Allan v R - [2017] NSWCCA 6 - NSWCCA 2016 case summary — Zoe

NSWNSWCCA

Allan v R

[2017] NSWCCA 6

Court of Criminal Appeal (NSW)|2016-09-26|Before: Gleeson JA, Harrison J, Campbell J

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At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2016-09-26

Before

Gleeson JA, Harrison J, Campbell J

Catchwords

[1994] HCA 63 Mackenzie v The Queen (1996) 190 CLR 348
[1996] HCA 35 R v Clout (1995) 41 NSWLR 312 R v Lowe (1997) 98 A Crim R 300 R v Markuleski (2001) 52 NSWLR 82
[2001] NSWCCA 290 R v Whalen (2003) 56 NSWLR 454
[2003] NSWCCA 59 SKA v The Queen (2011) 243 CLR 400

Source

Original judgment source is linked above.

Catchwords

[1994] HCA 63 Mackenzie v The Queen (1996) 190 CLR 348[1996] HCA 35 R v Clout (1995) 41 NSWLR 312 R v Lowe (1997) 98 A Crim R 300 R v Markuleski (2001) 52 NSWLR 82[2001] NSWCCA 290 R v Whalen (2003) 56 NSWLR 454[2003] NSWCCA 59 SKA v The Queen (2011) 243 CLR 400

Judgment (16 paragraphs)

[1]

Judgment

GLEESON JA: I agree with Harrison J. Examining the evidence as a whole it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of the offences charged in counts 2 and 3.
HARRISON J: The applicant, Stephen John Allan, stood trial at the District Court at Sydney from 16 June 2014 to 26 June 2014 on an indictment containing three counts: 1. Count 1: sexual intercourse without consent knowing that the complainant was not consenting (s 61I of the Crimes Act 1900); 2. Count 2: attempted sexual intercourse without consent knowing that the complainant was not consenting (ss 61I and 61P of the Crimes Act); and 3. Count 3: armed with a weapon, namely a knife, with intent to commit and indictable offence, namely assault (s 114(1)(a) of the Crimes Act).

[2]

[4]

Complainant's evidence

On the afternoon of 16 November 2012, the complainant went to her friend Dennis' house in Chippendale. She stopped off at a "hock shop" and bought a second hand iPhone for her daughter, before walking towards her home in Bourke Street, Surry Hills.
At about 9.00pm the complainant was walking north on Wentworth Avenue towards Oxford Street. The applicant approached her and asked if she was working. He asked her if she wanted to go with him and said he did not live far away. The applicant asked how much she charged and the complainant said that it was $50 for oral sex and $100 for vaginal sex. The applicant said he had $100. The complainant turned around and followed the applicant towards Commonwealth Street.
The complainant and the applicant walked for around five to ten minutes. They then entered a building on Commonwealth Street, which the applicant said was his house. The complainant asked "Do you want to get in the lift?" and the applicant said, "No, we'll take the stairs". They walked up about five flights of stairs and stopped at the top. The applicant turned the handle of a door and tried to open it. The complainant thought that they would have to wait for somebody to come and bring a key to let the applicant in. The complainant, who was sitting on her jacket at the top of the stairs, called her friend, Mr Cowan, and told him that she was on a job near the police station.
After waiting for five to ten minutes, the complainant suggested she and the applicant could have sex in the stairwell. The applicant agreed and pulled out $50. The complainant said, "It's $100". The applicant said, "Just give me oral" and gave the complainant the money. After the applicant pulled down his pants, the complainant took a condom out of her bag, unwrapped it and put it on the applicant's penis and began giving him fellatio. The complainant was sitting on the step and the applicant was standing in front of her.
After a few minutes the applicant said, "Look, you want to have sex?" The complainant said, "Yes, then give me the other $50 and that's okay". The applicant said, "No, I don't think so" and pushed her back onto the step, pinned her onto the ground, pulled down her pants and put his penis in her vagina. The complainant tried to push the applicant off and said, "Listen, give me the other money". The applicant said "No, no, no" and the complainant said "Well, no, it doesn't happen like that. I'll just finish sucking you off and that's it. "The complainant pushed and kicked at the applicant to get him off her saying, "Get off me, get the fuck off me".
The complainant said that prior to sexual intercourse, the applicant had taken off the condom and thrown it behind him. She told police that she later picked up the condom and put it in a bag.
The applicant had sexual intercourse with the complainant for a few minutes. The complainant said she did not consent to the applicant putting his penis in her vagina.
While the applicant was having vaginal intercourse with the complainant, she said she felt the applicant feeling around her anus, trying to stick his fingers in her. She said that the applicant's fingers were "scratching around my anus and probing and grabbing at me". While he was doing this she was trying to kick him, saying "Leave me alone, get off … I can have my mate here … get off me". The complainant did not consent to the applicant putting his fingers in her anus.
The applicant continued having vaginal sex with her until he ejaculated. The complainant said she was "pretty sure" that he ejaculated. He then pulled up his pants and started going down the stairs. The complainant said, "Stop … that's just wrong. That's not what we agreed on. Give me the rest of the money". The applicant continued down the stairs. The complainant used some tissues from her handbag to clean her vagina and between and down her legs. She did not recall what she did with the tissues. She said she may have discarded them in the stairwell or kept them in her handbag or pocket, in which case she would have given them to someone at the hospital.
The complainant dressed herself, grabbed her handbag and began chasing the applicant down the stairs. She said the $50 was missing from her pocket, as was the iPhone she had just purchased for her daughter. The complainant called Mr Cowan using her own phone and said, "The fella's raped me. He … wouldn't give me the rest of the money. My phone's gone and … the money he did give me … he's taken that as well". The complainant told Mr Cowan that she was on Commonwealth Avenue and requested he catch a taxi to meet her. The complainant said she did not call the police herself because "that's [Mr Cowan's] job … That's why I ring him and tell him what happens".
The complainant followed the applicant from the building. She said, "Listen, stop … Give me my money and my phone back and I won't follow you". The applicant told her to stop following him. When the applicant got into the back seat of a taxi, the complainant opened the front door and said to the driver, "Listen. The man's just raped me, he's robbed me. Don't take him anywhere, please. The police are on their way". The driver told the applicant to get out of the taxi and he did. The applicant was angry and said, "I've told you once, I've told you twice nicely, now fuck off and stop following me". The complainant said to the applicant, "Give me my money back and my phone and I won't keep following you … my mate's on his way. You'll be a dead man when he gets here. Like, just give me my shit back and you can go."
The complainant's evidence was that the applicant took out a knife from his back pocket and waved it in front of her face while he was telling her to "fuck off". It was a folding knife, she said, about 15-20 centimetres long with the blade extended. She said the actual blade was "a bit more than 5 centimetres." The complainant gave evidence that the knife had a key ring and some keys hanging off it. She said she was "pretty sure" of what the knife looked like.
The applicant had jogged about 30-40 metres past the corner of Wentworth Avenue when the police stopped nearby. The complainant spoke to the police and said, "Look, the man has just raped me and he has robbed me" and pointed to the applicant. The complainant recalled telling police about a paper bag in which she had deposited tissues with the applicant's semen. The complainant had also placed some tissues in her underwear. The complainant could not recall what happened to the bag of tissues, which the applicant said she used to wipe off the applicant's semen.
An ambulance drove the complainant to the hospital where a doctor examined her.
The complainant made a statement to police and also drew a picture of the applicant's knife.

[5]

Applicant's evidence

The applicant said that he did not have sexual intercourse with the complainant without her consent, did not attempt to put his fingers in her anus without her consent and did not take out a knife or threaten her with it. He said he did not steal her money or her iPhone.
According to the applicant, on the evening of 16 November 2012, he met the complainant at the bus stop at Taylor Square. The complainant appeared to be a "street walker". He asked if she would have sex with him and she said she could but it would cost him $50. He said she did not say it would cost $100 and he denied telling her that he had $100. They did not discuss the type of sex. The applicant said that the complainant was drinking from a bottle of alcohol that the applicant thought was wine, but that she said was vodka and juice. The complainant did not seem intoxicated and the applicant had a sip of the alcohol.
The complainant did not have anywhere private for them to go so they walked down a laneway. The applicant found an office building with an open door. He did not suggest that he lived in the building. They went up to the top of the stairwell and the applicant gave the complainant $50. She said that she only wanted to give him "oral" and he agreed and gave her the money. The applicant sat on the landing and pulled down his pants. The complainant gave him oral sex for about ten minutes, without using a condom, and then started mumbling and rambling to herself and getting loud. The applicant pulled up her top and looked at her breasts whilst she was giving him oral sex. He did not ejaculate. The applicant assumed that she had a psychiatric problem or that she was on drugs and was concerned that she would attract attention. The applicant was not enjoying himself so he pulled up his pants and went down the stairs. He did not take the complainant's money or phone.
In cross-examination, the applicant denied that at some point during oral sex he said that he wanted sex and that the complainant told him to give her the other $50. He denied that he said "No, I don't think so" and denied that he took the condom off and raped her. He denied that he tried to force his fingers into her anus.
The complainant followed him down the stairs. When they got outside, she asked him for another $50 and he said, "No. I don't want to give you another $50 and I don't have another $50". The applicant walked away and the complainant kept following him demanding money. She threatened that she would call her friend if the applicant did not give her the money to which the applicant said, "Well, go ahead". After the complainant was on the phone, the applicant warned her not to pursue him any further and said that he was carrying a Swiss army knife. He said the knife was in his front right pants pocket, but he did not take it out. There were no keys attached to the knife. He denied that he pulled the knife on the complainant.
The applicant walked away from the complainant but she continued following him. On Oxford Street, he was able to hail a cab. He got into the front seat of the cab but the complainant caught up and tried to get into the back seat. The applicant told the cab driver that "I've got to leave because of this woman who's trying to get in the back of the cab". The applicant got out of the cab and the complainant continued to chase him down Oxford Street.
The police arrived at Whitlam Square and spoke to the applicant. He told the police that he had sex with the complainant, who was a prostitute, and that she was chasing him and that she was a "nut".

[6]

Evidence of attending police officers

At about 10.45pm, police attended the scene. The complainant and the applicant appeared to be having an argument on the footpath. Senior Constable Fallow spoke to the applicant, who told him the complainant was following and harassing him, that he had tried to get into a taxi and he was not sure why she was following him. The applicant told Senior Constable Fallow that he did not know the complainant.
Constables Hawa and Toby spoke to the complainant who repeatedly said, "He raped me. Stop him". She told them that she was a prostitute and that the applicant had been one of her clients. The complainant told police that she had agreed to oral sex with the applicant for $50, but he had forced himself on her and pulled a knife on her at the intersection. The complainant pulled out tissues and a used condom from her bag and said that they would have the applicant's DNA on them. Constable Toby did not take the items from the complainant and told the detectives about the items when they arrived.
Senior Constable Fallow arrested and cautioned the applicant. Constable Hawa searched the applicant and located a Swiss army knife in his front pants pocket. After the search, the applicant told Senior Constable Fallow that he had met the complainant that night at Taylor Square. The applicant said "We had sex", that he had paid $50, that the sex was consensual and that it had happened "about 20 minutes ago" in a stairwell in Taylor Square. The applicant said he had paid the correct amount and that when he left, the complainant asked for more money, being $50. The applicant said to Senior Constable Fallow, "I only had oral sex, then I wanted to leave. She chased me down the street, demanding more money". Constable Hawa arranged for an ambulance to attend the scene and the complainant was taken to hospital.
The complainant gave the bag containing the tissues to Senior Constable Mclntyre who attempted to give the bag to Detective Murphy. He told her to return the bag to the complainant so that she could take it with her to the hospital, to give to the doctor to be included with the Sexual Assault Investigation Kit ("SAIK"). Senior Constable Mclntyre spoke to Mr Cowan who was with the complainant.
Detective Murphy was on duty with Detective Farquharson, the OIC of the investigation. They approached the complainant who was wiping her legs around her inner thighs with tissues and who kept saying, "I want to get it out of me". Detective Murphy described the complainant as "distressed and anxious" and said she appeared to be moderately intoxicated. Detective Farquharson said the complainant was "trembling and shaking to an extent. She was crying. She was a bit incomprehensible when speaking at times because she was so worked up". Detective Murphy recalled seeing tissues on the top of the complainant's bag which she was using to wipe herself but denied taking anything from the complainant or instructing her to do anything in relation to the tissues.
Detectives Murphy and Farquharson approached the applicant who was standing with Constable Hawa and another officer. Constable Hawa gave Detective Farquharson a red Swiss army knife. The applicant was arrested and cautioned by Detective Murphy. They took the applicant to Surry Hills Police Station where he agreed to participate in an interview. Photographs of the Swiss army knife were taken and admitted at trial. Mr Cowan was approached by the police but refused to make a statement.
At about 2.30am on 17 November 2012, Detective Murphy and Constable Connery attended Royal Prince Alfred Hospital to see the complainant. In cross-examination, Constable Connery accepted the complainant appeared to be "well affected by intoxicating liquor. Her speech was slurred and [Constable Connery] could smell intoxicating liquor on her breath".
At the hospital, Dr Lee gave Detective Murphy two sealed paper bags. Detective Murphy did not see the items but the doctor told her what the bags contained. Detective Murphy gave the bags to Constable Connery who placed them in the boot of their car. Constable Connery returned to Surry Hills Police Station at about 4.15am, placed the bags obtained from the hospital into police evidence bags and booked them up as exhibits. One exhibit bag was labelled X0000797433. On the outside of the bag, Constable Connery wrote "Incident: sexual assault, location … Commonwealth Street, Surry Hills" and signed the bag. Someone else had written the words "tissues used to wipe thigh and line … and condom" on the bag. Constable Connery labelled another exhibit bag, X0000797433, with the word "underpants".

[7]

Dr Lee

Dr Lee examined the complainant on 17 November 2012 between 2. 05 am and 3.45am. He described the complainant as distressed and tearful. There were linear red marks on her outer mid-left thigh, with some scabbing which he said could have been produced at the time of the assault or earlier. The complainant complained of a burning or stinging sensation in the anal area. Dr Lee examined the complainant's genitals and found that the external genitalia were normal to visual examination. Dr Lee did a speculum examination of the vagina, and found fresh blood inside the top of the vagina, but no wounds. He said that the bleeding was most likely the onset of menstrual bleeding. In cross-examination he accepted that if a woman were lying on her back it was possible that menstrual blood could flow towards the perianal or anal region. He did a visual examination of the anus, which was normal. He did not record any scratches, redness or trauma around the anus. In his expert certificate, Dr Lee relevantly concluded that "the absence of visible injury to the anus and external female genitalia does not confirm or refute the history of vaginal and anal assault".
Dr Lee took a number of forensic samples from the complainant, including a vulval swab, high and low vaginal swabs, swabs from inside the anal canal and from outside the anus and a swab of the complainant's thigh. He placed the samples in tubes, which he labelled. In cross-examination, he acknowledged that his labelling was ambiguous. It seems that in the language of the SAIK, he conducted an "anal" swab rather than a "rectal" swab as he did not use an anoscope. An anal swab involves inserting a moistened swab approximately 1-2 cm into the anus, whereas a rectal swab involves the insertion of an anoscope. However, he said he had "no doubt" where each of the swabs came from, albeit "the labelling clearly could have been more clearly stated".
Dr Lee also collected the complainant's underpants and some tissues that had been lining her underpants. He recorded that the tissues "also had been used by [the complainant] to wipe her thighs". He did not recall how the complainant gave him the tissues and could only say that the normal procedure was for Dr Lee to hold a sample bag open and ask the patient to place the item into the bag so as to avoid any risk of contamination. All the samples were sealed inside a SAIK. Detective Farquharson collected the SAIK from the hospital on 22 November 2012 and took it to Surry Hills Police Station, where it was booked in as an exhibit. The SAIK was then taken to the Forensic and Analytical Science Services ("FASS").

[8]

Ms Trabuio

Ms Sandra Trabuio is a senior forensic biologist employed by FASS. She prepared an expert report in connection with the trial.
The swab from the applicant's right hand had a mixture of DNA from two individuals. The major component had the same profile as the applicant and the minor component had the same profile as the complainant.
In cross-examination, Ms Trabuio said that if a person touched a woman's vagina or anus and if the person's hand was swabbed almost immediately, she would expect that the woman's DNA would be the major contributor. She said that it would depend on the timeframe between the touching and the swabbing and whether the person had wiped his or her hands or touched other objects.
The SAIK was analysed. DNA recovered from the internal "rectal" swab tested positive for blood. The DNA recovered was a mixture that appeared to originate from two individuals. The complainant could not be excluded as a contributor. The applicant had the same profile as the second contributor. The second profile would be expected to occur in 1 in 2.2 million individuals in the general population. Traces of a third individual were recovered but at levels too low to determine a profile. Ms Trabuio said that in order to take an internal anal swab, it has to pass through the anus and that it is possible that biological material on the surface of the anus or around the anus might be caught by that swab, but that would depend on the measures taken by the doctor.
In cross-examination, Ms Trabuio explained the distinction between primary and secondary transfer and stated that secondary transfer "can occur" and that it can happen from objects.
The applicant's semen was not found in the complainant's vagina, on her vulva or on her thighs. Ms Trabuio's evidence was that if there was full internal ejaculation during vaginal/penile intercourse and the vagina was swabbed within six hours, one would expect to find semen.
Ms Trabuio prepared another report regarding the brown paper bag which contained tissues and a condom. DNA from the tissues matched the complainant's DNA profile. Traces of another individual's DNA were also found, but at levels too low for a profile to be determined. All 12 tissues were tested for semen and tested negative. No semen was detected on the outside or inside surface of the condom.

[10]

Ground 1 - Alleged mishandling and contamination of evidence

The applicant asserts that the guilty verdict in respect of Count 2 is unreasonable or cannot be supported by the evidence because of the mishandling and contamination of the DNA and blood evidence.
The principles relevant to a ground of appeal that a verdict is unreasonable or cannot be supported by the evidence, such as that upon which the applicant relies in grounds 1, 2, 3 and 5, are uncontroversial. In SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, French CJ, Gummow and Kiefel JJ said at [11]-[14]: "The task of the Court of Criminal Appeal [11] It is agreed between the parties that the relevant function to be performed by the Court of Criminal Appeal in determining an appeal, such as that of the applicant, is as stated in M v The Queen [(1994) 181 CLR 487 at 493] by Mason CJ, Deane, Dawson and Toohey JJ: 'Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.' [12] This test has been restated to reflect the terms of s 6(1) of the Criminal Appeal Act. In MFA v The Queen [(2002) 213 CLR 606 at 623-624 [58]] McHugh, Gummow and Kirby JJ stated that the reference to 'unsafe or unsatisfactory' in M is to be taken as 'equivalent to the statutory formula referring to the impugned verdict as "unreasonable" or such as "cannot be supported, having regard to the evidence".' [13] The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M went on to say: 'In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. ' … [14] In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA, the Court is to make 'an independent assessment of the evidence, both as to its sufficiency and its quality' [Morris v The Queen (1987) 163 CLR 454 at 473 per Deane, Toohey and Gaudron JJ]. In M, Mason CJ, Deane, Dawson and Toohey JJ stated [at 492-493]: 'In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand'."
Meagher JA recently explained in Elwood v R [2016] NSWCCA 18 at [21] that when such a ground is relied upon: "The question for this Court is whether it was open to the jury to be satisfied of the applicant's guilt beyond reasonable doubt; in other words, 'whether the jury must, as distinct from might, have entertained a doubt about the applicant's guilt': Libke v The Queen [2007] HCA 30; 230 CLR 559 at [113] (Hayne J, Gleeson CJ and Heydon J relevantly agreeing), citing M v The Queen [1994] HCA 63; 181 CLR 487 at 492-493."
In this case, in relation to Ground 1, the applicant submits that the evidence was consistent with secondary transference of his DNA to the complainant's anal region by her own hands, which had come into contact with the applicant through the complainant giving the applicant fellatio in the stairwell and wiping her legs and genitals with tissues and placing tissues in her underpants after physical contact with him. At trial, counsel for the applicant also emphasised that whilst there were traces of the complainant's blood on the "rectal" swab, there was no evidence of any blood found on the applicant's hand.
The applicant further contends that Dr Lee failed to take precautions to ensure that blood and DNA were not pushed through the interior of the anal canal from the external anal region when taking swabs from the complainant.
The Crown contends that the absence of blood on the applicant's hands and the possibility of secondary transference do not mean that the jury must have entertained a doubt about the applicant's guilt.
As was stated in SKA v The Queen, the Court must make its own independent assessment of the evidence and determine whether the impugned verdict is "unreasonable" or such as "cannot be supported, having regard to the evidence". The relevant question is whether the jury must, as distinct from might, have entertained a doubt about the applicant's guilt.
Although there may be an inference that could be drawn from the forensic evidence consistent with the applicant's contention, there is not enough evidence in support of it such that the jury must have entertained a doubt about the applicant's guilt.
The applicant points to the lack of blood and relatively small amount of DNA found on his hands, as well as Ms Trabuio's concession that DNA transference could have taken place to support his version of events. However, as the Crown argues, these factors are by no means conclusive and in fact were adequately explained and accounted for in the Crown case.
The applicant was extensively cross-examined regarding the time frame between the alleged assault and the swabbing of his hands and the use of his hands during that time. The applicant said that it "was a very long wait" at the police station and he agreed that his hands had been swabbed at 5.10am, a period of seven hours and forty minutes since he had left the building at Commonwealth Street. He agreed he had used his hands to do up his pants after the oral sex, to open the door to get out of the building and to open the door of the taxi to get in and to get out. He agreed that he had been handed three pieces of paper at the police station and that he had signed two of them. He agreed that in the interview with police, he had touched his clothes, his face and his elbow with his hands.
The possibility of secondary DNA transference was put to the jury at the trial and it was open to the jury to reject that possibility. There was no evidence at trial to suggest that Dr Lee's swabbing of the complainant's anal canal was conducted improperly, and it was not suggested to him that it was. As stated above, Dr Lee accepted that it was possible that if a woman were lying on her back, menstrual blood could flow towards the perianal or anal region. However, this only raises the possibility that blood could have entered the complainant's anal region in a way that was not caused by the applicant, and nothing more.
Taking into account the entirety of the evidence regarding this ground of appeal, including the factors raised by the applicant, it seems to me that the verdict was not unreasonable in the circumstances.
This ground of appeal fails.

[11]

Ground 2 - Assessment of scientific evidence

The applicant contends that the medical records relating to the swabs that were taken from the complainant were inaccurate, ambiguous and were labelled incorrectly. These alleged inaccuracies, which were examined on the voir dire, were not put before the jury. The applicant further complains that a mandatory identification warning pursuant to s 116 of the Evidence Act 1995 was not given by the judge when it should have been.
The medical examiner, Dr Lee, gave evidence that he had no clear recollection of taking or labelling the anal region swabs. He relied on his contemporaneous records when giving evidence. The applicant asserts that there were discrepancies between what he had recorded on Form 14A of the SAIK documentation and the labelling of swabs shown in the photographic record. Dr Lee had ticked boxes labelled "perianal" and "anal" on Form 14A. However only swabs labelled "rectal" and "anal" were photographed.
This, the applicant asserts, misled the jury by giving a result for an internal region when the record showed it to be a result for a swab taken from a region external to the anus and to which transference of DNA by the complainant's own hand was very likely.
With respect to the ambiguities in the forensic evidence, the Crown highlighted Dr Lee's evidence in cross-examination during which he clarified the inconsistencies between the labelling of the swabs and the boxes that he ticked on the SAIK.
Dr Lee stated: "The one that was labelled anal was the one that I ticked perianal for and the one that … I labelled as rectal is the one I ticked anal for. So one is external, one is internal. I have no doubt at all that that was how the swabs came out."
Accordingly, the Crown holds that the internal swab (which was labelled rectal but was in fact an anal swab in the language of the SAIK) was the one that contained the complainant's blood and the applicant's DNA. This was presented to the jury. Therefore, whilst the labelling itself could have been clearer, this was drawn to the attention of the jury and explained in cross-examination.
In this case, there was no requirement for the Court to place the proceedings on the voir dire before the jury. Having regard to the whole of the evidence, it appears that the ambiguities in the forensic evidence were sufficiently ventilated before the jury at trial, particularly in the evidence given by Dr Lee and there is no indication that the jury must have entertained a reasonable doubt about the applicant's guilt in this respect.
With respect to the mandatory identification warning in s 116, the Crown argues that the forensic evidence does not fall under the definition of "identification evidence" as outlined in the Act.
Section 116 of the Evidence Act states: "116 Directions to jury (1) If identification evidence has been admitted, the judge is to inform the jury: (a) that there is a special need for caution before accepting identification evidence, and (b) of the reasons for that need for caution, both generally and in the circumstances of the case. (2) It is not necessary that a particular form of words be used in so informing the jury."
The dictionary of the Evidence Act states: "identification evidence" means evidence that is: (a) an assertion by a person to the effect that a defendant was, or resembles (visually, aurally or otherwise) a person who was, present at or near a place where: (i) the offence for which the defendant is being prosecuted was committed, or (ii) an act connected to that offence was done, at or about the time at which the offence was committed or the act was done, being an assertion that is based wholly or partly on what the person making the assertion saw, heard or otherwise perceived at that place and time, or (b) a report (whether oral or in writing) of such an assertion."
The Crown asserts that having regard to this definition, there was no identification evidence involved in the applicant's trial and the trial judge was under no obligation to comply with s 116 of the Act.
The applicant, on the other hand, contends that the swabs taken from the applicant and the complainant were objects that were used to identify him. Such objects therefore count as identification evidence. In support of this proposition, the applicant referred to R v Clout (1995) 41 NSWLR 312 and R v Lowe (1997) 98 A Crim R 300. In Clout, Kirby ACJ said that: "The fact that the identifying link between the accused and the crime is not an aspect of human physiognomy can scarcely be determinative. In several cases, objects (such as clothing) have been vital to establishing identification of the accused as the offender … Similarly warnings had been required in the identification of objects as those used in the commission of an offence …"
This decision was affirmed in Lowe, with Hunt CJ at CL remarking: "I see no distinction in principle between visual, voice and object identification. I am satisfied that a warning as to the danger of convicting should be given where the identification relates to an inanimate object, such as the clothing worn by the offender or a weapon used by him in the commission of the crime, and where that evidence represents a significant part of the proof of the guilt of the accused. Just as with voice identification, object identification is not a distinct category of evidence."
Likewise in R v Whalen (2003) 56 NSWLR 454; [2003] NSWCCA 59, the Court stated at [46]-[47]: "The circumstance that it concerned the identity of an inanimate object, rather than a person, does not mean that it cannot be identification evidence: see R v. Clout (1995) 41 NSWLR 312; Crupi (1995) 86 A Crim R 299; Theos (1996) 89 A Crim R 486. Furthermore, these cases indicate that the circumstance that the evidence seeks to establish identity by virtue of similarity of features, rather than outright identification, is also not determinative of the question. However, in my opinion, these cases also indicate that in order for the evidence in question to be identification evidence, reliance on identification or similarity of features must be a 'significant part' of what the Crown relies on in order to establish the identity of the person or object in question. In this case, in my opinion there was no question of direct evidence of identification, and the similarity of features was not a significant part of what was relied on. What was relied on, as indicated above, was the general consistency of the appearance of the vehicles observed with Whalen's vehicle, coupled with the telephone intercepts, the scarcity of other vehicles, the remoteness of the area, and the visits to Site 1."
Evidently, the identification of an object can fall under the heading of "identification evidence" as defined in the Evidence Act. However, looking at the language of the Act, the forensic evidence in this case does not qualify. This is because identification evidence involves an assertion that the defendant was present at or near a place where the offence was committed, being an assertion that is based wholly or partly on what the person making the assertion saw, heard or otherwise perceived at that place and time. The evidence of Dr Lee and the other medical professionals was not an assertion that they made about whether the applicant was present at the time of the offence, nor was their written record based on what they perceived at the time of the offence. Rather, they were simply determining whether the applicant's DNA was found on the complainant. Moreover, the references in the case law seem to concern similarities between descriptions of two objects, such as the similarity between a car seen by a witness and an accused person's car. In this case, the evidence concerns a different process, namely forensically matching the applicant's DNA with the DNA found on the complainant. The forensic evidence in this case was not "identification evidence" in the sense of the definition in the Evidence Act and the trial judge was not required to give a warning about it.
This ground of appeal fails.

[12]

Ground 3 - Inconsistent verdicts

The applicant contends that the verdict of not guilty in respect of Count 1 (penile/vaginal sexual intercourse without consent) is inconsistent with the verdict of guilty in respect of Count 2 (attempted digital/anal intercourse without consent). He maintains that this is attributable to the errors in the forensic evidence and the complainant's account of what occurred. In particular, the applicant argues that the complainant's evidence that he attempted to force his fingers into her anus whilst having penile/vaginal intercourse is inconsistent with the facts, given that no semen was detected in the FASS reports. Also, the complainant gave evidence that she physically resisted the applicant by thrashing around and pushing him off, including pushing at his face, whereas no injuries to his face were photographed or reported by the police. Finally, the applicant emphasises that there was no blood found on his hands, nor was there any forensic evidence of trauma, scratching or other injuries to the complainant's anus.
The test for whether a conviction should be overturned on the basis of alleged inconsistencies between the verdicts is one of logic and reasonableness. The applicant must satisfy the court that the two verdicts cannot stand together, in the sense that no reasonable jury that applied its mind properly to the facts in the case could have arrived at that conclusion. If there is a proper way by which the appellate court may reconcile the verdicts allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted: Mackenzie v The Queen (1996) 190 CLR 348 at 366; [1996] HCA 35. It is not to be assumed too readily that a difference between verdicts returned inevitably demonstrates a want of credibility in the complainant or central witness: R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 at [219]. In Wingrove-Pryce v R [2014] NSWCCA 290 Hoeben CJ at CL observed at [42]: "As the authorities cited make clear, the fact that an acquittal has been entered does not necessarily mean that the jury disbelieved the complainant. It may simply mean that the jury was not satisfied beyond reasonable doubt as to some element of the offence or, as was pointed out in MFA, the jury may be looking for some extrinsic element of corroboration."
The authorities make it clear that the Court should not too readily conclude that in such circumstances the complainant's evidence should be disbelieved or that no guilty verdict based on his or her evidence can stand. Rather, the Court is to look at all the evidence and determine whether in light of the verdicts and the facts and circumstances of the case it is necessary to intervene to prevent a possible injustice from occurring.
Looking at the evidence in this case, it is clear that there was a logical and reasonable basis for the jury to have given different verdicts in relation to Counts 1 and 2.
First, there was different corroborative evidence relating to the two counts. In particular, the applicant's DNA was found on an anal swab taken from the complainant. This supports Count 2. However, none of the applicant's DNA or semen was detected in the swabs taken from the complainant's vagina, which did not support Count 1. Thus, it may be that the jury was looking for some extrinsic element of corroboration beyond the complainant's testimony, and was able to find it in relation to Count 2 but not Count 1. This is a perfectly logical reason for their finding.
Secondly, the differing verdicts may be accounted for having regard to the element of consent, in that the jury may have believed that the penile/vaginal intercourse was consented to in the course of the complainant providing services as a prostitute, whereas the attempted digital/anal intercourse was not. It should be noted that the complainant testified that both acts were not consented to. However, whereas her evidence in relation to Count 1 was complicated by her agreement to engage in sexual intercourse for a specified sum, her evidence in relation to Count 2 was emphatic: "Q. Did you want him to do that? A. No, no. Q. What did you do when he did that? A. ... I didn't want that hurting like that. Q. Sorry? A. I didn't want that at all and he couldn't have paid me enough money to be sticking his fingers where he was trying to anyway."
The Crown asserts that the evidence and the explanations derived from it demonstrate that the verdict was logical and reasonable.
As previously stated, the applicant points to the lack of blood detected on his hands, the absence of scratch marks or wounds on his head and the absence of evidence of trauma around the complainant's anus to demonstrate that the verdict was unreasonable. The question for this Court is whether in light of the verdict, the inconsistencies in the complainant's account and the forensic evidence raised by the applicant show that there was possible injustice caused to the applicant.
It is clear that the jury must have had some doubts about the credibility of the complainant in relation to some of the counts. Working backwards, the jury were not satisfied beyond reasonable doubt either that the applicant had penile/vaginal intercourse with the complainant without her consent or that the complainant did not consent to it. However, as outlined earlier, the fact that a witness might be disbelieved in regard to one count or one aspect of his or her evidence does not make the whole of that evidence incapable of supporting a verdict on any count even though it may undermine the witness' credibility more generally, which should be taken into consideration. Judge Frearson specifically addressed this in his summing up: "It is true that you need to give separate consideration to each count and it is also true that if you actually had a doubt about the complainant's credibility on one count; if you decide to acquit on one count for some reason and that involved not accepting the complainant's credibility, believability on that count, when you consider the other count should factor that in. It may or may not make any difference, it depends. You need to be alive to the issue that, even though you are required to give separate consideration to each count, when it comes to that credibility matter, that goes across into all the counts, all right? You might think that makes sense."
The jury would have been alive to the issue of credibility and presumably would have taken it into account in their deliberation across all counts.
The evidence that the applicant points to as demonstrating that the verdict in relation to Count 2 was unsafe is equivocal. For example, as pointed out earlier, any blood on the applicant's hands could have been removed at some time before his hands were tested. The absence of injuries to the applicant's face may simply be due to the fact that he was successful in defending himself from the complainant's assaults. And finally, as Dr Lee stated, "the absence of visible injury to the anus and external female genitalia does not confirm or refute the history of vaginal and anal assault". Thus, the evidentiary matters raised by the applicant are not conclusive. Looking at the whole of the evidence, a reasonable jury would be entitled to convict, based on the complainant's evidence as well as the forensic evidence.
This ground of appeal fails.

[13]

Ground 4 - Evidence of False Accusations

The fourth ground of appeal is that the jury were never able to make a realistic or informed assessment of the credibility of the complainant because the trial judge did not allow the applicant to cross-examine her in relation to her previous false accusations or allegations of sexual intercourse without consent.
Section 293 of the Criminal Procedure Act provides as follows: "293 Admissibility of evidence relating to sexual experience (1) This section applies to proceedings in respect of a prescribed sexual offence. (2) Evidence relating to the sexual reputation of the complainant is inadmissible. (3) Evidence that discloses or implies: (a) that the complainant has or may have had sexual experience or a lack of sexual experience, or (b) has or may have taken part or not taken part in any sexual activity, is inadmissible. (4) Subsection (3) does not apply: (a) if the evidence: (i) is of the complainant's sexual experience or lack of sexual experience, or of sexual activity or lack of sexual activity taken part in by the complainant, at or about the time of the commission of the alleged prescribed sexual offence, and (ii) is of events that are alleged to form part of a connected set of circumstances in which the alleged prescribed sexual offence was committed, (b) if the evidence relates to a relationship that was existing or recent at the time of the commission of the alleged prescribed sexual offence, being a relationship between the accused person and the complainant, (c) if: (i) the accused person is alleged to have had sexual intercourse (as defined in section 61H (1) of the Crimes Act 1900) with the complainant, and the accused person does not concede the sexual intercourse so alleged, and (ii) the evidence is relevant to whether the presence of semen, pregnancy, disease or injury is attributable to the sexual intercourse alleged to have been had by the accused person, (d) if the evidence is relevant to: (i) whether at the time of the commission of the alleged prescribed sexual offence there was present in the complainant a disease that, at any relevant time, was absent in the accused person, or (ii) whether at any relevant time there was absent in the complainant a disease that, at the time of the commission of the alleged prescribed sexual offence, was present in the accused person, (e) if the evidence is relevant to whether the allegation that the prescribed sexual offence was committed by the accused person was first made following a realisation or discovery of the presence of pregnancy or disease in the complainant (being a realisation or discovery that took place after the commission of the alleged prescribed sexual offence), (f) if the evidence has been given by the complainant in cross-examination by or on behalf of the accused person, being evidence given in answer to a question that may, pursuant to subsection (6), be asked, and if the probative value of the evidence outweighs any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission. (5) A witness must not be asked: (a) to give evidence that is inadmissible under subsection (2) or (3), or (b) by or on behalf of the accused person, to give evidence that is or may be admissible under subsection (4) unless the court has previously decided that the evidence would, if given, be admissible. (6) If the court is satisfied: (a) that it has been disclosed or implied in the case for the prosecution against the accused person that the complainant has or may have, during a specified period or without reference to any period: (i) had sexual experience, or a lack of sexual experience, of a general or specified nature, or (ii) had taken part in, or not taken part in, sexual activity of a general or specified nature, and (b) the accused person might be unfairly prejudiced if the complainant could not be cross-examined by or on behalf of the accused person in relation to the disclosure or implication, the complainant may be so cross-examined, but only in relation to the experience or activity of the nature (if any) so specified during the period (if any) so specified. (7) On the trial of a person, any question as to the admissibility of evidence under subsection (2) or (3) or the right to cross-examine under subsection (6) is to be decided by the court in the absence of the jury. (8) If the court decides that evidence is admissible under subsection (4), the court must, before the evidence is given, record or cause to be recorded in writing the nature and scope of the evidence that is so admissible and the reasons for that decision."
The applicant relied on subs (6) in his application to be permitted to cross-examine the complainant about her previous false allegations of sexual intercourse without consent. The disclosure in the Crown case that was said to have triggered the operation of subs (6) was that the complainant was a prostitute.
In his reasoning, the trial judge said: "The threshold question is whether s 293(6) applies at all. It is disclosed in the prosecution case that the complainant was a prostitute at the relevant time. The section, however, requires that I be satisfied that the accused might be unfairly prejudiced if cross-examination is precluded. Logically the expression 'unfair prejudice' must relate to the disclosure in the Crown case and it must relate to the disclosure in circumstances if it is left unaddressed by cross-examination. That's the only logical interpretation of the subsection that I can see. The disclosure in the Crown case was just to the mere fact that the complainant was a prostitute, which is common ground. I don't consider that disclosure gives rise to any unfair prejudice at all."
The provision clearly comprehends the existence of a connection between an accused person's inability to cross-examine a complainant about the disclosure on the Crown case and the prejudice that may be occasioned to an accused person in such circumstances. In other words, for present purposes, that would require a connection between the Crown's disclosure that the complainant was a prostitute and any prejudice to the applicant if he were not permitted to cross-examine her about that fact. In the present case, the putative prejudice to the applicant is to be found in his inability to cross-examine the complainant about the fact that she allegedly made false complaints about sexual assault, rather than an inability to cross-examine her about the fact that she is a prostitute.
In this case, the trial judge noted that there were four incidents detailed in COPS entries that the applicant wanted to rely upon in cross-examination of the complainant. All were said to affect her credibility in that they implied that she was someone who had previously made false allegations of sexual intercourse without consent.
The first incident occurred in February 2007. The complainant was said to have complained of a sexual assault and then declined to go to hospital or the police.
The second incident occurred in March 2007 where it was said the complainant was heavily affected by drugs and that she complained of sexual assault. She called triple-0, but refused to go to hospital. No crime scene could be identified by the police.
The third incident occurred on 3 June 2001. The complainant was discovered by her husband with a naked man on top of her. She said she was at a friend's house and she had fallen asleep. She complained of non-consensual activity. She was not a prostitute at the time. The judge noted that it was possible to infer that that was a false claim by her.
The fourth incident occurred on 17 January 2007. The complainant was discovered in a home in circumstances suggesting that she may have been stealing things. She complained of a sexual assault. She was working as a prostitute at the time. The judge noted there was an inference available that she was trying to extricate herself from an allegation of theft. She also declined to be examined medically.
The nature of this evidence is arguably important in the assessment of whether the accused would be unfairly prejudiced if cross-examination were not permitted. It is material that could, if allowed, go directly to the credibility of the complainant in a case in which her current complaints are denied.
In each instance, the trial judge concluded that the evidence was not capable of substantially affecting the complainant's credibility. I disagree. These incidents, whether considered individually or taken together, are capable of demonstrating that the complainant may have lied about being sexually assaulted in order to gain some advantage or to escape or divert responsibility for her actions. This goes directly to her credibility. In the context of this case, where the applicant alleges that she was falsifying the allegations of sexual assault to procure some advantage (money) from him, this evidence would be quite significant. It follows in my view that the applicant is likely to be unfairly prejudiced if the complainant could not be cross-examined on such matters.
However, the precondition in s 293(6)(b) of satisfaction as to the unfair prejudice to the accused requires that the prejudice must be from inability to cross-examine "in relation to the disclosure or implication". Here, the making of allegedly false complaints of previous sexual assault does not arise in relation to the disclosure that the complainant is or was a prostitute or even by implication from it. The evidence sought to be raised in cross-examination does not therefore fall within the relevant words in s 293(6)(b). In this case, the proposed cross-examination would not strictly be about the complainant's work as a prostitute. On the contrary, the cross-examination could only relevantly go to her supposed tendency to make false allegations of sexual assault.
Finally, the Crown argued that s 293(6) authorises the cross-examination of the complainant "only in relation to the experience or activity of the nature (if any) so specified during the period (if any) so specified". The Crown contends, and I accept, that the only disclosure in this matter is that the complainant was working as a prostitute at the time of the alleged offences committed by the applicant. Thus, even assuming that the applicant could have been "unfairly prejudiced" if he could not cross-examine the complainant in relation to that disclosure, the applicant would not have been authorised by s 296(6) to cross-examine her about matters which, as Frearson DCJ found, "are far removed from the mere disclosure that she was a prostitute at the relevant time".
This ground of appeal fails.

[14]

Ground 5 - Alleged inconsistent evidence with respect to Count 3

The applicant contends that the guilty verdict with respect to Count 3 was unreasonable or cannot be supported having regard to the evidence being the inconsistencies in the complainant's evidence regarding the knife allegedly used by the applicant. In the complainant's drawing of the knife, there are keys attached to it, whereas the knife that was seized from the applicant when he was arrested did not have any keys attached. This, he contends, is "conclusive proof" that the complainant had never seen the knife. The applicant's evidence was that he had not produced the knife, but rather that he had told the complainant he had a knife and not to pursue him any further.
In her evidence in chief, the complainant gave the following evidence concerning the knife: TRIAL ADVOCATE "Q. Had you seen that knife before? A. No. Q. Can you describe the knife? A. Probably about this long. With, like - it must fold out of the bottom part or whatever, and it had a key ring with some keys attached to the bottom of it. All in all, about that long, may, with the keys hanging. HIS HONOUR Q. But how long is that? A. It's - I don't know, maybe 15, 20 centimetres. Q. What did you say about the bottom part? A. Like, it folder - the knife folded up from the bottom part, like a folding knife. Q. All right, and did I hear you say something about keys? A. Yeah, sorry. There was keys hanging off the bottom of it, like a key ring with some keys hanging off the bottom. " TRIAL ADVOCATE Q. When it was being waved at you, was there a blade? A. Yeah. Q. When you give the estimate of 15 or 20 centimetres, is that the knife with the blade open? A. Yeah, that's with the blade open. You know, like, the actual blade part was maybe only - what's that, maybe 5 centimetres when you unfold it."
When asked if she was sure about the knife being connected to a set of keys, the complainant said, "I'm pretty sure. I mean, it was - he was waving it around in front of me, and, like, it was a bit sort of blurry because of the way he was waving it around and yelling and screaming at me, and I had to get away and, like, stope (sic) following him. Yeah. And once again, I wasn't paying too much detail to what the knife actually looked like, I just knew that there was a knife in front of me. It scared the living daylights out of me and I was threatened. Like I felt threatened so I didn't need to know."
Evidently, the complainant was in a state of fear when she allegedly saw the knife. This may have affected her perceptions. However, she did provide a description of the knife itself that was relatively consistent with the knife that was Exhibit B in the trial and the two photographs of the knife that were admitted as Exhibit H. These photographs show that it was a Swiss army knife that was around 9 centimetres when folded with a blade that was approximately 6 centimetres when unfolded. It should also be noted that the knife had a small ring at the bottom to which one could attach keys. The applicant later said that there was a set of keys in his pocket.
The Crown submitted that the applicant had not told police at the scene or in the interview subsequently that he had warned her he had a knife on him. Thus the Crown suggested that the applicant made the story up in order to explain why the complainant would have told the police that he had threatened her with a knife in circumstances where police found a Swiss army knife on him. This is a possibility. However, there are many reasons why an accused person may fail to mention something at the time of their arrest, or in an interview with police. This inference does not significantly refute the applicant's version given at trial.
Ultimately, the issue is whether on the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of this crime. The applicant's point about the lack of a set of keys may have been persuasive, but I am not satisfied that it was "conclusive", particularly in circumstances where the complainant would have been fearful and where she provided an accurate description of the knife itself. I also note that the jury has had the significant advantage of having seen and heard the witnesses. Although this Court must make its own assessment of the evidence, the jury's advantage in this case is capable of resolving any doubt that might be experienced by this court: M v The Queen. Taking this into account and looking at the limited facts in relation to this count, I am not persuaded that the jury must, as opposed to might, have entertained a doubt about the applicant's guilt. The jury would have been entitled to believe the complainant's version of events based on her evidence and the evidence overall in the trial. I am not satisfied that the guilty verdict with respect to Count 3 was unreasonable or cannot be supported having regard to the evidence.
This ground of appeal fails.

[15]

Conclusions and orders

The applicant has not succeeded on any of his grounds of appeal. In the circumstances, I propose the following orders: 1. Grant leave to appeal. 2. Appeal dismissed.
CAMPBELL J: I agree with Harrison J.
I only wish to add that I initially had some reservations about whether the conviction for Count 2 was relevantly inconsistent with the acquittal on Count 1, given that the complainant's account was that the attempted digital anal penetration occurred during what she said was non-consensual penile/vaginal intercourse. Having considered Harrison J's reasons in this regard, I am satisfied that while a jury left in doubt about Count 1 might also have had a doubt about Count 2, that consideration did not require the jury to be left in reasonable doubt about Count 2. As Harrison J has pointed out, the complainant's evidence about Count 2 was corroborated by the DNA evidence. Juries are invariably instructed that, where there is a conflict in the lay evidence, it is open to them to accept some, but not all of a witness's evidence. The jury, of course had the advantage of seeing and hearing all of the witnesses including the complainant and the applicant give evidence. That consideration in the context of Harrison J's reasons resolves any doubt I may have had otherwise.
I wish to add to Harrison J's reasons in relation to Ground 4 that decisions of this Court concerning the repealed provisions of s 409B Crimes Act 1900 demonstrate that evidence a complainant has lied, or fantasised, about previous sexual experiences was excluded by that section: M v R (1993) A Crim R 549 at 544 per Allen J (Gleeson CJ and Meagher JA agreeing); R v Bernthaller NSWCCA unreported 17th December 1993 per Badgery-Parker J. The present section and the repealed section are substantially identical. Proving that the complainant had lied when making previous allegations of sexual assault could have established "a lack of sexual experience" for the purpose of s 293(3)(a). For the reasons given by Harrison J, the exception created by s 293(6) does not apply in this case.

Allan v R

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