She only screamed when he was aggressive. Her estimate was that she screamed about three times. The appellant often made grunting noises and harsh breathing noises. They were not very loud. He did not make grunting noises every time he had sex with her, but most times. Count 18 Between 23 March 2012 and 26 March 2012 the appellant played in the Grand Final for his local cricket club. That evening, the complainant (aged 15 years) was at home with her mother. The complainant was asleep in her bed. The complainant was awoken that evening or early the following morning by feeling the appellant's penis inside her vagina. After the appellant took his penis out of the complainant's vagina, he left the complainant's room and went to his bedroom to be with the complainant's mother. . In cross-examination the complainant agreed she only woke up when she felt the appellant's penis inside her vagina. "Well, obviously, being woken up most nights has taken a toll. You know, I wasn't sleeping. I didn't sleep during the day so I had to sleep at some point". It was put to her that there was no incident at all when he went in and commenced sexual intercourse with her while she was asleep. She disagreed, "Well there was".
The complainant told police in both the second and fourth records of interview that the appellant had sexual intercourse with her on other occasions between late December 2011 (the earliest date of the first act of penile intercourse, the subject of count 10) and 7 April 2012 (being the last act of penile intercourse, the subject of count 19). The complainant also told police that "after the school holidays [in January 2012] it got worse … most of it was in March".
Consistent with what the complainant told police when she was interviewed, her evidence in the trial was that during the 2011/2012 school holidays she persuaded her father to allow her to obtain a prescription for the contraceptive pill on the pretence of it assisting in the regulation of her menses. She said the real reason was she feared she could become pregnant. The prescription was issued on 19 January 2012. It was tendered by the Crown without objection. The appellant's written submissions at [34] accept that the complainant commenced taking the contraceptive pill on or about that date. According to the complainant's evidence, the first occasion of penile intercourse occurred no earlier than 31 December 2011. It follows that she was exposed to the risk of pregnancy for a period of weeks before 19 January 2012. To the extent that the analysis undertaken by Adams J proceeds on the assumption that the possibility of pregnancy was raised in the complainant's evidence because of the alleged frequency of intercourse before she took her own contraceptive measures, I respectfully disagree.
The complainant told the police in the fifth interview, on 17 October 2012, that it was after her 15th birthday in October 2011 but before 19 January 2012 (when she started taking the pill) that she experienced the heavy episode of nocturnal bleeding which, months later, she considered an unusual menstrual bleed because it was dark and heavy and accompanied by a discharge of "lumpy, like, black stuff" which she scooped into a tissue and disposed of in the bathroom (the relevant parts of that interview are extracted in the judgment of Adams J at [28]). It is also clear from the complainant's answer to questions 28 and 74 in that interview, and her evidence in cross-examination (extracted in the judgment of Adams J at [29]), that she attended that interview because her mother had encouraged her to tell police about the handwritten note of her body measurements that her mother had found and about the episode of heavy bleeding, the complainant having apparently told her mother about it (although, according to the complainant, not her specific concerns about it possibly being a miscarriage) when that topic was the subject of discussion in a personal development class at school.
I agree with Adams J that it is not to the point that the fifth interview was played to the jury at the request of the accused. Neither is it to the point that defence counsel asked for it to be tendered, it would appear, in some way as laying a foundation, or providing the context, within which to mount a challenge to the complainant's credit by inviting her to confirm that she had told her mother what her mother reported to Senior Constable Jelsma. (Constable Jelsma's evidence is extracted in the judgment of Adams J at [27].)
There is, of course, no necessary connection between the complainant's concerns that the unusual episode of heavy bleeding and discharge "may have been something" and what Constable Jelsma recorded of the conversation she had with the complainant's mother. The note makes no reference to the complainant possibly suffering a miscarriage or the episode of heavy bleeding at all. What the note records is that the complainant's mother was told by her daughter that she had in fact been pregnant to the appellant at a time when the complainant's mother was pregnant with her son (between October 2011 and the Japan trip in April 2012); and that the appellant had performed an abortion and disposed of the aborted foetus.
In cross-examination the complainant's denials that she had told her mother that she was pregnant during her mother's pregnancy were categorical. The complainant was also categorical that she had not told her mother the appellant performed an abortion, or that he had performed an abortion knowing that she was pregnant to him. While it might not have been defence counsel's intention to elide the complainant having told her mother she had disposed of the "lumpy black stuff" she scooped from the sheets in the episode of nocturnal bleeding by wrapping it in tissue (something which counsel appeared to accept occurred) with the proposition, he put to her, that she told her mother that she disposed of an aborted foetus by this means, on any fair reading of the cross-examination extracted below, that is what occurred. Q: Well, did you tell your mother that you had been pregnant at the same time as she had been pregnant? A: No. Q: Did you tell your mother that [the appellant] was aware of the pregnancy? A: Look, having conversations with my mum about this stuff - I didn't because my mum - I hold her in very high regard and I really didn't feel comfortable and I still don't feel comfortable telling her what has been going on. She still doesn't know my version of this, so I didn't speak to her about anything. Any time a conversation would come up about this, I would feel very uncomfortable and I wouldn't talk about it. Q: I just wish to check a very precise form of words. Did you tell your mother that [the appellant] became aware that you had been pregnant? A: I'm not quite sure. Q: All right. Did you tell your mother that he had deliberately aborted the foetus? A: I'm sorry, I don't know where you're getting this from, but that's not accurate. Q: Do you deny that? Do you deny you said that to your mother? A: I don't know where you're getting these conversations from. Look, I don't know what was said at the time. I was extremely confused. I was very, very traumatised, and I still am. Q: I just want to check then, did you tell your mother [the appellant] aborted your foetus? A: No, I didn't tell her that. Q: Because that certainly did not happen, did it? A: Sir, I don't think you're in the position to say that. Q: [The appellant] did not - A: You weren't there. Q: Did [the appellant] - just when you're ready. Are you okay? A: Yes, I'm fine. Q: I want to put this question to you: did [the appellant] do anything to terminate a pregnancy? A: No. Q: Did you tell your mother that you wrapped the foetus in paper towels and a plastic bag and placed it in the bin? A: Yes. Q: But that didn't happen either, did it? A: Sir, as I said in the interviews, I put it in the toilet and it was in a plastic bag. Q: The interview actually doesn't say anything at all about a plastic bag, I want you to accept. What - A: Yes, but it does say that I put it in the toilet and I used tissues, which I meant toilet paper.
The question for this Court is not what the jury might have made of Constable Jelsma's evidence in their assessment of the credit of the complainant and her mother (the only basis upon which the police officer's evidence was admitted and the basis on which questioning of the complainant and her mother concerning it proceeded), nor whether Dr Lyneham's served report, which canvassed the likelihood of an abortion being performed, was relevant to that question. Neither is it the occasion to consider whether Constable Jelsma's evidence may have been admitted as first hand hearsay. At trial, defence counsel accepted that the question whether the complainant told her mother that the appellant performed an abortion knowing that she was pregnant to him (a proposition she explicitly denied), and/or whether she told her mother that she disposed of an aborted foetus in the toilet (a proposition with which she did not in fact agree or should not be taken to have agreed since, in my assessment, the cross-examiner and the witness were clearly at cross purposes) were relevant only to the complainant's credibility (and that of her mother), counsel having expressly disavowed any reliance on what was attributed to the complainant by her mother in what Constable Jelsma recorded the mother reported to the officer for a hearsay purpose. Despite a preliminary submission by defence counsel that the jury could reason to the conclusion that the complainant had in fact told her mother that she disposed an aborted foetus (that is, that she told her mother she had been pregnant), and that he was entitled, in those circumstances, to call evidence form Dr Lyneham as to the implausibility, from a clinician's perspective, of an abortion being performed in the circumstances detailed in Constable Jelsma's note, counsel did not ultimately seek to elicit that part of Dr Lyneham's report. His application was expressly limited to adducing that part of Dr Lyneham's report concerning the episode of nocturnal bleeding the complainant described in her fifth interview, and the improbability of that being the product of a spontaneous miscarriage. It is not for this Court to revisit the possible relevance of evidence that trial counsel did not seek to elicit, or to reconfigure the basis upon which other parts of Dr Lyneham's evidence might have been admitted were they pressed.
Unlike the broader approach to the question raised by the sole ground of appeal taken by Adams J in response to the wide ranging submissions advanced by the appellant's senior counsel on the appeal, in my view whether the trial judge was in error in rejecting Dr Lyneham's evidence concerning the issue of a miscarriage needs to be considered independently of the hearsay report in the evidence of Constable Jelsma that the complainant had been pregnant and had an abortion, and independently of whether the evidence might have been left to the jury as first hand hearsay, that is, that despite the complainant's denials, the complainant actually said what was attributed to her.
The question for this Court is what the jury were entitled to infer, or might have inferred, from the complainant's account to police about the bleeding episode and her evidence about that episode under cross-examination. Despite the confluence of the "miscarriage scenario" and the "abortion scenario" in the way the cross-examiner posed his questions in cross-examination of the complainant, on the voir dire into the admissibility of Dr Lyneham's evidence at the end of the Crown case, it was only Dr Lyneham's opinion as to the likely provenance of the bleeding episode that counsel sought to adduce. It is the discrete question whether the trial judge was in error in rejecting that evidence as being irrelevant to any fact in issue in the proceedings that is raised on the appeal. The focus on that question will inform whether Dr Lyneham's evidence as to the likely provenance of the uterine bleed as an episode of menstrual bleeding could rationally effect, either directly or indirectly, the probability of the existence of a fact in issue in the proceedings.
I agree with Hoeben CJ at CL that the complainant's evidence concerning the bleeding episode, taken at its highest, reflected nothing more than a concern that before she started taking the contraceptive pill she might have become pregnant to the appellant and might have miscarried. The appellant's submission on the appeal that the complainant's belief that she might have been pregnant at that time led to a "real chance" that she was in fact pregnant, or that the jury might have reasoned to that conclusion, and, that being the case, that Dr Lyneham's evidence rebutting a miscarriage as a likely explanation for the heavy bleeding was properly admissible was not open. Neither was it the way either the Crown or the accused addressed that aspect of the complainant's evidence in final addresses. More significantly, the submission that the bleeding led to a "real chance" of pregnancy ignored the complainant's evidence that the first occasion when she was exposed to the theoretical risk of conception was in the two or three weeks before she commenced to use contraception. On a proper analysis of all the evidence at trial, the complainant's evidence concerning the episode of heavy bleeding and her retrospective concern about it did not, either directly or by inference, raise in any rational sense the issue as to whether she was in fact pregnant at that time. Neither did the evidence provide any support for an inference that she was or might have been or that there was "a real chance" that she was pregnant.
On the appeal, the appellant further submitted that if it were open to the jury to reason to the conclusion that the bleeding incident supported the complainant's concern that she might have been pregnant (as I understand the submission, so as to support her credit, her credibility being a fact in issue in the trial, since the Crown case was dependent on the jury accepting her evidence beyond reasonable doubt) then Dr Lyneham's evidence should have been admitted on that basis alone. In my view, Dr Lyneham's opinion that it was "unlikely and substantially so" that the complainant had spontaneously miscarried was incapable of rebutting the complainant's concern that she might have been pregnant (and miscarried) since her concern about a possible pregnancy did not depend upon the likelihood that she was in fact pregnant but upon the fact that the appellant had intercourse with her.
That being so, the remaining question is the capacity of Dr Lyneham's evidence to rationally affect, either directly or indirectly, the complainant's credit in some other way. In order to address that question, consideration needs to be given to the way in which the complainant was cross-examined.
Save for one question directed to whether the complainant had told her mother that she thought she had miscarried (which she said she had not), defence counsel limited his questions concerning the issue of miscarriage (cf abortion) to having the complainant confirm that her retrospective concern about the bleeding episode was triggered by the birth of her infant brother and a personal development class at school. Counsel did not challenge the genuineness of her account to police that she believed she might have been (or was concerned she might have been) pregnant at the time of the episode of heaving bleeding. Neither did he put to her, as he might have, that, given her evidence as to when the heavy bleeding occurred (that is, after sexual intercourse started in late December 2011 and before she took the contraceptive pill in January 2012), it was not even remotely possible that she might have been pregnant and shed foetal tissue. Save for putting to the complainant that the appellant had never had sexual intercourse with her, counsel did not directly challenge the genuineness of her belief about the possibility of being pregnant, or the genuineness of her worry or concern when she reflected back on the bleeding episode many months later. Neither did counsel suggest to her that she had utilised the fact of a heavy nocturnal bleed to falsely implicate the appellant in order to add gravitas to her false complaint. Were the cross-examination to have extended that distance, the admission of Dr Lyneham's evidence under s 108C of the Evidence Act as relevant to her credibility might have succeeded subject to leave under s 108C(1)(c). However, that was not the approach taken by cross-examining counsel at trial.
On the approach taken by defence counsel at trial (as to which there is no complaint) the appellant has failed to demonstrate error in the trial judge's ruling that Dr Lyneham's evidence was irrelevant and inadmissible.

AK v R

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (10 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (2)