AZARIAN -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 249 (13 November 2007)

AZARIAN -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 249 (13 November 2007) - WASCA 2007 case summary — Zoe

[11]

2 The appellant and the female complainant were students at a University in Kalgoorlie. On the night of 4 April 2003, the complainant went to the University social club and later to a hotel. The appellant went separately to the social club and to the hotel. At the hotel the appellant bought the complainant an alcoholic drink which was the only alcohol that she consumed that night. At about midnight the appellant offered the complainant a lift back to her residential college where she lived as a student. When in the appellant's vehicle, the complainant and appellant decided to go for a drive around Kalgoorlie. The appellant drove to Hammond Park where he parked the motor vehicle. They talked and then the complainant agreed with the appellant's suggestion that they move into the back seat. They kissed. The complainant's bra was removed. The complainant gave evidence she resisted this happening. Her bra was put back on and the complainant said to the appellant that she wanted to go home. They stopped at a service station on the way home and the appellant bought cigarettes. The appellant then suggested that they go to the house where he lived. The complainant agreed. They went to the lounge room of the house and according to the complainant's evidence they then sat outside for a short time and talked. They returned to the house. The appellant explained that another student and his girlfriend were sleeping in a nearby bedroom and the complainant agreed with the appellant to go to his bedroom where they would make less noise. In the bedroom the complainant sat on the appellant's bed. The appellant kissed her. The complainant said she kissed him back. The complainant gave evidence that the appellant then pushed her onto the bed. The complainant said she told him 'this is not right'. She gave evidence that the appellant's mobile phone rang and he sat up on the bed and had a conversation. The complainant said she remained on the bed. When the phone conversation ended the complainant said that the appellant then tried to take off her top and she resisted and said 'No. Enough. Don't do this'. The complainant then said she 'blacked out' meaning, she explained, that she had taken her mind 'to a happy place'; that when she came out of the 'blackout' she remembered the appellant had then taken her jeans off and his jeans off and that the appellant then briefly penetrated the complainant with his penis, this being the subject of the first charge.

[87]

Insofar as this ground asserts that the verdict was unsafe and unsatisfactory, the appellant is relying on s 30(3)(a) of the Criminal Appeals Act 2004. This section, or its equivalent in other States, has been discussed and analysed on many occasions by the High Court. Some of the more important discussions may be found in Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521, Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454, M v The Queen [1994] HCA 63; (1994) 181 CLR 487, MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606, Raspor v The Queen [1958] HCA 30; (1958) 99 CLR 346, Weiss v The Queen [2005] HCA 81; (2005) 80 ALJR 444 and Darkan v The Queen [2006] HCA 34; (2006) 80 ALJR 1250.

From these cases, and other cases to which they refer, a number of propositions emerge:

(a) The words of the section should be used and not the many 'judicial expositions' about what the words mean. Weiss (supra) [9] and [33]. Thus, a ground relying on s 30(3)(a) should complain that the verdict of guilty, having regard to the evidence is unreasonable or cannot be supported, rather than using phrases such as 'unsafe and unsatisfactory', 'unjust or unsafe', or 'dangerous or unsafe': see M v The Queen at 492, MFA v The Queen at [25] and [58], or 'dangerous' or 'unsatisfactory': Chamberlain (No 2) at 618.

(b) The Court of Appeal may interfere with a verdict under s 30(3)(a) even though there has been no misdirection, erroneous reception or rejection of evidence, no complaint as to the course of the trial and there is some evidence on which a reasonable jury might convict: Chamberlain (No 2) at 531; Morris at 473. If the issue is that there was no evidence, then that will raise an allegation of an error of law: see Raspor (supra) at 350; M v The Queen at 492; Morris at 473.

(c) The function of the Court of Appeal in determining whether a verdict of guilty is unreasonable or cannot be supported having regard to the evidence is different from that of a trial Judge considering whether, as a matter of law, there is evidence on which the accused could be convicted: MFA v The Queen [26].

(d) When considering an appeal under s 30(3)(a), the Appeal Court is obliged to review the whole record of the trial and to make its own independent assessment of the evidence: M v The Queen at 492, Weiss [41] and Darkan [84]. However, in doing so it must make due allowance for the 'natural limitations' that exist in the case of an appellate court proceeding on the record: Weiss at [41]; Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [23], Darkan [84]. These 'natural limitations' include the fact that:

[96]

All right. You said you kissed then you got up and switched the lights off. How did matters develop from there?---We kissed and I did, I asked her if I could undo her bra again, I did that, and basically she - I helped her take her shirt off, take her top off, afterwards, and as I'm helping her up and we're kissing and we're touching, I took my shoes off and I think I undid my jeans as well.

Is there any light inside the room? Are you able to see - - -?---Yeah, I mean, it's not like bright like this but obviously you see.

What state did you get down to in your state of undress?---Well, I took everything off. I had my undies on at one stage but, yeah.

What about [the complainant]? What did she get down to, clothing wise?---She had nothing on but her undies at the end, I mean, not even, I mean she took even her socks off.

What then was happening between you and her if anything?---We just kissing and she's on my side and she's got her head on my shoulder, just kissing and touching, and she's got one leg on my side like this, she's basically - I don't know how to explain that, to make a picture what I'm talking about - - -

Well, what was the next phase? What happened?---Then it's like it's getting really hot, you know, it's - we both are very aroused, like, we just like - I think basically you get to that level, like, you know, and I got up to put a condom on, and I know I had some in my desk and I took one out, I put it on and she said, 'What are you doing?' and I said, 'Yeah, I'm putting a condom on.'

It might be obvious but where is she, on the bed, off the bed; where - - -?---Yeah, she was on the bed.

Are you standing up, you're sitting down - - -?---Yeah, I was standing up.

You have told us you put the condom on?---Yes.

Do you still have any of your underclothes on at that stage?---I didn't, obviously I had to take it off to put the - pull it down to put the condom on, but I went back to bed and she said she's not ready, I mean, she asked, 'What are you doing?' I said yeah, I'm putting a condom on, and she said no, she's not ready for that, tonight's the first night.

So you're now back in bed?---Yeah.

What position is she on the bed?---When I get back to bed she was still in that position as I left her but now she says she doesn't want to do it and I'm just kissing her and she's, no, she's touching my shoulder, you know, and I said all right, you know, and she - I told her to basically roll over and I - because I - I just wanted to hold onto her and I just cuddled her and she rolled over towards the - facing the window, basically.

So where were you after she rolled over to face the window?---I was always sleeping behind, obviously.

So what happened then?---She had her arm on my head.

Yes?---Actually, she had her head on my arm and - - -

Were you touching her - - -?---Yeah.

Were you touching her in any way?---My hand is on her breast and - - -

She's got her head on her arm - - -?---Yeah.

Your arm, I think you said?---Yeah.

She said she doesn't want to, so what actually happens at that stage? Well, how long did you stay in the position you were in?---Probably about 15 minutes and we just kind of talking as well and she says, 'Yeah, I think I better go home,' you know.

Were you saying anything in relation to whether she should stay or go home?---Yeah, I thought I told her to stay, you know, and she said no, she has to go and it's getting a bit late and she has to wake up early tomorrow, and I said 'Yeah, you can sleep here, no problems,' you know, and she said no, she wants to go, and I said okay.

[99]

What happened then?---The phone rang, his mobile phone rang, and he answered it. I don't know who was on the other side.

Did he have to get up off the bed to answer the phone or not?---I think he just had to sit up straight and sit on the bed. I can't actually remember if he actually got off the bed or not. I just remember him answering the phone.

And after that?---He hung up and he got back to his usual - started kissing me again.

When he was on the phone, where were you?---I was on the bed. I was at that stage facing the window and sort of holding myself in like the foetal position because I was in a predicament that I didn't know how to really get out of, yeah.

Is facing the widow facing away from where he was on the telephone?---Facing away from him, yeah. I had my back towards him.

He returned, and what happened after that?---He just kept on saying, 'Relax.' He tried to take off my top and at that stage I was basically holding my top down. I was saying, 'No. Enough. Don't do this' - and he was basically trying to pull my top off, which he managed to do. I may - I can't remember exactly when I blacked out. I did black out. I basically just took myself out of that situation, took my mind somewhere where I could feel, like, in a happy place.

At what point did you say you blacked out?---I can't remember when I blacked out. I blacked out more than once in the whole night.

Can you describe what you mean by 'blacking out'?---It's like basically your body is there but your mind is not there; you have taken your mind to a happy place, a place where you feel comfortable and safe. For me it was, because I was in this predicament, in this situation that I didn't know how I was going to get out of, it was the only way for me to escape and feel that I was safe even though I wasn't.

You have said that he was trying to take your top off. Correct?---Yes.

When did you next come to, if I can use that expression, out of your blackout? What do you remember happening next?---I can remember him with - he had my jeans off. Somewhere along in that time he got my jeans off and he had taken his jeans off as well and he had actually penetrated - I can't remember if my underwear was taken off with my jeans or if he had taken my jeans and my underwear off separately.

Do you actually recall him taking your jeans or underwear off or not?---No, I don't.

And so your underwear and your jeans were off?---Yes.

And what happened?---And he penetrated, his penis went into my - the vaginal area.

[127]

72 First, there was the evidence of the complainant's girlfriend, who understood from speaking to the complainant that the acts complained of occurred in the car and not at the house. Although the girlfriend expressed some uncertainty at first, she ended up testifying that that was her understanding from what she was told by the complainant. That was evidence impacting negatively on the complainant's credibility. Secondly, there was the evidence of the complainant to the effect that when she asked the appellant to stop what he was doing at Hammond Park, he complied with her request. That evidence does not directly prove one way or the other whether penetration occurred, but it is circumstantial evidence suggesting that the appellant was not inclined to persist in the face of a refusal. Thirdly, the complainant told her girlfriend that she did not know whether the appellant ejaculated or wore a condom because she blacked out. That was not the complainant's evidence in court. In court she described the activities of the appellant when he said he was getting a condom. She gave evidence that he 'penetrated without the condom' and that 'he penetrated the second time with the condom'. In evidence-in-chief she said she did not look at his penis but the second penetration felt 'smooth' and she said 'I'd guess that's probably the condom'. Her explanation in court was, therefore, that she did not know whether he wore a condom because she did not look (although it felt as though he was wearing one) but her account to her friend was that she did not know whether he wore one because she blacked out. This impacts negatively on the complainant's credibility. Fourthly, there was the unusual evidence that the complainant took herself off to a 'happy place', which she described as blacking out (more than once). Fifthly, if penetration occurred the first time, then when the appellant left the bed to put on a condom and therefore acted as though he intended to penetrate her again, it is surprising that the complainant did not leave the bed or try to call out or leave the room. There was evidence that the door was open. The complainant believed there were other people in the house. Sixthly, she did not complain to anyone at the college that she had been sexually assaulted or to her friend when she telephoned.

[171]

You said you kissed then you got up and switched the lights off. How did matters develop from there?---We kissed and I did, I asked her if I could undo her bra again, I did that, and basically she - I helped her take her shirt off, take her top off, afterwards, and as I'm helping her up and we're kissing and we're touching, I took my shoes off and I think I undid my jeans as well.

...

What state did you get down to in your state of undress?---Well, I took everything off. I had my undies on at one stage but, yeah.

What about [the complainant]? What did she get down to, clothing wise?---She had nothing on but her undies at the end, I mean, not even, I mean she took even her socks off.

What then was happening between you and her if anything?---We just kissing and she's on my side and she's got her head on my shoulder, just kissing and touching, and she's got one leg on my side like this, she's basically - I don't know how to explain that, to make a picture what I'm talking about - - -

Well, what was the next phase? What happened?---Then it's like it's getting really hot, you know, it's - we both are very aroused, like, we just like - I think basically you get to that level, like, you know, and I got up to put a condom on, and I know I had some in my desk and I took one out, I put it on and she said, 'What are you doing?' and I said, 'Yeah, I'm putting a condom on.'

It might be obvious but where is she, on the bed, off the bed; where - - -?---Yeah, she was on the bed.

Are you standing up, you're sitting down - - -?---Yeah, I was standing up.

You have told us you put the condom on?---Yes.

Do you still have any of your underclothes on at that stage?---I didn't, obviously I had to take it off to put the - pull it down to put the condom on, but I went back to bed and she said she's not ready, I mean, she asked, 'What are you doing?' I said yeah, I'm putting a condom on, and she said no, she's not ready for that, tonight's the first night.

...

When I get back to bed she was still in that same position as I left her but now she says she doesn't want to do it and I'm just kissing her and she's, no, she's touching my shoulder, you know, and I said all right, you know, and she - I told her to basically roll over and I - because I - I just wanted to hold onto her and I just cuddled her and she rolled over towards the - facing the window, basically.

[210]

Ordinarily the form of question asked by H would be regarded as leading and as suggesting the answer 'Yes' to some part. But the context in which the question was put was one where the prosecutrix had made what H said he regarded (and which it was open to the learned trial Judge and the jury to have regarded) as a rather strange request for a girl to make to a man. It was a request which might be regarded as one more likely to be made to her own female flatmates than to a male. It obviously suggested to H that something was wrong and her reaction - namely, that she burst out crying - would have confirmed that impression. That impression would have been strengthened when, in response to his next and much more direct question, she 'just went pretty quiet'. It was only after H had repeated the question that she made the statement that she had been raped.

The learned trial Judge saw and heard the prosecutrix. He was in a position to determine whether she was a suggestible witness or in some way under H's influence or domination. His Honour saw and heard H and he was in a position to determine whether it was likely that the question had been put by H in such a context or in such a tone of voice as to preclude the answer from being considered to be her spontaneous complaint and so consistent with her sworn evidence. The questions were natural questions to ask in the circumstances (cf R v Heaton (1906) 6 SR (NSW) 694), and they would not appear to have been of an intimidating character (as, perhaps, were those in R v Adams and Ross, supra).

It was open to the learned trial Judge, on the evidence and on his impressions of the prosecutrix and H and on his views of the prosecutrix's then condition (having regard to the evidence concerning the prosecutrix given by Mrs P and her son, Miss D and H) to have taken the view that the prosecutrix was recovering from shock and struggling to bring herself to tell her story, and that H's questions did no more than dissolve the barrier which had hitherto prevented her from telling her story.

His Honour was also entitled to take into account the age of the prosecutrix - she was no mere child - and he was in a position to assess her emotional, intellectual and social maturity.

In the circumstances of the present case, it was open to the learned trial Judge to have formed the view that the questions put to the prosecutrix by H, had merely accelerated the making of the complaint by the prosecutrix and that what she said to H was the product of her own mind and not the acceptance of a suggestion implanted in her mind by H. She was clearly still in a highly emotional state: 'moaning', 'stammering', 'upset', 'dazed', and 'distressed' are but some of the descriptions given to her condition by Mr and Mrs P and Miss D, who saw the prosecutrix immediately after the events and up to shortly before the complaint. Only some half hour elapsed between the happening of the events and the making of the alleged complaint.

On the whole of the evidence it was open to the learned trial Judge to hold that the leading nature of H's questions did not, in these circumstances, render the complaint inadmissible by taking from it the quality of spontaneity which is looked for in such complaints to buttress the prosecutrix's evidence.

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AZARIAN -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 249 (13 November 2007)

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Cases Cited (30)