//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2004] WASCA 254
Court of Appeal (WA)
2004-11-10
Malcolm CJ
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : CARROLL -v- THE STATE OF WESTERN AUSTRALIA [2004] WASCA 254
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Criminal law and procedure - Sexual offences - Applicant acquitted of 11 offences but convicted of 16 offences on same complainant 4 days later - Whether verdicts inconsistent - Whether Longman direction required - Adequacy of summing up - Obligation of trial Judge to adequately direct jury on defence case
Allegretta v R [2003] WASCA 17
Basto v R [1954] HCA 78; (1954) 91 CLR 628
Checconi v R (1988) 34 A Crim R 160
Christophers v R [2000] WASCA 308; (2000) 23 WAR 106
Cleland v R [1982] HCA 67; (1982) 151 CLR 1
Cornelius & Briggs v R (1988) 34 A Crim R 49
Crisafio v R [2003] WASCA 104; (2003) 27 WAR 169. ,
Domican v R [1992] HCA 13; (1992) 173 CLR 555. ,
Garrett v R (1988) 50 SASR 392
Honeybone v R, unreported; SCt of WA; Library No 950224; 10 May 1995
Longman v R [1989] HCA 60; (1989) 168 CLR 79
Longman v R (1989) 169 CLR 79
M v R [1994] HCA 63; (1994) 181 CLR 487
MFA v R [2002] HCA 53; (2002) 213 CLR 606
R v BWT [2002] NSWCCA 60; (2002) 54 NSWLR 241
R v Kirkman (1987) 44 SASR 591
R v Schmahl [1965] VicRp 95; [1965] VR 745
R v Stone, unreported; UKCCA (Devlin J) 13 December 1954
R v Veverka [1978] 1 NSWLR 478
RBK v R [2004] WASCA 216
RPS v R [2000] HCA 3; (2000) 199 CLR 620
Stingel v R [1990] HCA 61; (1990) 171 CLR 312
Sullivan v R (1913) 15 WALR 23
Van Den Hoek v R [1986] HCA 76; (1986) 161 CLR 158
Van Leeuwen v R (1981) 36 ALR 591
Abrath v North Eastern Railway Co (1883) 11 QBD 440
Bromley v R [1986] HCA 49; (1986) 161 CLR 315
Connelly v Director of Public Prosecutions [1964] AC 1254
Ellis v R, unreported; CCA SCt of WA; Library No 970480; 26 September 1997
Herbert v R [2002] WASCA 362
McComish v R, unreported; CCA SCt of WA; Library No 980529; 16 September 1998
Nanette v R [1982] VicRp 8; [1982] VR 81
R v Manunta (1990) 54 SASR 17
Scott v R, unreported; CCA SCt of WA; Library No 990004; 15 January 1999
Spiteri v R [2001] WASCA 82
Zorad v R (1990) 19 NSWLR 91
1 MALCOLM CJ: In my opinion, while I would grant the application for leave to appeal, this appeal against conviction should be dismissed for the reasons to be published by Roberts-Smith J with which I am in agreement. I also agree with the comments by Murray J. In the end, there is an adequate explanation for any suggested inconsistency of verdicts.
2 MURRAY J: In this matter I have had the considerable advantage of reading in draft the judgment to be published by Roberts-Smith J. I respectfully agree with it and with his Honour's conclusion that the application for leave to appeal should be dismissed.
3 This jury had before it a case where the evidence actually fell into a small compass, although, of course, the events as they were alleged by the complainant to have occurred on 30 January and 3 February 2002 at Gooseberry Hill and Guildford respectively, generated a substantial number of counts in the indictment. The applicant's defence to the various charges was either that the conduct complained of did not occur or that, although it was accepted that what was complained of did occur, it did not occur without the complainant's consent. I put the matter in that way, although, of course, his Honour the trial Judge correctly directed the jury about the onus and standard of proof.
4 In addition, although it was not expressly relied upon, the evidence required his Honour to leave to the jury in respect of all counts, that although the jury may have been persuaded beyond reasonable doubt that what was charged in individual counts did occur and that it occurred without the complainant's consent freely and voluntarily given, nonetheless the jury could not convict unless persuaded beyond reasonable doubt that the applicant did not honestly believe, albeit mistakenly, on reasonable grounds, that the complainant was consenting to the acts in question: Criminal Code (WA), s 24. There can be no complaint by the applicant that the matter was left in that way. Indeed, had the trial Judge failed to do so there would no doubt be grounds to complain of a miscarriage of justice in that the applicant would have lost a reasonably open chance of acquittal.
5 To my mind, having read the evidence in its entirety, it may well have been the case that it was upon the question of s 24 of the Code that the different verdicts turned, bearing in mind, of course, that in respect of the question of inconsistency of verdicts, the principal argument presented for the applicant before us, the question is whether, having regard to the evidence in the case, the acquittals returned in respect of the counts concerned with the events of 30 January 2002 at Gooseberry Hill make it
impossible to sustain the convictions in respect of counts 11 and following on the indictment (excepting count 14) in respect of the events of 3 February 2002 at Guildford. In the circumstances of this case I agree that this Court will so conclude and will quash those convictions only where the circumstances establish that the integrity of the jury's verdicts of guilty is compromised, having regard to the acquittals.
6 I agree that that has not been demonstrated here. The different bodies of evidence in respect of the two occasions have been discussed in detail by Roberts-Smith J. His Honour has thoroughly reviewed the arguments of counsel before us. I need not repeat that exercise, but in my opinion it is important in considering ground 3, as it was particularised, to look at the evidence against the background of the fact that previously, before they separated, the complainant and the applicant had a long-standing de facto relationship which had produced three children.
7 It appears that their sexual relationship may have been at least vigorous and inventive, perhaps fairly described as being, on occasions, robust and rough. It seems to me that while it was entirely possible that the jury might have been persuaded beyond reasonable doubt that the events of 30 January 2002 represented non-consensual behaviour on the part of the complainant, of which the applicant was or ought to have been aware, they may also reasonably have had a doubt that, given their past relationship, the applicant may have misinterpreted what was intended by the complainant to convey non-consent and in the heat of the activity he may have honestly and reasonably thought that this was a vigorous sexual encounter of a kind in which they had previously engaged.
8 It is right to remind oneself that in relation to the incident on 3 February 2002, it must have been abundantly obvious to the jury that the case was one of oath against oath. What occurred was only peripherally illuminated by the evidence of the security officer, Mr Wight, and it was open to the jury to consider that the different evidence given by the complainant and Wight as to his involvement and what passed between them was not such as to damage her credibility substantially in relation to the truth and accuracy of her evidence as to what occurred between her and the applicant.
9 As to that, as Roberts-Smith J has explained, there were differences, particularly in the way in which the incident began and in the way in which it developed, between the evidence with respect to 3 February and that with respect to 30 January. To my mind, there were significant differences. They were capable of showing that the applicant commenced the second incident by angrily forcing the complainant out of her car and abducting her. There were aspects of the offences allegedly committed on the second occasion which were more punitive in character than those on the first occasion. I have in mind, particularly, the acts of urination which the jury could regard, on the complainant's evidence, as being designed to humiliate her and show contempt for her.
10 In short, it seems to me that while it is certainly the case that the complainant must have been accepted as an accurate witness of truth in relation to her description of the events on the second occasion, it is not necessarily the case that she could not reasonably be so regarded by the jury in light of the acquittals in relation to the first incident. Those acquittals are not necessarily explained by rejecting her testimony as a truthful and accurate account of what occurred on the first occasion. It may be that in relation to the second series of offences the jury were persuaded beyond reasonable doubt by the evidence that not only did the incidents occur and occur without her consent, but that the conduct of the applicant established beyond reasonable doubt that on this occasion he had no honest and reasonable but mistaken belief that she was consenting. I would not uphold ground 3.
11 In relation to the complaint that the convictions should be quashed because the trial Judge failed to give what counsel described as a general warning of the danger of conviction on the uncorroborated testimony of the complainant, I agree with Roberts-Smith J that the argument presented was unpersuasive. Of course, such an argument has to be presented against the background of the operation of the Evidence Act 1906 (WA), s 50, and its admonition that not only is a warning of the kind described by the section as a corroboration warning not required to be given, in any case it is not to be given unless the judge is or ought to be satisfied that such a warning is justified in the circumstances. For myself, I had difficulty in discerning from the argument what it was precisely that counsel submitted the judge should have said but did not, which had the effect that the convictions constituted a miscarriage of justice.
12 As Roberts-Smith J has noted, the argument did not precisely follow the grounds, which were firmly based on a particular view of the requirements of the law stemming from the decision of the High Court in Longman v R [1989] HCA 60; (1989) 168 CLR 79 and developed in a considerable number of cases both in the High Court and elsewhere since then. In this State, that line of authority culminates most recently in Crisafio v R [2003] WASCA 104; (2003) 27 WAR 169. However, the short answer to this argument, in my opinion, is that this case presented no feature of forensic disadvantage or
difficulty of which the jury would not have been abundantly aware and upon which, if they were to have a proper understanding of their process of decision-making, they required instruction by the trial Judge. In my opinion, also, there is no merit in these grounds.
13 As to the complaint that the trial Judge failed to adequately put the defence case, the grounds reveal that in support of this proposition it is said that the trial Judge failed to tell the jury which were the alleged offences which the applicant said did not in fact occur. It is said that he failed to remind the jury of the significance of the evidence of Ms Lee about her exchange with the complainant some 5 years earlier, which might suggest animosity towards the applicant and a plan to fabricate charges of "rape" when the complainant received injuries which might support such a complaint. Further, it was argued that the trial Judge failed to remind the jury of Mr Wight's evidence and its significance.
14 In fact, as appears from the judgment of Roberts-Smith J, where the relevant portions of the trial Judge's brief comments on the evidence are set out, the trial Judge did mention to the jury the evidence of Ms Lee and Mr Wight and the reliance placed upon it by the defence. It was pointed out that his Honour made some factual errors, as indeed he did, but they were not, in my opinion, other than errors of the most obvious kind and, in my opinion, there is no significant possibility that the jury may have been misled as to what the evidence was.
15 The most substantial criticism is that the trial Judge concluded his rather brief review of the defence case, in which he adverted merely to the arguments of counsel, by summarising the defence as being one in which it was asserted that what occurred on 30 January and 3 February 2002 was "consensual, part of an ongoing sexual relationship between the parties." As a very general observation that is accurate enough, but, of course, it does omit to note specifically the applicant's evidence that the conduct which was counts 12, 13 and 22 in the indictment, according to the evidence given by the applicant, did not occur at all. Count 22 was the second act of urinating on the complainant, whereas counts 12 and 13 were acts of pulling at the complainant's pubic hair and squeezing her breasts which marked, according to her evidence, the commencement of the attack upon her on 3 February.
16 However, the contest upon the evidence was clear and emphasis had been laid upon it, as I understand, by defence counsel in his address to the jury. The question, I think, is whether the omission specifically to mention those counts and the defence to them, whilst making the very
general observation about the nature of the defence case which, of course, also omitted any reference specifically to s 24 of the Code, was liable to mislead the jury in such a way as to deprive the accused of a chance of acquittal reasonably open to him. I think not. It seems to me that the jury could not have been misled into misunderstanding the nature of the defence case.
17 As to the omission of more extensive discussion of the defence case, I am reminded of the observations of the High Court in Domican v R [1992] HCA 13; (1992) 173 CLR 555 at 561 when, relying upon what was said in Basto v R [1954] HCA 78; (1954) 91 CLR 628 at 637, their Honours said:
"This Court has said that it 'is hardly necessary to say that as a reason for granting a new trial, after conviction in a criminal case, it is not enough that the presiding judge has not mentioned to the jury all the matters which were set up on behalf of the accused as affecting probabilities'. Whether the trial judge is bound to refer to an evidentiary matter or argument ultimately depends upon whether a reference to that matter or argument is necessary to ensure that the jurors have sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence."
18 In my view, the way in which the trial Judge dealt with the defence case, although not, with respect, a model of clarity and accuracy, was not productive of any miscarriage of justice.
19 As I understood it, of the remaining grounds, grounds 4 and 8 were abandoned at the outset of the applicant's argument and ground 11 was abandoned during the course of argument. In my view, those decisions were rightly made. None of those grounds has merit. I would dismiss the application for leave to appeal.
20 ROBERTS-SMITH J: Between 13 and 16 January 2004 the applicant stood trial before Williams DCJ and a jury in the District Court of Perth on an indictment containing 27 counts of sexual offences committed on the complainant. They fell into two groups, counts 1 to 10 being offences allegedly committed at Gooseberry Hill on 30 January 2002 ("the Gooseberry Hill counts") and counts 11 to 27 being 16 offences allegedly committed at Guildford on 3 February 2002 ("the Guildford counts").
21 The particular offences may briefly be listed as follows:
(1) unlawful and indecent assault (by touching her breast).
(2) unlawful and indecent assault (grabbing her underwear) and then doing bodily harm.
(3) sexual penetration without consent (cunnilingus).
(4) sexual penetration without consent (penetrating her mouth with his penis).
(5) sexual penetration without consent (vaginal penetration with his penis).
(6) sexual penetration without consent (penile penetration of vagina).
(7) sexual penetration without consent (penile penetration of vagina).
(8) sexual penetration without consent (penile penetration of vagina).
(9) sexual penetration without consent (penile penetration of anus).
(10) sexual penetration without consent (penetrating her mouth with his penis).
(11) unlawful and indecent assault (squeezing her breast).
(12) unlawful and indecent assault (grabbing and pulling her pubic hair).
(13) unlawful and indecent assault (squeezing her breasts).
(14) unlawful and indecent assault (kissing and sucking her breasts).
(15) sexual penetration without consent (penile penetration of vagina).
(16) sexual penetration without her consent (cunnilingus).
(17) sexual penetration without consent (penetrating her mouth with his penis).
(18) unlawful and indecent assault (urinating on her).
(19) sexual penetration without consent (penile penetration of vagina)
and that immediately before the commission of the offence, did an act, namely urinating on the complainant which was likely to seriously and substantially humiliate her.
(20) sexual penetration without consent (penile penetration of vagina) and that immediately before the commission of the offence he did an act, namely urinating on her which was likely to seriously and substantially humiliate her.
(21) sexual penetration without consent (penile penetration of anus) and that immediately before the commission of the offence, he did an act, namely urinating on her which was likely to seriously and substantially humiliate her.
(22) unlawful and indecent assault (urinating on her).
(23) sexual penetration without consent (penetrating her mouth with his penis) and that immediately before the commission of the offence he did an act, namely urinating on her which was likely to seriously and substantially humiliate her.
(24) sexual penetration without consent (penile penetration of vagina) and that immediately before the commission of the offence, he did an act, namely urinating on her which was likely to seriously and substantially humiliate her.
(25) unlawful and indecent assault (squeezing her breasts).
(26) sexual penetration without consent (penile penetration of vagina).
(27) sexual penetration without consent (penile penetration of vagina).
22 The learned trial Judge upheld a submission of no case to answer in respect of count 14 and the jury accordingly returned a directed verdict of not guilty on that.
23 On 16 January 2004 the jury found the applicant not guilty of the Gooseberry Hill offences but returned verdicts of guilty in respect of the 16 remaining Guildford offences.
24 By undated application filed 6 February 2004 the applicant sought leave to appeal against conviction in respect of the Guildford offences. The application set out 26 proposed grounds of appeal.
25 By application dated 26 July 2004 (sic: 26 April 2004) the applicant applied for leave to amend his grounds and particulars. That application contained 10 proposed grounds of appeal. A further notice was subsequently filed seeking leave to add another ground, bringing the number then to 11.
26 At the hearing on 2 July 2004, senior counsel for the applicant, Mr Shirrefs SC, sought leave to further amend the application. That not being opposed, leave was granted with the result that the proposed grounds of appeal as finally formulated are as follows:
"1. The learned trial judge erred in refusing to direct the jury in terms of a Longman Direction in respect of the counts for which the Applicant was acquitted (sic: convicted).
PARTICULARS
(a) the learned trial judge erred in refusing to direct the jury that it would be dangerous to convict the Applicant on the evidence of the complainant;
(b) The learned trial judge failed to warn the jury as to the lack of any complaint and the lack of any reasons for such failure to make a complaint;
(c) The learned trial judge failed to adequately direct the jury as to the lack of recent complaint.
(d) The learned trial judge was in error in stating that the reason that the complainant failed to complain was out of concern for her children as this did not relate to Counts 11-27.
2. The learned trial judge failed to adequately set out the defence case for the jury.
PARTICULARS
(a) The learned trial judge failed to put the defence case properly in that it was not only the case that the Applicant held an honest and reasonable belief that the complainant was consenting, but that a number of the alleged offences never took place, and those were never identified for the jury by the learned trial judge.
3. The verdicts reached by the jury in respect of Counts 11-27 were inconsistent with the verdicts reached in respect of Counts 1-10.
PARTICULARS
(a) The jury returned verdicts of not guilty in respect of Counts 1-10 on the Indictment;
(b) The jury were directed to acquit in respect of Count 14;
(c) The jury reached guilty verdicts in respect of Counts 11-27 excluding Count 14, the directed acquittal;
(d) The factual scenario in respect of the allegations made by the complainant were inextricably linked to Count 1-10;
(e) There was nothing over and above the factual scenario in respect of Counts 1-10 which took the Counts 11-27 into a different consideration of the complainant's evidence save for the time and place that the Counts were said to have occurred;
(f) The jury had to either accept all of the complainant's evidence in respect of both sets of Counts or reject it;
(g) The denials of the Appellant in respect of both sets of Counts were the same;
(h) There was other exculpatory evidence in respect of Counts 11-27 which was not present in Counts 1-10;
(i) The jury had to either find that they believed the complainant and disbelieved the Appellant or believed the Appellant and disbelieved the complainant.
4. The learned trial judge erred in directing the jury that they had to decide who was telling the truth and who was lying when the Applicant was never required to prove his innocence.
5. The learned trial judge failed to adequately direct the jury as to the elements of the offences pertaining to Counts 12-26 in light of the defence case being not only that consent was in issue, but also that some of the alleged offences were said never to have occurred.
6. The learned trial judge failed to direct the jury adequately as to the issue of motive of the complainant and albeit the learned trial judge was requested to re-direct on this issue, such re-direction was inadequate.
7. The learned trial judge failed to direct the jury adequately as to the defence case relating to motive and the evidence of Linda Lee.
8. The complainant at a crucial stage in cross-examination when the case was adjourned, exited the courtroom and came into contact with the jury at which time she expressed her anger and dismay at the questioning that she received from the Applicant's Counsel and the learned trial judge's apparent favouritism towards the Applicant's Counsel.
PARTICULARS
(a) The details of this contact is as set out in the Affidavits of Lorna Margaret Carroll and Siobhan Annette Glover filed and served in respect of the Appeal.
9. The learned trial judge failed to direct the jury as to the central plank of the defence case, namely the evidence of the prosecution witness White (sic: Wight).
10. The learned trial judge failed to direct the jury as to the lack of any corroboration in respect of Counts 11-27.
11. As a consequence of the jury returning guilty verdicts on Counts 19, 20, 21, 23 and 24, guilty verdicts should not have been received or recorded on Counts 18 and 22.
PARTICULARS
The offence constituted by Count 18 was a circumstance of aggravation in Counts 19, 20, 21 and was subsumed within these counts. Similarly the offence constituted by Count 22 was a circumstance of aggravation in Counts 23 and 24 and was subsumed within these counts.
12. The verdicts of the jury on counts 11-26 (sic: 27) were unreasonable and not supported on the evidence."
27 Senior counsel for the applicant then abandoned grounds 4 and 8.
28 Mr Shirrefs put it that notwithstanding the number of grounds of appeal, they really fell into three areas. These were the inconsistency of the verdicts (including the conclusion that the verdicts were unreasonable and not supported by the evidence), the failure of the learned trial Judge to give a general warning (of which senior counsel said Longman v R (1989) 169 CLR 79 is an example), and the failure of the learned trial Judge to adequately put the defence case.
29 I shall deal first with the applicable principles of law.
30 Inconsistency of verdicts is a good ground of appeal only if the inconsistency is such as to show the verdict of the jury is unreasonable or cannot be supported having regard to the evidence (s 689 Criminal Code (WA)). That phrase is equivalent to and encapsulates the notion of a verdict which is unsafe or unsatisfactory (Gipp v R (1998) 194 CLR 106).
31 In Jones v R (1997) 191 CLR 439 the High Court set aside convictions in respect of two offences of unlawful sexual intercourse with a female child. The child was a pupil at a gymnastic academy at which the accused was an instructor. The trial took place five years after the first alleged offence. The complainant was aged between 11 and 12 at the relevant times. She made no allegation against the accused until more than four years after the first alleged act. On her evidence, the acts of intercourse occurred when there was nobody present but herself and the accused. There were three counts of unlawful sexual intercourse. The jury acquitted the accused on the second count, but convicted on the first and third counts.
32 In their joint judgment, Gaudron, McHugh and Gummow JJ accepted that the test formulated by the majority in M v R [1994] HCA 63; (1994) 181 CLR 487 at 493 is the appropriate test for determining whether a verdict is unsafe or unsatisfactory.
"In M, Mason CJ, Deane, Dawson and Toohey JJ said (M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 493) that the test for an unsafe or unsatisfactory verdict was whether the court thought that, upon the whole of the evidence, it was 'open to the jury' to be satisfied beyond reasonable doubt that the accused was guilty. The majority emphasised, however, that it was not the function of the court to answer that question merely by examining the transcript of evidence and the exhibits. Their Honours said that:
'in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.'
The majority judges explained (at 508) the application of the test as follows:
'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. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence'."
34 In the result, Gaudron, McHugh and Gummow JJ held that given the jury's finding on the second count, it was not open to them on the whole of the evidence to be satisfied beyond reasonable doubt of the guilt of the accused on the first and third counts. The quality of the complainant's evidence upon the second count was no higher than that upon the first and third. Once the jury found that the evidence of the complainant with respect to the second count lacked sufficient cogency to convict, the Crown's case on the first and third counts wore a different complexion. It meant that, when her evidence could be set against other reliable evidence, it failed to carry sufficient conviction to reach the criminal standard of proof.
35 In R v Kirkman (1987) 44 SASR 591, King CJ pointed out at 593 that courts:
"... must be very cautious about setting aside verdicts which are adequately supported by the evidence simply because a Judge might find it difficult to reconcile them with the verdicts which had been reached by the jury with respect to other charges. Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law. Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and may have been technically proved, justice is sufficiently met by convicting him of less than the full number. This may not be logically justifiable in the eyes of a Judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries. Appellate courts therefore should not be too ready to jump at the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty. The jury may be quite reasonable at arriving at the verdict of guilty. That verdict may be amply supported by the evidence. They may decide for reasons of their own, unrelated to the strict logic of the situation, that they are unwilling to arrive at a verdict of guilty on another count on the information. I mention that point as a matter of general observation, but I think it is unnecessary to look to considerations of that kind in the present case."
36 In their joint judgment in MacKenzie v R (1996) 190 CLR 348, Gaudron, Gummow and Kirby JJ distilled (at 366-7) the following general propositions from a review of the cases:
"1. A distinction must be drawn between cases of legal or technical inconsistency and cases of suggested factual inconsistency. The former will generally be easier to resolve. On the face of the court's record there will be two verdicts which, in law, cannot stand together. Examples include the case where the accused was convicted both of an attempt to commit an offence and the completed offence (R v Roach [1948] NZCA 5; [1948] NZLR 677) or of being, in respect of the same property and occasion, both the thief and the receiver (R v Irvine [1976] 1 NZLR 96). There are other like cases (See, eg, R v Mitchell [1971] VicRp 5; [1971] VR 46 at 51_; Connecticut v Hinton_ (1993) 630 A 2d 593). Where technical or legal inconsistency is established, it must be inferred that the jury misunderstood the judge's directions on the law; compromised disputes amongst themselves; or otherwise fell into an unidentifiable error. The impugned verdict or verdicts must be set aside and appropriate consequential orders made.
2. Suggestions of factual inconsistency have arisen both as between different verdicts affecting the same accused and different verdicts affecting co-accused or persons tried separately in relation to connected events. ...
3. Where, as is ordinarily the case, the inconsistency arises in the jury verdicts upon different counts of the originating process in a criminal trial, the test is one of logic and reasonableness. A judgment of Devlin J in R v Stone (Unreported, 13 December 1954, per Devlin J) is often cited as expressing the test (See, eg R v Hunt [1968] 2 QB 433 at 438; R v Durante [1972] 1 WLR 1612 at 1617; [1972] 3 All ER 962 at 966; cf Archbold, Criminal Pleading, Evidence & Practice, 43rd ed (1995), vol 1, par 4-457):
'He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand.'
4. Nevertheless, the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense (See Mercer v Commissioner for Road Transport and Tramways (NSW) [1936] HCA 71; (1936) 56 CLR 580 at 595; Ward v Roy W Sandford Ltd (1919) 19 SR (NSW) 172). Thus, 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 (R v Wilkinson [1970] Crim LR 176). If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury (Hayes v The Queen (1973) 47 ALJR 603 at 604-605). In a criminal appeal, the view may be taken that the jury simply followed the judge's instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt (R v Andrews Weatherfoil Ltd (1971) 56 Cr App R 31 at 40). Alternatively, the appellate court may conclude that the jury took a 'merciful' view of the facts upon one count: a function which has always been open to, and often exercised by, juries (R v Hunt [1968] 2 QB 433 at 436). The early history of New South Wales was affected by English juries which, in the face of clear evidence, declined to find the value of goods stolen sufficient to attract the punishment of death, thereby affording to the offender the alternative punishment of transportation (Castles, An Australian Legal History (1982), p 56). Australian decisions have acknowledged that the role of the jury continues to be ameliorative in this respect. ..."
37 Their Honours then quoted the foregoing passage from the judgment of King CJ in Kirkman, and continued (at 368):
"We agree with these practical and sensible remarks.
5. Nevertheless, a residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury's duty (R v Irvine [1976] 1 NZLR 96 at 99; R v Morgan [1981] 2 NZLR 164 at 168-169; R v Cooper (1993) 149 AR 207; Ewaschuk, Criminal Pleadings and Practice in Canada, (1983), 15,212, requiring that the verdicts be 'so mutually contradictory or violently at odds in relation to the evidence that they cannot stand together in the sense that no reasonable jury, who had applied their mind to the facts of the case, could have arrived at the same conclusion': R v Peterson (1996) 106 CCC (3d) 64 at 79; cf Hall v Poyster [1845] EngR 363; (1845) 13 M & W 600 [153 ER 251]; Bedford v Crapper [1949] 3 DLR 153). More commonly, it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law (R v Zundel (1987) 35 DLR (4d) 338 at 401-402, applying R v McShannock (1980) 55 CCC (2d) 53 at 55-56; cf Mack v Elvy (1916) 16 SR (NSW) 313). It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside (R v Drury (1971) 56 Cr App R 104 at 105). It is impossible to state hard and fast rules. 'It all depends upon the facts of the case.'
6. The obligation to establish inconsistency of verdicts rests upon the person making the submission (See R v Hunt [1968] 2 QB 433 at 438; R v Kirby (1972) 56 Cr App R 758). But if, because of inconsistency between verdicts, the appellate court is persuaded that a verdict cannot stand, it must make consequential orders. In the case of a criminal trial, where the verdict has been followed by conviction and sentence, these must be set aside. Where the inconsistency is found between verdicts of acquittal and a verdict of guilty, the appellate court (statute apart) may not disturb the acquittal. It may be appropriate to enter a verdict of acquittal on the subject count(s) on the footing that this merely carries forward the logic of the other acquittal verdict(s). But once again, the relief which is appropriate depends upon the facts of the particular case."
38 That the relevant test is that propounded in M v R was affirmed by Gleeson CJ, Hayne and Callinan JJ in a joint judgment in MFA v R [2002] HCA 53; (2002) 213 CLR 606. One of the grounds of appeal in that case was that the verdicts of guilty were unreasonable and could not be supported having regard to the evidence in respect of the counts on which the jury returned verdicts of acquittal. Their Honours said (at [33] - [36]):
"In MacKenzie v The Queen, Gaudron, Gummow and Kirby JJ stated a number of general propositions concerning the significance that may properly be attached to what is sometimes referred to as factual inconsistency between verdicts. In that respect, it is to be noted that, where an accused is charged with multiple offences, differences between the verdicts may not, in truth, involve inconsistencies even of a factual kind. In the present case, if there had been a verdict of guilty on count 2 and not guilty on count 3, where the charges were supported by substantially the same evidence, then there would have been factual, even though not technical or legal, inconsistency. However the evidence in support of counts 7 and 8 was materially different from the evidence in relation to counts 1-6 and count 9. The complainant was, to a significant extent, supported by MA.
Since the ultimate question concerns the reasonableness of the jury's decision, the significance of verdicts of not guilty on some counts in an indictment must necessarily be considered in the light of the facts and circumstances of the particular case. Furthermore, it must be considered in the context of the system within which juries function and of their role in that system. A number of features of that context were emphasised in MacKenzie. They include the following. First, as in the present case, where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count. This will often be accompanied by a specific instruction that the evidence of a witness may be accepted in whole or in part. Secondly, emphasis will invariably be placed upon the onus of proof borne by the prosecution. In jurisdictions where unanimity is required, such as New South Wales, every juror must be satisfied beyond reasonable doubt of every element in the offence. In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. This may not be unreasonable. It does not necessarily involve a rejection of the complainant's evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant's evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others. Thirdly, there is the consideration stated by King CJ in R v Kirkman, and referred to in later cases: it may appear to a jury, that, although a number of offences have been alleged, justice is met by convicting an accused of some only. And there may be an interaction between this consideration and the two matters earlier discussed.
It appears from the review of decisions of trial judges and intermediate appellate courts undertaken in Markuleski that some judges have taken Jones as authority for the proposition that where multiple offences are alleged involving the one complainant, then verdicts of not guilty on some counts necessarily reflect a view that the complainant was untruthful or unreliable, and that an appellate court should consider the reasonableness of guilty verdicts on the basis that the complainant is a person of damaged credibility. That view is erroneous. It overlooks the attention to factual detail in the reasoning of Jones. It also overlooks the principles stated in MacKenzie, which were not qualified in Jones, and the considerations mentioned in the preceding paragraph in these reasons. Jones is not to be understood as establishing a set of legal propositions, separate or different from the test formulated in M, which must be applied in deciding whether a conviction on one or more counts of sexual offences, when the accused was acquitted on other counts, is unreasonable, or cannot be supported, having regard to the evidence.
The test established by s 6(1) of the Criminal Appeal Act is unreasonableness, not inconsistency. In the present case, there is an obvious explanation of the differences between the verdicts on the various counts in the indictment.
(Footnotes omitted and emphasis added.)"
39 Although McHugh, Gummow and Kirby JJ in a separate concurring judgment concluded the Court of Criminal Appeal had erred in its reasoning in respect of determining whether the verdicts were unreasonable, they said (at [97]):
"Before parting with this case we wish to make it clear that there is no difference between us and the other members of this Court about the essential issues decided in this appeal. Upon the application of the test in M, the operation of the principles in MacKenzie and the significance of the decision in Jones, this Court speaks with a single voice."
40 Against this background of the relevant principles, I turn now to the evidence in this case.
41 The complainant was 34 years old at the time of the alleged offences. For 15 years she had been involved in a de facto relationship with the accused. They have three children. The complainant has known the applicant since she was 12 years of age. Their relationship ended in April 1999 when she moved out of the house which the two were sharing.
42 According to the complainant she received a telephone call from the applicant on 30 January 2002 asking whether she would like to go to dinner with him. She said she declined the offer but agreed to see him as she had received some "court papers" which she wanted to discuss with him. They agreed to meet at some shops in Gooseberry Hill. The complainant chose that location as it was a public venue and due to a "prior history of what Mr Carroll is like". The shops were at the corner of Lenori Road and Railway Road in Gooseberry Hill.
43 The complainant drove her car there, arriving between 8 and 8.30 pm. The applicant was already there in his Toyota Landcruiser utility. The complainant parked alongside him and had a discussion with him. The applicant had a stubby in his hand.
44 The complainant said that at the time she was not interested in resuming her previous relationship with the applicant. The applicant finished his beer and said he would like another, so the complainant offered to go to the Kalamunda Hotel to get him one. She drove to the hotel, went inside and got two beers. As she was coming out she saw headlights flash and saw that it was the applicant. She followed in her car thinking that they were returning to the Gooseberry Hill shops, but instead of turning into the car park he drove on further down the road and turned left into the first street. The complainant continued to follow him. She said she actually thought that he might have been going to turn around. He carried on up the road a short distance and then turned right and pulled his car into a parking area, which she described as a "bush gravel area" on the side of the road. It was dark at this time. She could see lights in the distance that she presumed to be house lights but everything else around was dark. It was a very dimly lit area.
45 The applicant got out of his Landcruiser and the complainant got out of her car. She picked up the two stubbies of beer from the front seat and walked around the back of her car over to where the applicant was standing beside his vehicle. She moved to hand the beer to him but he did not take them, so she put them on the tray of the Landcruiser. She asked him why they were there because she did not feel comfortable. She told him that. He laughed and asked what was wrong.
46 The complainant was wearing a green summer dress and white high heeled sandals. The applicant was wearing King Gee shorts and thongs.
47 The applicant stepped in towards the complainant, grabbing hold of one of her breasts and started squeezing and scratching it. He was leaning into her trying to kiss her on her face and neck. She was taken by surprise and was not a willing participant. She tried to push him away and asked why he was doing it to her. He was being very rough and very aggressive. She then felt a hand go between her legs to her underwear. The applicant pulled at her underwear and her pubic hair and wrenched at her underwear, pulling her legs out from under her causing her to fall to the ground.
48 As she fell her left arm hit something on the side of the vehicle.
49 The complainant was dazed and dizzy and in a lot of pain from her arm. She thought she had broken it. She eventually picked herself up from the ground, telling the applicant that he had hurt her arm. He ignored her.
50 There were some noises in the bushes and the complainant asked who else was there, to which the applicant said there were a few mates going to join in.
51 As she was holding her arm up trying to look at it, she felt the applicant get hold of her legs again. He pulled them apart and went to lick her vagina. By that time her underwear had gone. He was crouching low and licked her vagina. She grabbed his hair with her other arm and pulled his head away. He said he had been "dying to taste that", then he stepped up and started to lean into her again, pushing into her and trying to kiss her on the mouth, face and neck. She said she was asking him not to do it.
52 The applicant then took hold of her right arm and walked her past his vehicle, past the bush area through some kopper logs and across an oval to the other side where there were big bushes and a cyclone fence.
53 The complainant was in a lot of pain, sick and scared. She thought her arm was broken.
54 When they got to the other side of the oval, the applicant put his arms around her trying to hug her and kiss her. She was moving herself around trying to get away from him. Eventually he grabbed her by the shoulders and pushed her down to her knees on the ground. He stood in front of her and told her to suck his penis, which he had removed from his pants. He put a hand around the back of her head, grasping a clump of her hair and pulled her head to and fro, telling her to suck his penis. She did so. He was stabbing her in the face with it, so she took him into her mouth as he was using his hand to thrust her head backwards and forwards onto his penis. She was gagging. The applicant then pushed the complainant backwards onto the ground and proceeded to penetrate her vagina with his penis. He then pulled her up from the ground and turned her into the cyclone fence so that the front of her body from about the rib cage down was pressed against it. He stood behind her and then began thrusting backwards and forwards between her legs, trying to get his penis into her vagina. Eventually he did so. It was hurting her. Her ribs were being crushed up against the cyclone pole at the top of the fence and she was finding it hard to breathe. In the course of this she noticed a small red or orange light in the bushes to the right-hand side and thought it looked like a cigarette. She said something about it and the applicant said words to the effect of "What do you reckon fellows - good show".
55 The applicant was getting agitated because his penis kept slipping out of her vagina so he kept trying to re-insert it. That happened probably about three times and after that he penetrated her anus with his penis.
56 The complainant said she was not a willing participant in any of this sexual activity. Anal sex was not something she performed. She described it as like a burning feeling and thought he was tearing her rectum and felt as though she could not control her bowels. She told him he was hurting her but he did not care.
57 He then turned around and pushed her back down onto her back. He sat on her, straddling her middle across her stomach and chest. Her arms were pinned by her side. She was trying to wriggle but she was unable to move him off her because he was too heavy. He moved his body forwards towards her face until his buttocks were smothering her face and then told her to put her tongue in his anus but she told him "no way" and to get off, but because he kept edging further forward and she was wriggling she could not breathe. She eventually managed to get her arms free and he moved back down her upper body until he was back on top of her chest. He then again told her to suck his penis which she did because he had hold of the back of her head and kept pulling her head up and down. He then withdrew his penis and ejaculated over her face and chest and stood up. She lay there for a short time trying to breathe and then got up off the ground. The applicant was just finishing putting his clothes on and told her to get his thongs.
58 The complainant was in shock and felt dirty and in pain. She said she tried using her dress to wipe his ejaculate from her. The applicant picked up his own thongs then took hold of the complainant again and walked her back to where the vehicles were parked. She was still very scared and stunned. She asked where her underwear was because she wanted it back. The applicant removed her pants from his pocket and smelled them and then began to wipe his face with them. She again asked for them back and he held them out towards her. She stepped forward to grab them but he said he was going to keep them. She repeated that she wanted them back. He also asked when they were going to do it again. She said "What? You've got to be joking". As she was talking she was moving back to her own car, got into it and drove off. She followed the road out, which led her to Kalamunda Road which she knew and so was able to drive home from there.
59 When she arrived home she was distressed and in pain. She sat out the front for a while "settling herself down" and then went inside and got straight into the shower to clean herself up. She said she had grazing to the palms of her hand, her left arm was sore, she had bruises to the left side of her leg and bruises to both sides of her legs and around her ankles and knees, bruises on her thighs and two across the back of her knees like rope burns and fine cuts and grazing on her back.
60 The following morning she had a friend accompany her to drive to the Central Police Station in Perth to report what had happened the night before. As she was driving along Kalamunda Road heading towards the city the applicant passed them travelling in the opposite direction. A short time later he telephoned her on her mobile phone and asked where she was going. When she told him, he became agitated and abusive, saying he wanted to speak to her and he would keep looking for her "... today, tomorrow, next week, until he effing found [her]".
61 The complainant's evidence was she discussed this with her friend and decided not to go to the police at that time.
63 On returning home the complainant tried to make an appointment with a doctor.
64 She was not able to see a doctor the following day but the morning after that was seen by Dr Jane Talbot, who referred her to the Sexual Assault Resource Centre ("SARC"). She saw Dr Maureen Phillips there about 6 pm that night. She gave the doctor her bra, underwear and dress. The doctor took photographs and conducted a general examination as well as a genital and anal examination.
65 The following Sunday, 3 February 2002, about 9.45 pm, the complainant was driving to a relative's house down Kalamunda Road when she received a telephone call from the applicant on her mobile telephone. He asked her where she was. She said she was "nowhere" and he responded with abusive language and told her to turn around. He was driving behind her. He overtook her car and drove a short distance ahead of her before pulling over a bridge and into a parking area at the side of the road. As he was doing this he told her to pull over. She pulled up with her car behind his. He immediately got out of his Landcruiser and walked back towards her. When she saw him approaching she removed the car keys and dropped them on the floor in case he took them. He then reached into her car and began grabbing at her clothing, at her breasts and pulling and pinching her through the open window. She had wound the window down to be able to speak to him.
66 The applicant then put his other arm into the car and thrust it up her skirt, pulling at her public hair. She told him that he was hurting her and that he was ripping her clothing and repeatedly asked him to stop. She was scared again and panicking and thought he was going to pull her out of the car and beat her. He then told her to get out of the car and to get into his vehicle. He was angry and abusive.
67 The complainant got out of her car and walked to the passenger side of the applicant's vehicle. Once he saw that she was in his vehicle, he walked around to the driver's side and got in and drove off. According to the complainant he said something to her about "where should I go?"
68 Her own car was left standing by the side of the road; the keys were still on the floor. She said to the applicant they should not be going anywhere and made a comment to him about her car being on the side of the road and that it might be stolen and also said the children would worry about her. She said she told him she did not want to go anywhere with him because he had been drinking and he did not have a driver's licence.
69 The applicant drove down Kalamunda Road towards the Tonkin Highway bypass and then turned into the Guildford Cemetery.
71 The applicant drove his car down to the end of the driveway in the cemetery and parked about six feet or so away from the last row of graves. He told her to take her clothes off. She said she did not want to. He repeated the demand and when she did not do so he began to pull at her clothes, groping at her. She could hear cotton on her clothes ripping and kept asking him to stop. On this occasion she was wearing a long full-length black skirt and a light green top. The applicant was wearing a dark coloured King Gee shirt and black jeans. He again told her to take her clothes off and so she then began to undress. Once he saw that she was undressing he began taking his own clothes off. He walked around to the passenger side of the car and opened the door. The complainant was still sitting on the passenger side seat with her underwear on and he told her to take all of it off. She pleaded with him to keep her underwear on and he threatened her again, so she removed it.
72 As she was doing that, the applicant was rummaging through her handbag. She asked him what she was doing and he said he was looking for something; he said he was looking for "toys" and said something about a dildo. She said in evidence that she told him she did not have anything like that in there.
73 The applicant then leaned into the car and again began touching and squeezing her breasts really hard, then he grabbed one leg and turned her body to face out of the car and began to try and kiss her. She said he was "like a frenzy" just "groping and pulling and pinching and scratching and smothering her".
74 The applicant tried to have penile intercourse with her but because of her position in the car was not able to get at her properly. He kept asking her to move but she would not and he became agitated again and eventually pulled her out of the car and over to a grave. He pushed her forwards and she stumbled over a broken outer edge of the grave and fell forward onto it. She put her hands out to break her fall. The applicant was still right behind her and grabbed hold of her around her waist and began to thrust himself backwards and forwards. At that stage his penis had not penetrated her vagina, he was just thrusting and pushing her backwards and forwards also. He eventually did achieve penetration.
75 The complainant said this hurt because there was no lubrication. She told him that and asked him to stop but he ignored her and just laughed.
76 After that the applicant turned her around and sat her on the side of the grave, pushing her to lay back on the grave. He then grabbed her legs, raised her buttocks off the grave and attempted to have oral sex with her. She was wriggling and rolling, trying to get out of his grasp and telling him not to do it. He did make contact with his mouth on her vagina but she was wriggling so much he eventually put her back down onto the grave, grabbed the side of her head and tried to kiss her on the neck and the face. He then eventually spread his hand around to the back of her head and told her to suck his penis, which she did because he was ramming it into her face and she had no choice.
77 When he withdrew his penis from her mouth, she thought it was because he was ready to ejaculate but instead she realised he was urinating over her. He had hold of her hair and one arm and held her while he urinated on her face, her hair and her body. She tried to pull herself out of the way but he had hold of her and she could not do so. She said it was freezing cold and told him to stop. He did not stop.
78 The applicant then pushed her backwards down onto the grave again. Holding her towards the thigh area he lifted her legs and tried to insert his penis into her vagina. However the grave was so slippery and she was wriggling so much that he had great difficulty, although he did manage to achieve penetration.
79 According to the complainant the applicant then began to swing her from side to side up from one end of the grave to the other. His hands were wrapped around her upper legs and was swinging her from side to side up and down the length of the grave. She was crying and tried to get him to stop telling him that it was hurting her, but the applicant just continued to laugh at her.
80 He eventually stopped and let her go. She sat up on the side of the grave. She was freezing cold and wet. She asked if she could get her clothes back on and get back into the car, but he grabbed her arm and pulled her up, walking her around the front of his car to another grave. There he tried again to try and hug and kiss her and proceeded to penetrate her vagina with his penis from the front. The top of this grave had very rough, coarse rock or little stones on it. He was not able to complete intercourse so he lifted one of her legs onto the grave and wrapped the other around his body. He attempted again to penetrate her, thrusting at her while she was struggling to maintain balance. He was unable to complete intercourse so he pushed her back onto the grave, turned her around and penetrated her anus again from behind. She said the rocks on the grave were so rough she felt as though they were cutting her palms and body.
81 The applicant then turned her around and took her to another grave directly in line with the last. He told her to step up onto it and lift her arms. He spread her legs apart again telling her that he wanted to look at her body in the moonlight. She dropped her arms, turned around and stepped back off the grave and stood to face him. She asked him why he was doing this to her. All he said was something about her being sexy because "she was the best ... he had ever had".
82 The complainant says that all this time he was asking her questions about whether she had another boyfriend, what she let other boyfriends do to her and questions of that kind. She said she was just ignoring him and not replying.
83 After a while the applicant walked her over to his vehicle to the part of the tray behind the driver's door. She noticed he had his swag on the back and asked if she could have a blanket because she was freezing cold, however he just grabbed hold of her again and walked her around the back of the utility towards the first grave.
84 She sat on the edge of the grave still naked. She was just starting to dry off, although her hair was still slightly damp. The applicant then penetrated her "from one end to the other" and then again urinated all over her a second time. He then told her to suck his penis again and began thrusting her head backwards and forward onto it, causing her to gag. She said she could remember the taste on his penis like faeces or anal fluids or whatever it was. She said it made her sick and she tried telling him and begged him to stop.
85 The applicant did not ejaculate. He then pushed her back up to the grave, lifted the bottom half of her body again and penetrated her vagina with his penis. As he was thrusting into her, she looked to one side and noticed car lights approaching. She told the applicant. He immediately put her down, told her to get dressed and got up and walked to the car. Each of them got into the car and she started putting her clothes on. The other car stopped about two car lengths back.
86 The applicant could see that it was a security car.
87 The applicant told her to go and speak to the driver. He also said he wanted her to drive the Landcruiser. When the other car stopped she got out of the driver's side door and walked towards it, keeping her eyes on the applicant who was at that stage standing at the passenger door of his Landcruiser. She testified that she thought he could possibly have a weapon.
88 She said she was terrified. She also did not want anything to happen to the security guard as well as to herself.
"Can you recall what you said to the security guard?---Yes, as soon as I walked up to him I said to him, 'We shouldn't be here, should we?' and he said, 'No, no (sic: not) really' and I said that we would leave straightaway and I said 'You could follow us.' I asked him more than once if he would follow us and he said that he had a couple of things to do there and he pointed to a shed that he would be in. I don't know how many minutes he said he was going to be but as I stood there with him I remember feeling embarrassed as well that he might have smelt the stench of my body, that he - - -
Did you tell the security guard about what had happened?---No.
Did you go back to the car, walk back to the car?---I did.
Did the security guard stay there or did he leave?---He then got in his vehicle, turned his vehicle around and proceeded to drive to a shed that was down the end of that second part of the road.
When you got back to the car, Mr Carroll's car, what happened?---I got in the driver's side door. Mr Carroll is still standing outside of the door on the passenger side. He's - the doors are open; he's just standing right next to the car there. He then said to me, 'What are you doing?' and I said, 'You told me to drive' and he said, 'Fuck off', get out.'
Did you then - - -?---So I then got into the passenger side of the car. I believe I just moved across in the car, passenger side of the car, and Mr Carroll got into the driver's side of the car, turned it around and proceeded to drive it out of the graveyard."
90 The applicant drove to where the complainant's car had been left and stopped. The complainant grabbed her handbag and opened the passenger door and turned to get out of the car. She found the applicant had already moved around to that side and was in the opening of the door blocking her way. He began again to pull at her clothes and tried to initiate intercourse. He was grabbing her breasts and vagina. He pulled her underwear to one side and attempted to have intercourse whilst she was sitting in the passenger seat of the car. His penis penetrated her vagina. He was thrusting at her and swearing. He then pushed her onto her back across the gap between the seats. Asked how it ended, she said that she had at one time tried to deter him by saying again she could see light and the applicant said "It's just the cops and they'll be back in a few minutes". She said she didn't know why he made that remark but he eventually gave up when she suggested to him they go somewhere else. Asked why she made that suggestion, she said she did not know what else to do. They were in an industrial area with no houses around and she thought that if they went somewhere else, maybe he might have gone somewhere more public. Asked then what he did when she suggested that, she replied (AB 101):
"---He looked at his watch and then said to come back to his house, and a number of times he actually said to me, 'Are you going to come back to my house? Come back to my house.' He was telling me to go back to his house. I agreed that I'd go back to his house, so he asked me to follow him, so when he - let me get out of the car then and I walked to my vehicle, got in it and drove. I followed him until I got to a certain point where I knew that I could carry on driving and that's what I did.
Where did you drive to?---Home."
91 The complainant said that as a result of the second incident she had more grazing than resulted from the first. There was grazing down on the bottom lower back, small multiple bruises and much the same injuries as the first time including a problem with her rectum in that she could not go to the toilet properly.
92 In cross-examination the complainant admitted that following the end of their relationship in April 1999 she and the applicant maintained a sexual relationship with incidents of sex at both his and her house but never in public places. However sexual activity had ceased 12 months prior to January 2002. She denied that when they had engaged in sexual intercourse at his house, she had brought her "little bag of tricks" described by counsel as being a bag containing dildos, gel and condoms.
93 She agreed that she had seen the applicant after 3 February 2002, namely on 6 February, but said that was when he came around to her house in the night and she did not let him in.
94 The complainant denied ordering pornographic videos to watch with the applicant during the course of their relationship or that she had watched them. She denied that it was a fetish of hers to engage in "golden showers", which involving being urinated on during the course of sexual activity. She insisted the applicant had never urinated on her until the incident on 3 February 2002. She also denied that she had engaged in anal sex with the applicant in the course of their relationship. She said that was something she did not do.
95 She agreed that the Gooseberry Hill Shopping Centre was a regular or usual place for her to meet the applicant and that on 30 January she told him she wished to speak to him about a restraining order that he and his then de facto Ms Glover, were taking out against her. She said that although their sexual relationship had ceased in about January or February 2001, the applicant had persisted in stalking her - he was following her, watching her and making telephone calls to her house.
96 The complainant agreed that on 28 December 2000 she wrote a letter to Ms Glover expressing her desire to have the applicant back and telling Glover to stay away from the applicant.
97 She admitted to knowing a person by the name of Linda Lee, whom she described as more a friend of the applicant than her own but denied ever telling Lee "I hope he leaves a mark on me because then I'll do him for rape".
98 In July 2000 the complainant discovered she was pregnant to the applicant but terminated that pregnancy. During this time the applicant told the complainant he had been in a relationship with someone else, who the complainant believed to be Glover. The applicant attempted to reconcile his relationship with the complainant and assured her that the relationship with Glover was over. In October 2000 the applicant was at the complainant's home having dinner with their children when he received a telephone call from Glover. The complainant formed the opinion that the applicant was again involved in a relationship with Glover. The applicant also told the complainant of another two women with whom he was involved. At the beginning of 2001 the complainant decided to end the relationship.
99 The complainant admitted to sending a number of emails to Glover, telling her to stay away from the applicant but maintained that much of the content was influenced by directions from the applicant.
100 She agreed that on 15 January 2002 she met the applicant and he transferred ownership of a Toyota Lexen car to her as part of a supplement for child support payments. She denied going back to his house for sex afterwards, denied having sex with him after a number of Family Court appearances and denied having sexual intercourse with him at Lesmurdie Falls.
101 She confirmed that a restraining order was granted in Glover's favour against the complainant on 29 November 2002. She denied telling the applicant's mother and Glover that "If I can't have Danny Carroll, I'll ruin his life".
102 The complainant reiterated that she had met the applicant on 30 January 2002 to discuss the fact that he and Glover were seeking restraining orders against her. She said it was the applicant's suggestion that they meet in person that night to discuss the order. She said the reason she continued to follow him after it became obvious that he was not returning to the Gooseberry Hill shops was because she thought he was going to turn around and head back there. She said she did not make a complaint to the police on returning to her home because her children were worried for her and she did not want to talk to police in front of her children about such an incident.
103 Questioned about the second incident on 3 February 2002, she said that when the security guard arrived she did not ask him to call the police because she was aware that the applicant carried a weapon in his vehicle around about the position that he was standing at the time.
104 A video-tape was played of the complainant attending the applicant's home on 22 December 2001 and using grossly abusive language to Glover. Neutrally expressed, she said words to the effect that she and the applicant could contact each other and talk any time and "Thursday night was beautiful". Towards the conclusion of the tape she is recorded as saying "He's the sick one okay, he's on you one day and on me the next, he's the sick one Chev. He's fucking you and fucking me, you stupid fuckin' whore."
105 In cross-examination the complainant said that the reference to Thursday night was an occasion on which she had met the applicant at the Gooseberry Hill shops with her little son to "receive some papers off him or a Christmas present". She denied she had been engaging in sexual behaviour with the applicant. She explained that the reference to she and the applicant seeing or talking to each other at any time was an agreement that the two of them had made previously that if they ever needed to call each other they would do so. She reiterated that her sexual relationship with the applicant had ended some 10 to 12 months before 30 January 2002.
106 She said that on 3 February 2002 when the applicant was overtaking her car, it was very dark where they were driving and she was terrified he was going to run her off the road. She said he came around in front of her and cut in front of her.
107 As to the meeting on 30 January 2002 she said they were having a conversation and the applicant ordered a pizza which she waited to have brought out. When it arrived, he ate a portion of it and she offered to go and buy more beer because he was still eating. She said she was going to drive up there quickly, get a couple of beers, come back and finish the conversation with the applicant.
108 She denied she was a willing participant in the sexual activity. She denied that she and the applicant were kissing and cuddling as they walked back across the oval towards their car and she denied there was a discussion about how the applicant had not ejaculated. She denied that she then squatted in front of him and performed an act of oral sex on him whilst he was standing beside his utility and encouraged him to ejaculate.
109 As to the incident on 3 February 2002, she agreed that during the course of the day she had had some discussions over the telephone with the applicant but they had not decided to meet up that night. Specifically, she denied that she had arranged to meet him at Fleming Reserve. She denied, when it was put to her, that she had met him there and then left that location having arranged to go to a more secluded place together.
110 At AB 231 she was asked about the arrival of the security guard:
"When the fellow, the security guard, arrived later in the night, you had actually just undergone what you say was the second urinating incident. Correct?---Yes, that's correct.
So you would have been wet from the urine because it didn't dry. Correct?---I would've still been damp from it - - -
And you were crying, weren't you? Correct?---By the time I approached the security guard, I wasn't bawling my eyes out then but I was conscious of the fact that he may notice that I looked to be upset, that he may smell the stench on my body, that he may notice my hair still being damp."
111 She agreed she did not tell the security guard anything of what had happened. She denied laughing and giggling when speaking with him. Asked what she said to him she replied:
"... I said to him that 'We shouldn't be in here, should we?' and he said no that we should not, and I said, 'We will leave straightaway,' and I asked the security guard to follow us."
112 She said in any event she did not want to alert the security guard to the situation because where the applicant was standing by his car was around the position where she believed he carried a weapon.
113 A little later, asked again about what she had said to the security guard she said (AB 241):
"---When I had asked him about following us, that he said he had a couple of things to do at a shed behind where his car was parked, and that he would be a few more minutes.
Did you ask him to follow you out?---I asked him a number - a couple of times to follow us out.
How many times did you ask him that, please?---I don't know exactly - two, three times I said, you know, 'Can you follow with us?' - 'Can you follow with us?' - 'Can you follow us out?'
Those were your words, 'Can you follow us out'?---Yes.
What was his response to that?---He explained to me that he had to go and do something in the shed, things in the shed, so he was going to be a few more minutes yet.
Did you ask him whether you should leave now or not?---I said that to him at the beginning. I said, 'We shouldn't be in here, should we? We'll leave right now. We'll leave straightaway'."
114 Dr Talbot saw the complainant as a patient on 1 February 2002. According to her, the complainant was quite agitated. The doctor noted bruising on her left forearm and behind both knees. The complainant reported that she had been sexually assaulted. Dr Talbot counselled the complainant and referred her to the SARC.
115 The complainant was examined by Dr Phillips at SARC later the same day. She gave a history that she had been grabbed around the throat and various parts of her body and that there had been sexual penetration of her mouth, vagina and anus, with ejaculation on her chin and face. She complained spontaneously of aches all over her body, a sore neck, frequent urination and discomfort with the passing of urine, loose bowel motions and an itchy back.
116 Dr Phillips conducted a general examination of the complainant's genital and anal area. She noted an area of tenderness at the base of the complainant's neck near the larynx, tenderness at the lower cervical vertebrae and a number of minor injuries on the right arm, including two yellow bruises on the front of the forearm, both of which were at least 18 hours old and a number of small cuts along the length of the forearm. On the left arm there was a large purple bruise 13 cm x 4 cm lying vertically along the inner aspect of the elbow with a superficial abrasion over it. A number of small scabs of 1 mm diameter were located on the complainant's chest area. Her back was covered with multiple, fine, linear abrasions approximately 1 cm in length. There was a 1 cm diameter bruise on the upper right buttock.
117 On the left leg there was a group of four abrasions on the outer side of the back of the knee joint, a dark blue bruise on the inner aspect of the knee joint and thin scratching on the ankle.
118 On the right leg there was a purple green bruise behind the knee and a bleeding abrasion over the Achilles tendon at the back of the ankle.
119 Examination of the genital area revealed a small pink mark near the urethral orifice, three split-type lacerations of the fossa navicularis, a thick yellow fluid in the high vagina and a red and bruised area around the opening of the anus.
120 Dr Phillips concluded the large bruise on the left arm was caused by significant trauma to that arm. The multiple abrasions to the back suggested contact with a rough surface. The bruising to the rear of the knee with horizontal scabbing suggested simultaneous movement and application of blunt force, as if something had been pulled across the back of the knee. The lacerations to the fossa navicularis and the red and bruised area to the anus suggested that blunt force had been applied to each area, that in turn was highly suggest of recent vagina and anal penetration. The trauma would have occurred in the last few days but the doctor was unable to be more precise than that.
121 The security guard who attended the Guildford Cemetery on 3 February 2002 was Jeffery Wight.
122 He testified that he was on routine patrol in the area that night and about 1 am on the Sunday morning, noticed a vehicle parked in the cemetery. He illuminated that with his hand-held spotlight and saw it was a Toyota Landcruiser situated about 100-200 metres off the main road near the back of the cemetery. He said that he pulled up beside the vehicle and saw a man standing beside the passenger door which appeared open. The male was wearing a white singlet, dark coloured trousers which looked like track-suit pants, was just under 6 foot tall and had short, dark hair. He appeared to be in his 30s. Wight said he got out of the vehicle and spoke to the male but did not receive a response. Shortly afterwards, a female got out of the driver's side and walked towards Wight. She was approximately in her early 30s. Wight commented that they should not be there and she responded along the lines: "We're only making out, it was too busy on the road". Wight repeated that they should not be in the cemetery. The complainant then asked if Wight wanted them to leave and he said "Yes, it would be better if you did leave". She again asked if they had to leave and he said they did. She returned to the driver's side of the vehicle and got in and the male got into the passenger side. As they left, Wight made a note of the registration number and a brief description of the vehicle.
123 In cross-examination Wight said nothing about the woman's clothing stood out when she approached him. Asked if she appeared to have been crying he said he did not notice it. Asked whether she looked distressed or upset he said that he was at his car and she remained essentially about the back of the other vehicle so he really could not see her closely, although he agreed that if she had been crying or in a dishevelled state, he would possibly have noticed that. He said he did not tell her that he was going down to the back shed to do some work nor that he had other things to do around the cemetery.
124 An investigating police officer spoke to the complainant about the incident on 3 February and collected some clothing from her. However, that was not sent for forensic examination as the complainant told the detective the clothing had already been washed.
125 In his evidence the applicant said that although he and the complainant stopped living together in April 1999, he continued to maintain contact with her beyond that. They would both meet at each other's homes and in public places in the hills. This relationship continued through 2000 and 2001. The applicant maintained a relationship with Glover whilst continuing his sexual relationship with the complainant. He said that at no time during this period did he tell the complainant to write to Glover telling Glover that the relationship between him and her was over.
126 The applicant's birthday is on 15 July. In both 2000 and 2001 the complainant came to his house for dinner on the occasion of his birthday and the two had drinks and sex. On his birthday in 2001 they watched two pornographic films and had sex in the lounge room. The applicant had ordered both the films after discussing them with the complainant and they had both decided on the two they wanted.
127 The complainant and the applicant would also have sex when the applicant gave her child support cheques. A couple of times after attending Family Court the complainant would follow the applicant home where they would have sex. This occurred twice in 2001. On those occasions, both participated in anal sex and "double penetration" where the applicant would have anal intercourse with the complainant whilst she was using a dildo.
128 According to the applicant, he met the complainant at the Kalamunda Hotel in August or September 2001 when he gave her his Toyota Lexen. After he signed the vehicle over to her they had a beer and returned to his house where they again had sex, including anal intercourse.
129 In September 2001 they went to Lesmurdie Falls after the complainant came to the applicant's home to pick up a cheque. They agreed to go somewhere to have sex and chose Lesmurdie Falls as it was closer to the complainant's home. On the way to Lesmurdie Falls the complainant was in the passenger seat, naked and masturbating herself. Upon arriving at the Falls, the two had sex on a rock near the creek.
130 Other meeting places were Fleming Reserve and the Gooseberry Hill bottle shop car park. Once at Gooseberry Hill car park they would decide where to go in order to have sex. One place they did agree to go for that purpose was Mary's Mount Primary School.
131 On 30 January 2002 the applicant had a conversation with the complainant about meeting to discuss a restraining order that he and Glover were taking out against her.
132 It was the applicant's evidence that other sexual acts that he and the complainant participated in included vaginal sex, cunnilingus, fellatio, licking each other's anus, sucking each other's breasts and the applicant inserting dildos into the complainant.
133 The applicant said that on 6 February 2002 he saw the complainant during the day. It was inconvenient for her to speak to him then so she asked him to call her back that evening. He did so, and she invited him back to her place. He went there and knocked on the door in order to avoid waking the children. She let him into the house and they moved into the lounge room where they engaged in vaginal, anal and oral sex.
134 The applicant said that on 30 January 2002 the complainant called him on his mobile phone whilst he was at work. She wanted to discuss access to the children. He accordingly went to a pizza bar in Gooseberry Hill, arriving about 8.45 pm that evening where he had a pizza and a stubby of mid-strength beer. The complainant also arrived about that time and reversed her car in next to his. She got out of the car and had a conversation with him. They were there for about 15 minutes before going to the Kalamunda Hotel to get more beers. He said they both drove there with him leading the way. He says that upon arriving, the complainant brought him a couple of stubbies and she had a can. He said he then led her in her car to the oval of Mary's Mount Primary School. Both parked at the rear of the oval then got out, started drinking their beers and began kissing. The complainant had her handbag. This usually contained condoms, lubricating gel and a couple of dildos. The two started rubbing each other before eventually the complainant squatted and began giving the applicant oral sex for approximately 5 or 10 minutes. She then stood up and the applicant removed her panties by rolling them down over her bottom. She lost her balance and fell over, catching herself on the back of the tray of the utility. She then got up, removed her underwear and gave her briefs to the applicant. The two of them then went to the other side of the oval where it was more secluded. They arrived at a fence and began having vaginal sex from the rear after the complainant had again engaged the applicant in oral sex for 10 to 15 minutes.
135 The applicant testified that the complainant then said she saw a light and the two moved over to the shadows where they fell to the ground and resumed sexual intercourse. The applicant attempted to have sex with the complainant's breasts but was unsuccessful. Because his penis and testicles were near her mouth the complainant began to suck his testicles whilst masturbating him and licking his anus. This lasted for a further 15 minutes. After that they returned to the car.
136 The applicant testified that whilst they were at the fence the complainant had placed a condom on his penis and he had anally penetrated her whilst she was holding on to the fence.
137 On returning to the car the complainant removed the condom and began sucking the applicant's penis. This lasted for 20 to 25 minutes before he ejaculated onto her breasts. She then rubbed the ejaculate on her breasts, over her dress and in her hair. She then arranged herself and the applicant gave her back her underwear. He then left in her car and she followed.
138 As to the events of 3 February 2002 the applicant said that during the day he was at home working around the house. The complainant spoke to him on the telephone in order to arrange to drop her son off with him. They arranged to meet at Fleming Reserve later that night at approximately 9 or 9.45 pm.
139 Upon keeping that arrangement, they both decided to go to a more secluded area in order to have sex. As they were driving, the applicant saw a gravel road and an indent and pulled his vehicle in. The complainant followed. The applicant then did a U-turn to head back towards the gravel service road and the complainant continued to follow him. They parked 50 or 60 metres up the access road. The complainant got out of her car and the two kissed and cuddled and she then got into the applicant's car. They then drove to the Guildford Cemetery and got out. The complainant removed the applicant's shirt and he took off his jeans. They began to kiss and fondle each other. The complainant then removed her clothes, folded them up and placed them in the rear of the car. He said she was "meticulous" in this regard. They resumed kissing and cuddling.
140 The complainant then stood on a kerb surrounding a grave and the applicant penetrated her vagina with his penis for approximately 20 minutes. They then went back to the car where they talked and kissed. After that they went to a smooth topped grave where the applicant engaged in cunnilingus with the complainant. This went on for quite a while and then at her request, the applicant urinated on her torso. That was not the first time they had done this but it was the only time that he did so that night.
141 The applicant says he then took her by her legs and moved her from side to side for 10 to 30 seconds. Both were laughing and giggling. The applicant then pulled the complainant up.
142 He said the next thing he remembered was seeing a car arriving. At that stage he was at the passenger side of his vehicle. He told the complainant to go and speak to whoever it was. Both put their clothes back on. He said the complainant was laughing and speaking with the security person for a short time and then returned to their vehicle and said "He wants us to leave". The complainant got into the driver's seat and the applicant got into the passenger side and the complainant drove them back to her car.
143 Upon arriving there, the complainant asked the applicant why he had not "come" yet and began to have oral sex with him. She then got a condom from her handbag, placed it onto his penis and began to masturbate her vagina in front of him. The two then had anal sex until he ejaculated. She took tissues from her handbag to clean his penis. The applicant put his pants back on, the two hugged and they both left in their separate cars with the complainant following the applicant. As they parted she honked the horn of her car and waved goodbye.
144 The applicant adhered to this account in cross-examination. He maintained it was the complainant who had the fetish for anal sex and urination and that he personally did not like being urinated on. He said it was common for her to provide him with fellatio after anal sex and she had no problem with sucking his penis after that even when a condom had not been used.
145 For present purposes it is necessary only to also mention the evidence of Linda Lee. She was called by the applicant. She testified that she had known him for 18 years and the complainant for approximately 23 years. She testified that in 1996 the complainant had a conversation with the applicant about finances during which the complainant appeared to be stressed for money. The conversation took place in the complainant's dining room at her house. Lee asked the complainant why she did not ask the applicant for money. She asked the complainant whether she received maintenance and the complainant said "no" but she would get her maintenance later on and it did not matter how and if she did not get it, "she would make him pay".
146 There was a further conversation in 1997 which occurred out the front of Lee's home. The complainant told Lee that the next time she and the applicant had sex she hoped that he would leave enough bruises on her so that she could "do him for rape".
147 As I have observed above, the question is whether, given the evidence and the way in which the case was presented, the verdicts on the Gooseberry Hill counts necessarily lead to a conclusion the verdicts on the Guildford counts are unsafe or unsatisfactory. It cannot be argued that the verdicts are legally or technically inconsistent. They can properly stand together. The counts charge individual different offences occurring on different days. The learned trial Judge correctly directed the jury that they had to give separate consideration to each charge in light of the evidence which applied to it. The claim is not that the verdicts are factually inconsistent, rather it is said they fail the test of logic and reasonableness as expressed by Devlin J in R v Stone, unreported; UKCCA (Devlin J) 13 December 1954, which was referred to by Gaudron, Gummow and Kirby JJ in MacKenzie at 365 as expressing the reluctance of courts to "undermine jury verdicts or to infer from them that the jurors, drawn from the community, have done otherwise than their duty as committed to them by law" for "reason of history, institutional integrity and finality of trials ..." Mr Shirrefs expressly argued the instant case is one which falls into the fifth category adumbrated in MacKenzie, namely that the verdicts are "an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury's duty".
148 It is for the applicant to satisfy this Court that no reasonable jury who had applied their mind properly to the facts of the case, could have arrived at that conclusion (that is to say, those different verdicts). If there is a proper way by which the verdicts may be reconciled, it is generally to be accepted that the jury performed their function properly. Even where it may be difficult to logically reconcile the verdicts, a court must still be very cautious about setting guilty verdicts aside where they are adequately supported by the evidence, for the reasons explained by King CJ in Kirkman.
149 It is apparent the jury treated the offences as comprising two separate incidents, albeit each involving allegations of numerous multiple offences. That is shown by the fact that the jury returned verdicts of not guilty in respect of all the Gooseberry Hill counts and verdicts of guilty in respect of all the Guildford counts.
150 What on the face of it is perhaps surprising, is that the verdicts in each instance did not go the other way. That outcome would to my mind have been much more readily understandable. That is because there was evidence of recent complaint and medical evidence which was capable of supporting the complainant's account (which Mr Shirrefs described as "arguably corroborative") in respect of the Gooseberry Hill counts. By contrast, not only was there no recent complaint and no medical evidence at all in respect of the Guildford counts, there was in relation to them the significant evidence of the security guard Mr Wight, whose testimony conflicted with that of the complainant on important aspects.
151 Mr Cock QC submitted that the different verdicts can properly be reconciled on the basis the jury did accept the evidence of the complainant concerning both incidents, but had a reasonable doubt that the applicant had an honest and reasonable but mistaken belief that she was consenting to the sexual activity on 30 January at Gooseberry Hill, and was satisfied he had no such belief on 3 February at Guildford Cemetery. A reasonable doubt about that would have relieved the applicant of criminal responsibility under s 24 of the Criminal Code.
152 Mr Shirrefs responded that it was never the applicant's case at trial that he had an honest and reasonable but mistaken belief that the complainant was consenting; it was always that she was actually and actively consenting and participating.
153 It is true that was the applicant's evidence and that was the way the defence was presented. Nonetheless, a trial Judge is obliged to direct a jury on the availability of a legal defence which fairly arises on the evidence, whether or not the accused expressly seeks to rely upon it (Van Den Hoek v R [1986] HCA 76; (1986) 161 CLR 158, 161-2; Stingel v R [1990] HCA 61; (1990) 171 CLR 312) and the learned trial Judge did so here. At AB 462-3, speaking of the counts of indecent assault, his Honour reminded the jury that the applicant's evidence was that the complainant was consenting in each instance and accordingly the Crown (sic: the State) had to prove beyond reasonable doubt that he did not have an honest and reasonable belief that she had freely and voluntarily given her consent. He elaborated appropriately on that direction and repeated it when directing the jury on the elements of sexual penetration without consent (AB 466-7).
154 Senior counsel for the applicant forcefully submitted that on the evidence there was no basis upon which the jury could have believed the complainant but still been left with a reasonable doubt that the applicant had an honest and reasonable but mistaken belief that she was consenting in relation to the Gooseberry Hill counts. He referred to the complainant's evidence that when the applicant first grabbed and squeezed the complainant's breasts and tried to kiss her, she tried to push him away, that he pulled her legs out from under her whilst trying (she presumed) to tear her underwear off, that he ignored her when she told him she had hurt her arm and thought it was broken, that later, whilst he was forcibly licking her vagina against her will she grabbed his hair and pulled his head away and that when he was trying to kiss her on the mouth, face and neck she was asking him not to do it. Senior counsel then referred to the complainant's evidence that the applicant took her by the arm to the area by the cyclone fence, that he made some reference to a noise she heard, being some mates who were going to join in, that she was trying to move away from him while he was attempting to hug and kiss her and that he eventually pushed her shoulders to make her drop to the ground, at which stage he pulled her head back and forwards by the hair, telling her to give him oral sex.
155 Mr Shirrefs emphasised the complainant's evidence that she did not engage in anal sex, pointing out that as she and the applicant had lived together for some 15 years, that was something he would have known - and that she told him it was hurting her.
156 In summary, the submission made by senior counsel in this regard was that those parts of the complainant's evidence demonstrate that on no view of her description of the incident could a jury ever come to the conclusion that the applicant had an honest and reasonable but mistaken belief that the complainant was consenting. He submitted that the description she gave was one of a violent, physical, sexual attack upon her in circumstances in which, if she was to be believed, he was undoubtedly guilty of the crimes charged. The effect of that, it was submitted, is that on examination of the facts of the case, it was not open to the jury acting reasonably to conclude that while the complainant was not in fact consenting, the applicant may have reasonably, but mistakenly, thought she was.
157 Mr Cock QC, on the other hand, submitted there was not a great deal of difference between the accounts given by the applicant and the complainant and the history of their sexual relationship showed that it was "... somewhat more aggressive, somewhat more extensive and somewhat more wild than would sometimes be the case in a relationship." He submitted that even on the applicant's own evidence, the way in which he engaged in the sexual activity on 30 January was "certainly not mild" and there were elements of the evidence which would have justified a jury coming to a conclusion they were not satisfied beyond reasonable doubt the applicant "... had in fact himself not appreciated that [the complainant] was not consenting to the conduct." That, of course, is not the test - what s 24 requires is an actual honest and reasonable belief that she was consenting. Nonetheless, despite the way Mr Cock expressed it, I understood his submission to be that the jury could have thought it reasonably possible the applicant did have such an actual belief.
158 There was a further way in which the respondent argued the evidence as to the events on 30 January and 3 February were to be distinguished and that was the way in which they came about.
159 It was common ground that the complainant and the applicant met at Gooseberry Hill on 30 January by mutual agreement and that she went there for the purpose of meeting him. She offered to get him another beer from the hotel and drove to the hotel for that purpose. She bought two cans of beer and gave them to him at the hotel. He got into his car and drove off and she followed in hers. She voluntarily followed him to an isolated and dimly lit location where she got out of her car and sexual activity occurred.
160 The respondent submits that by contrast, the complainant's account of how the events of 3 February began was quite different. It was that whilst she was driving to see a relative the applicant contacted her on her mobile phone. She then found he was driving behind her. He then overtook her vehicle, told her to pull over and (as senior counsel described it) "effectively forced her to the side of the road". When she did pull over, he made her get out of her car and get into his and then drove her to the cemetery, leaving her car at the side of the road.
161 The respondent submits that a further distinguishing feature of the Guildford counts, is the urination which occurred. Notwithstanding the fact the complainant claimed there were two occasions on which the applicant urinated on her as part of the sexual activity in the course of this incident, the evidence on any view was there was at least one such occasion. The applicant's evidence was that he did so, but only once.
162 The starting point I think, is that the learned trial Judge made it patently clear to the jury that they could not return a verdict of guilty on any count unless they accepted the complainant's evidence. They could not have returned the verdicts they did on any different understanding.
163 In Jones it was necessarily the case that if the jury did not believe the complainant (or was left with a reasonable doubt about the truthfulness of her account) in respect of one count, the verdicts on the other two counts, which had nothing to distinguish them, did represent an affront to logic and commonsense or suggested a compromise of the jury's duty. There was a logical conflict which could not otherwise be explained. The circumstances in Garrett v R (1988) 50 SASR 392 were similar and convictions were quashed for the same reasons. I am not persuaded that was the situation here. In my view it cannot be said the outcome in respect of the separate incidents turned entirely on the quality of the complainant's evidence. There was a rational basis for the applicant's acquittal on the Gooseberry Hill counts which did not turn on the complainant's credibility. The different verdicts are logically and reasonably explicable if the jury were left with a reasonable doubt on the evidence that the applicant may have had an honest and reasonable, but mistaken belief the complainant was consenting to what occurred at Gooseberry Hill. Despite Mr Shirrefs' forceful submissions, I consider the factors advanced by Mr Cock may well have weighed with the jury. The learned trial Judge properly left that defence to the jury and it was open to them to act upon it. That being so, grounds 3 and 12 (to the extent it relies upon inconsistency of verdicts) have not been made out.
164 Senior counsel for the applicant dealt with grounds 1 and 10 together and I shall do the same. Although ground 1 specifically refers to the direction which the applicant contends should have been given as a Longman direction, senior counsel for the applicant was at some pains to describe it rather as a general warning "of the type" referred to in Longman.
165 The point encapsulated in these grounds was that the learned trial Judge should have given the jury a general warning that the prosecution case depended entirely upon acceptance of the complainant's evidence and they should scrutinise it carefully in light of specific features of the case. It was submitted the significant circumstances which called for such a warning included the absence of any evidence of complaint in respect of the Guildford counts, the fact that the applicant and complainant had lived together in a de facto relationship for 15 years and continued to have a sexual relationship thereafter, the contents of the emails and letters sent by the complainant to Glover, the video of 22 December 2001, that the complainant was the subject of applications for restraining orders by Glover and the applicant at the relevant time and the evidence of Wight, the security officer, that the complainant said to him "we're only making out ...".
166 In Longman there had been a delay of more than 20 years between the alleged sexual offences and the complaint. The High Court held that although s 36BE of the Evidence Act 1906 (WA) had abolished the rule requiring a trial Judge to warn a jury of the danger of convicting an accused on the uncorroborated testimony of a complainant in a sexual case (which section has now been replaced by s 50 of the Evidence Act), that had not affected the obligation to give a warning about perceptible risks of miscarriage of justice in the particular case. As Brennan, Dawson and Toohey JJ expressed it (at 87):
"A warning may be required because of the circumstances of the case other than, albeit in conjunction with, the sexual character of the issues which the alleged victim's evidence is tendered to prove."
167 Their Honours explained (at 89) that if a trial Judge refuses to give a warning required by a rule of law or practice other than that referred to in the section, the refusal is reviewable on appeal and the conviction is liable to be quashed as unsafe and unsatisfactory if it be concluded that the refusal to warn left a perceptible risk of miscarriage of justice.
168 Their Honours thought "it would not have been surprising" if the several significant circumstances of the case had elicited some comment from the trial Judge. These they identified as the delay in prosecution, the nature of the allegations, the age of the complainant at the time of the events alleged, the alleged awakening of a sleeping child by indecent acts and the absence of complaint either to the applicant or to the complainant's mother. But there was one factor which they considered may not have been apparent to the jury and which therefore required not merely a comment, but a warning, be given to them:
"That factor was the applicant's loss of those means of testing the complainant's allegations which would have been open to him had there been no delay in prosecution. Had the allegations been made soon after the alleged event, it would have been possible to explore in detail the alleged circumstances attendant upon its occurrence and perhaps to adduce evidence throwing doubt upon the complainant's story or confirming the applicant's denial. After more than twenty years that opportunity was gone and the applicant's recollection of them could not be adequately tested. The fairness of the trial had necessarily been impaired by the long delay (see Jago v District Court (NSW) Ante, pp 31-32, 42-44, 56-57, 71-72) and it was imperative that a warning be given to the jury. The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice. The jury were told simply to consider the relative credibility of the complainant and the appellant without either a warning or a mention of the factors relevant to the evaluation of the evidence. That was not sufficient." (91)
169 Deane J also recognised (at 95-96) that the need for an appropriate caution or warning was triggered by circumstances in the individual case which give rise to potential dangers in acting upon particular evidence which may not, without such a caution or warning, be appreciated by the jury. Deane J emphasised that the decision of a trial Judge that he or she is not satisfied that a specific warning is justified in the circumstances of the particular case will necessarily involve a significant element of discretionary judgment, observing that a trial Judge's summing up to the jury must be framed to take account of matters of which an appellate court will commonly be ignorant, including the atmosphere of the trial, the impact of cross-examination, the real forensic issues and the content of counsel's addresses. It is not the function of an appellate court subsequently to substitute its own views about whether such a warning was justified in all the circumstances of the particular case. The essential function of an appellate court is to intervene where that is necessary to prevent possible miscarriage of justice. Where the complaint is the absence of a warning of the risk inherent in the evidence in the particular case, the ultimate question for the appellate court is whether in the context of the summing up as a whole, the effect of the absence of a warning of that kind is that there is a real risk that justice has miscarried with the result that the verdict is unsafe and unsatisfactory (at 97).
170 In that case, Deane J thought that although the lapse of more than 20 years between the alleged offences and the complaint would not have sufficed of itself to produce the consequence either that it was not open to the learned trial Judge to fail to be satisfied that a warning was justified or that the verdict was unsafe and unsatisfactory in the absence of such a warning, it did so in the context of the nature of the specific offences alleged. They were instances of the sexual touching by the appellant of a 6 year old girl who was half asleep at the time. His Honour concluded there was a real risk that:
"... in the absence of any specific warning about the need to scrutinize the complainant's evidence with great care and caution before convicting the applicant on the basis of it alone, the jury may have seen the case merely in terms of whether they were satisfied beyond reasonable doubt that the complainant was a truthful witness and that the applicant was not and thereby failed to give proper consideration to the question whether, notwithstanding that the complainant was a truthful witness in the sense that she believed what she said, her evidence provided an inadequate foundation for a finding that the applicant's guilt of the two alleged offences had been proved beyond reasonable doubt. ..." (at 102)
171 In the context of sexual cases, McHugh J (at 107) saw the duty of a trial Judge in this regard to make the jury aware of the dangers concerning a complainant's evidence, as arising where the evidence discloses any circumstance which suggests that person's evidence may be unreliable. The terms of the warning will depend upon the particular circumstances of the case.
"No matter how honest the recollection of the complainant in this case, the long period of delay between her formal complaint and the occurrence of the alleged events raised a significant question as to whether her recollection could be acted upon safely. The likelihood of error was increased by the circumstances in which the complainant said the incidents occurred. The opportunity for error in recalling, twenty years later, two incidents of childhood which are alleged to have occurred as the complainant awoke, and then pretended to be asleep, are obvious. ..."
"To the potential for error inherent in the complainant's evidence must be added the total lack of opportunity for the defence to explore the surrounding circumstances of each alleged offence. By reason of the delay, the absence of any timely complaint, and the lack of specification as to the dates of the alleged offences, the defence was unable to examine the surrounding circumstances to ascertain whether they contradicted or were inconsistent with the complainant's testimony.
Accordingly, the present case was one where the requirement of a fair trial required a strong warning to the jury of the potential for error in the complainant's testimony. The jury should have been warned that, in evaluating her evidence, they had to bear in mind that it was uncorroborated, that over twenty years had elapsed since the last of the alleged offences occurred, that experience has shown that human recollection, and particularly the recollection of events occurring in childhood, is frequently erroneous and liable to distortion by reason of various factors, that the likelihood of error increases with delay, that the complainant had testified concerning incidents occurring to her as a young child after she had awoken and pretended to be asleep, that no complaint was made to her mother, and that, by reason of the delay and lack of specificity as to the dates, the defence was unable to examine the circumstances of the alleged offences. To what extent these matters needed elaboration or a consequential warning that it would be unsafe to convict on such uncorroborated evidence was very much a matter for the trial judge."
174 Crampton v R (2000) 206 CLR 161 was a case which also involved a delay of some 20 years. In their joint judgment, Gaudron, Gummow and Callinan JJ emphasised (at [45]) the critical feature which called for a firm judicial direction was the loss thereby to the applicant, of the ability to adequately test and meet the complainant's evidence, that is to say, the denial of the forensic weapons that reasonable contemporaneity provides.
175 In Doggett v R (2001) 208 CLR 343 there was a delay of more than 10 years. Again, the High Court emphasised that a Longman direction is required to deal not only with the problem of difficulties of recollection an accused may suffer because of the effluxion of time, but the denial to the accused for that reason, of the forensic weapons that a timely complaint might allow (see in particular Gaudron and Callinan JJ at [51]).
176 In Christophers v R [2000] WASCA 308; (2000) 23 WAR 106 Owen J, with whom Pidgeon and Ipp JJ agreed, said (at [37]):
"In my view a number of propositions can be extracted from the judgments in Longman and the discussion about Longman in other cases:
1. The 'Longman direction' is a rule of practice that applies notwithstanding the enactment of s 36BE (now s 50) of the Evidence Act 1906.
2. It is not a conventional corroboration warning.
3. It is borne out of the circumstances of the particular case and not from some general appreciation of the position of particular classes of witnesses or classes of offences.
4. It arises because of the overriding obligation of a trial judge to ensure that there is a fair trial and avoid a perceptible risk of miscarriage of justice occurring, again because of the circumstances of the particular case.
5. The warning is concerned both with the reliability and the veracity of the testimony given by the witness.
6. There is no prescribed or ritualistic formulation in which the warning is to be delivered: see James v The Queen [2000] WASCA 100 at [23]. It must be tailored to the features of the case that have dictated that it be given. This is not surprising given that it arises from the circumstances of the particular case.
7. It is important that the trial judge point out to the jury the particular features of the evidence that might have an impact on the reliability of the impugned testimony and the difficulties that this has, or may have, caused for the presentation of the defence.
8. Although the word 'dangerous' is used from time to time in the judgments in Longman, the adequacy of the warning in any particular case is not necessarily sensitive to whether that phrase was uttered: Gaulard v The Queen [2000] WASCA 218 at [14]. What must be brought home to the jury is that they need to be 'persuaded of the truth and accuracy of the evidence before they may place reliance on it': see James at [22]. In this context, 'truth and accuracy' equates to reliability."
177 Longman and other authorities were examined in some detail by the New South Wales Court of Criminal Appeal in R v BWT [2002] NSWCCA 60; (2002) 54 NSWLR 241, which concluded that in any criminal trial of sexual offences in which substantial delay in the making of a complaint is a feature, a Longman direction must be given and must specifically be cast in the form of a judicial warning that, because of the passage of time:
(i) the evidence of the complainant cannot be adequately tested;
(ii) it would therefore be dangerous to convict on that evidence alone;
(iii) although the jury would nonetheless be entitled to do so if satisfied the complainant's evidence was truthful and adequate;
(iv) having first scrutinised the evidence with great care;
(v) and taking into careful account any circumstances which are peculiar to the particular case and which have a logical bearing upon the truth and accuracy of the complainant's evidence; and
(vi) applying the warning of the dangers of conviction to each stage of that scrutiny.
The other two propositions distilled by Sully J were that the direction must be given as an authoritative warning based on the accumulated experience of the courts, not merely upon ordinary commonsense and that the initial trigger for a Longman direction is the passage of time between the alleged offence and the first complaint.
178 The reasoning in BWT was considered in my judgment (with which Malcolm CJ and McKechnie J agreed) in Allegretta v R [2003] WASCA 17. In that case the delay between the alleged sexual assaults and the complaint was somewhat more than five years.
179 What I there said was referred to by this Court in Crisafio v R [2003] WASCA 104; (2003) 27 WAR 169. There, Malcolm CJ said of Allegretta and Christophers (at 170):
"In my opinion, this application for leave to appeal against conviction should be refused. I have reached that conclusion for the reasons to be published by Murray J. In my opinion, it was unfortunate that the decision of this Court in Christophers v The Queen [2000] WASCA 308; (2000) 23 WAR 106 was not referred to in the recent decision of this Court in Allegretta v The Queen [2003] WASCA 17. In my opinion, the summary of the relevant law by Owen J in Christophers (at [37]) set out in eight propositions is an accurate statement of the law. In particular, I agree with Owen J that, although the word 'dangerous' is used from time to time in the judgments in Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79, the adequacy of the warning is not necessarily dependent on the use of that particular expression or any similar expression. What must be made clear is that in such a case, the jury should not rely on the evidence of the complainant alone to convict unless they are persuaded beyond reasonable doubt of its truth and accuracy. In this context, 'truth and accuracy' is equated with reliability."
180 On the same point, Murray J (with whom Malcolm CJ and Parker J agreed) said (at [30]-[31]):
"Roberts-Smith J referred particularly to the fact that the applicant relied on R v BWT [2002] NSWCCA 60; (2002) 54 NSWLR 241, a decision of the Court of Criminal Appeal of New South Wales. His Honour recounted at some length passages from the various judgments in that case, including some bearing upon the content of the warning. His Honour noted the decision of Sully J who analysed the relevant High Court authorities and set out in a number of propositions what, in short form, his Honour thought the law to be. As to those propositions and particularly in respect of their reference to the content of the warning, Roberts-Smith J (at [105]) said that whether or not those propositions were all 'necessarily strictly applicable in the way presented by his Honour' did not fall to be decided in Allegretta. The ratio of that decision, so far as it concerns what may be described as the Longman direction, is that such a direction was required in the instant case and what had been said by the trial judge in that case 'fell significantly short of such a warning'.
The case of Christophers was not referred to by Roberts-Smith J in Allegretta and it does not appear to have been cited to the court. The summary of the law by Owen J in that case is not on all fours with the summary adopted by Sully J in BWT."
181 Malcolm CJ reiterated his above remarks in RBK v R [2004] WASCA 216 at [34], noting in that case that in relation to the Longman ground, the issue was whether the trial Judge was in error in considering there was no perceptible risk of a miscarriage of justice by reason of delay in the particular circumstances of the case. Counsel there for the appellant was unable to point to any forensic disadvantage, conceding that a Longman direction was inappropriate, but suggesting that some "tailored direction" could be given. His Honour concluded (at [36]):
"... the delay between the incidents described and the making of the complaint was approximately two and a half years. There was no suggestion that any relevant evidence had been lost or forgotten due to the lapse of time. Nor was it suggested that [the complainant], who was then 9 or 10 years old, was asleep or half asleep at the relevant times. There was no inherent improbability in [her] account or any obvious or inherent weakness in her evidence. ..."
182 Murray J was of a similar view. Significantly, his Honour noted that in relation to the question whether a warning "in conventional Longman terms" is required, (at [99]):
"The crucial point is that, not only may the accused be at a forensic disadvantage in testing the prosecution case in the form of the complainant's evidence, but that the circumstances may not reveal to the jury that that is the case."
183 He concluded that the incapacity of the circumstances to demonstrate any forensic disadvantage about which the jury would require instruction was fatal to the success of that ground of appeal ([101]).
184 To my mind, although Christophers was not cited to, nor referred to, by the court in Allegretta, there is no conflict between the two cases. As Murray J rightly pointed out in Crisafio in the passage from his Honour's judgment quoted above, the applicant in Allegretta had particularly relied upon the joint judgment of the New South Wales Court of Criminal Appeal in BWT. Notwithstanding that, I expressly stated that whether or not the propositions articulated by Sully J were necessarily strictly applicable in the way presented by his Honour did not fall to be decided in Allegretta. The conclusion that a direction of the Longman type was required in that case was arrived at on the basis of its particular circumstances. That is apparent from the passage at [105] of my judgment:
"The analysis by Sully J of the relevant High Court authorities on this point and his Honour's summary of propositions to be gleaned from them afford useful guidance. Whether or not they are all necessarily strictly applicable in the way presented by his Honour is not, however, a question which falls to be decided in this case. That is because the delay here (in the order of five years) and the circumstances otherwise - including the generalised nature of the uncharged unlawful sexual acts and the lack of corroboration - in my view clearly did call for a Longman direction which warned the jury of the danger of convicting on the complainant's evidence alone not only because of the difficulties of recollection thereby presented to the applicant, but because of the denial to the applicant of the forensic weapons that a reasonably contemporaneous complaint would have provided. What was said in this regard by the learned trial Judge fell significantly short of such a warning."
185 There is no doubt that the propositions set out by Owen J in Christophers and affirmed in Crisafio and RBK state the relevant law in this regard.
186 But there is another feature to be distilled from the authorities. It is that the need for a warning of this kind arises in a case in which the circumstances place the accused at a forensic disadvantage and where the jury might not otherwise appreciate that to be the case.
187 In the present case the relevant delay in respect of the Guildford counts was only 2 months. Mr Shirrefs conceded the applicant was not placed at any forensic disadvantage by reason of that delay. However, he submitted that although in Longman the facts gave rise to forensic disadvantage because of the delay of more than 20 years, the test is not whether the circumstance put the accused at a forensic disadvantage, but rather in all the circumstances a general warning should have been given. He submitted that the relevant circumstances in this case were that the prosecution case depended entirely upon the complainant's uncorroborated evidence; the absence of any evidence of complaint in relation to the Guildford counts; the complainant and applicant had lived together in a de facto relationship for 15 years and continued to have a sexual relationship thereafter; the contents of the letters and emails sent by the complainant to Glover; the content of the video of 22 December 2001; the fact that the complainant was the subject of application for restraining orders by Glover and the applicant at the relevant time and the evidence that the complainant said to the security guard Wight "We're only making out ...".
188 I cannot accept the submission that the test is not whether the circumstances give rise to a forensic disadvantage to the accused. In my opinion the warning of which Longman speaks is one which is to be given when effluxion of time, in combination with the other circumstances of the particular case, puts the accused at a forensic disadvantage in a way, or for reasons, which a jury might not appreciate.
189 That was not the situation here. The case was patently one of oath against oath. The complainant was an adult, speaking in January 2004 of events which had occurred in January and February 2002. The circumstances to which Mr Shirrefs referred were all before the jury and there was nothing about their possible effect on the complainant's credibility or reliability of which the jury would have been unaware without judicial direction. The learned trial Judge drew attention to the fact there was a conflict between the evidence of the complainant and that of the applicant and that it was a case of oath against oath. He directed the jury that to be satisfied of the guilt of the applicant they would have to be satisfied beyond reasonable doubt of the truth of the complainant's evidence. He pointed out that in relation to the Guildford counts there was no recent complaint. His Honour referred to the exhibits indicative of on-going sexual contact between the applicant and the complainant and directed the jury that they would need to consider the evidence suggesting she had a motive to make false allegations against him. He reiterated that before they could convict the accused the jury would have to be satisfied of the truth of the complainant's evidence.
190 In my opinion the learned trial Judge was not in error in holding the circumstances did not call for a direction of a Longman kind, so as to avoid a perceptible risk of miscarriage of justice. These grounds must fail.
191 Mr Shirrefs dealt with grounds 2, 5, 6, 7 and 9 under the rubric of a complaint that the learned trial Judge failed to adequately put the applicant's defence to the jury.
192 The failure of the trial Judge to adequately put the defence to the jury is a well recognised ground of appeal. The defence should be clearly and fully presented to the jury (RPS v R [2000] HCA 3; (2000) 199 CLR 620, 637; R v Schmahl [1965] VicRp 95; [1965] VR 745 per Winneke CJ at 748-9). The summing-up must contain an adequate presentation of the accused's defence such as to enable the jury, from the terms of the summing-up itself, to comprehend and understand what the defence case is (Honeybone v R, unreported; SCt of WA; Library No 950224; 10 May 1995 and R v Veverka [1978] 1 NSWLR 478).
193 However a trial Judge is not bound to comment on all the evidence nor to refer to all of the contentions on which the accused has relied. The adequacy of a summing-up in this regard will depend upon the circumstances of the case (Cleland v R [1982] HCA 67; (1982) 151 CLR 1, 10; Checconi v R (1988) 34 A Crim R 160 (NSW); Van Leeuwen v R (1981) 36 ALR 591). Those circumstances include the conduct of the trial and the content and length of counsel's addresses (Cornelius & Briggs v R (1988) 34 A Crim R 49). That is because the question whether the trial Judge is bound to refer to an evidentiary matter or a specific argument ultimately depends upon whether that is necessary to ensure the jurors have sufficient knowledge and understanding of the evidence and the issues to discharge their duty to determine the case. It is for that reason the conduct of the case and the content of counsels' addresses necessarily bear on the extent to which the trial Judge is bound to comment upon or discuss the evidence (Domican v R [1992] HCA 13; (1992) 173 CLR 555).
194 In Sullivan v R (1913) 15 WALR 23, Burnside J said (at 27-8) that before a conviction will be quashed on the ground the trial Judge has not referred to some specific item of evidence, the Appeal Court would have to be satisfied the omission complained of was such that the jury were thereby misled or that they would not have returned a verdict of guilty if their attention had been particularly directed to the portions of the evidence not referred to. With respect, I would have thought that in light of more recent authority, including Longman, the relevant question would rather be whether there was a reasonable possibility the jury was misled in a significant way or that they "might not" have returned a verdict of guilty had their attention been directed by the trial Judge to the matters raised - that is to say, whether there was a real risk that the trial Judge's omission had resulted in a miscarriage of justice.
195 The first complaint under this ground is that the learned trial Judge not only failed to point out to the jury that the applicant denied the conduct that was the subject of counts 1, 2, 11, 12, 13 and 22 but told them the applicant admitted that conduct, saying that it was consensual. The second complaint is that his Honour failed to remind the jury that the complainant's credibility was central to the prosecution case and to identify the matters relied upon by the defence as undermining her credibility and revealing a motive to make false allegations of sexual assault.
196 Given that the jury returned verdicts of not guilty on all the Gooseberry Hill counts and verdicts of guilty on all the Guildford counts, the fact that the applicant was acquitted on counts 1, 2 and 11 does not affect the consideration of these grounds.
197 The learned trial Judge approached the task of directing the jury on the evidence and what was being put by the prosecution and defence, by summarising the points counsel had made in their addresses. He indicated he would be brief because both counsel had addressed the jury at length and from hearing the evidence they were reasonably familiar with what the case was about anyway.
198 Referring to the applicant's counsel's address, his Honour said (AB 477) that counsel had referred to the video-tape in which the complainant had talked of the previous Thursday night in a way which indicated a continuing sexual relationship with the applicant, which counsel suggested was important when looking at her credit. His Honour then continued:
"He then discussed with you various exhibits and made certain points in relation to those. In summary, in relation to the events of 30 January, he said there was obviously a long time - her evidence, met 8.45; it's after 1 am when the security man arrives, so it's a very long time - could he have kept her that long doing things to which she wasn't consenting? On 3 February they met at Fleming Reserve. There is a long trip in which she is followed and you've got a video in relation to that. He made reference to Mr Wight's evidence, that is, that he didn't see anything out of the ordinary, that she used the words to him 'making out'. Constable Lawson's evidence that [the complainant] - she said in evidence she didn't know these areas but she was the one who was able to draw it all on the map.
Ms O'Rourke's - the medical evidence, which he says is basically consistent with consensual sexual intercourse on that night. He referred you to Mr Webb's evidence and asked you to look at the exhibits in relation to clothing and other matters. ...
... He made reference to Dr Phillips's (sic) evidence of what was said to her as part of the introduction by [the complainant] indicating the matters that she would be looking at. He pointed out various inconsistencies in that with the evidence that she gave. He suggested to you that the medical evidence is not consistent with her being rammed into the fence. He referred to other exhibits, 15 to 22, in relation to ongoing contact.
He refers to Mr Carroll's evidence and says that he is consistent and believable; his evidence is consistent with the emails. He related the events of 6 February when Mr Carroll said they had sex again, and 11 February when she threatened him, and he says that a motive for her acting in that way that she has, and you will need to consider that aspect of the matter. So in summary, Mr Carroll's case is that these matters that occurred on 30 January and 3 February were consensual, part of an ongoing sexual relationship between the parties.
So that's a summary of the evidence. ..."
199 That was the full extent of what his Honour said about the evidence. In his redirections, given after hearing from counsel, his Honour pointed out that the jury would not have the video of 22 December 2001 with them in the jury room as it was only marked for identification. He also reminded them counsel had talked about the complainant's motive and added (AB 491):
"... his submission was that you should look at the evidence of Ms Linda Lee in relation to that to see where the motivation for these allegations have come to point (sic)."
200 He then dealt with the aspect of delay in complaining and specifically said that the complainant's reason for not reporting the alleged assaults immediately after they occurred on 30 January, namely concern for her children, applied only to the Gooseberry Hill counts, that she said nothing to the police about the Guildford counts until sometime after 3 April and that no reason had been given for that delay.
201 The applicant makes a number of complaints about his Honour's directions. The first point was that counsel:
"... discussed with you various exhibits and made certain points in relation to those."
The reference to "exhibits" was corrected in redirection but, as Mr Shirrefs submitted, that direction generally was so vague as to be entirely unhelpful. I agree that was required as a reminder of what was to be seen and heard on the tapes and how that material bore upon the credibility of the complainant.
202 The next point made was that in relation to the events of 30 January, counsel for the applicant had said there was obviously a long time (from 8.45 pm to after 1 am) until the security officer arrived and the question raised by counsel was whether the applicant could have kept the complainant there for that time doing things to which she was not consenting. However, the reference to which incident that was , was incorrect. Those matters were put in relation to the second incident, that on 3 February. His Honour's error was in relating them to the events of 30 January. Neither counsel raised this after his Honour's directions, so it was clearly not an error which they noticed at the time. Given the quite different circumstances of the events on those two days and the fact that the jury had just heard full addresses from counsel, I do not consider the jury would have been misled by his Honour's incorrect reference to the date.
203 The learned trial Judge next turned to what counsel had said about 3 February, telling the jury the applicant and complainant had met at Fleming Reserve. Again, that was an error, because that fact was in dispute. That was what the applicant had said; the complainant had denied it. Her evidence was that the applicant had forced her to stop by the side of the road. Although what his Honour said was potentially confusing, the error was not one which could have worked to the disadvantage of the applicant.
204 Other aspects of his Honour's directions were said to have been confusing or inadequate, but the next major complaint was about his Honour's concluding direction that (AB 477-478):
"So in summary, Mr Carroll's case is that these matters that occurred on 30 January and 3 February were consensual parts of an ongoing sexual relationship between the parties"
and his comment immediately then following, that if they accepted:
"these matters were all part of a consensual sexual relationship on these two occasions ..."
205 Overall, it was contended on behalf of the applicant that his Honour gave only the briefest summing-up in relation to the evidence, made specific errors that could only have confused the jury and failed to point to the evidence which went to the specific issues calling for determination by them, particularly those going to the critical issue of the motive and credibility of the complainant.
206 There is on the face of it, considerable force in these submissions. Clearly his Honour could have been both more specific and more comprehensive in his directions upon the evidence as it bore upon the issues in the case. It would have been, in my view, highly desirable for the directions to have been fuller and more focused in that regard. But I have not been persuaded that these deficiencies were of such significance as to lead to the conclusion that there was a miscarriage of justice.
207 I have been particularly troubled by his Honour's failure to point out to the jury the applicant's evidence was that the sexual conduct in counts 12, 13 and 22 had not occurred at all. However, his Honour did tell them that they had to consider each count, that before they could find the applicant guilty they had to satisfy themselves on the evidence that each had been established beyond reasonable doubt and that the first element of which they had to be so satisfied was that there was an assault, namely a touching or the application of force by the applicant, without the complainant's consent. He also directed them that each time they were dealing with a count alleging an indecent assault, they would need to be satisfied beyond reasonable doubt first that the applicant assaulted the complainant, secondly that the assault was indecent and thirdly, that it was unlawful.
208 The jury could have been left with no impression other than that they could not convict on any count alleging a sexual assault (which each of these counts did) unless first satisfied beyond reasonable doubt there was sexual conduct of the nature alleged, without the complainant's consent. Neither counsel at trial raised this as a matter requiring redirection by his Honour. If it was not something which registered with counsel as likely to mislead the jury in the context of the evidence, counsel's own addresses and the directions of his Honour to which I have just referred, I do not think it has been shown to have been an error which had any real potential to mislead the jury.
209 In my view these grounds have not been made out.
210 As senior counsel for the applicant explained, grounds 7 and 12 simply amount to a claim that the matters contained in the other grounds, even if not sufficient individually, have in combination resulted in verdicts which are unreasonable or cannot be supported by the evidence.
211 In light of my reasons already expressed, these grounds must fail.
Carroll
The State of Western Australia [2004] WASCA 254
(1954) 91 CLR 628
(2000) 206 CLR 161
(1988) 50 SASR 392
(1997) 191 CLR 439
(1996) 190 CLR 348
(2002) 54 NSWLR 241
(2000) 199 CLR 620
(1986) 161 CLR 158
(1998) 194 CLR 610
(1990) 54 SASR 17
(1990) 19 NSWLR 91
(1973) 47 ALJR 603
(2000) 23 WAR 106
(1982) 151 CLR 1
(2003) 27 WAR 169
(1992) 173 CLR 555
(2001) 208 CLR 343
(1998) 194 CLR 106
(1989) 168 CLR 79
(1989) 169 CLR 79
(1994) 181 CLR 487
(2002) 213 CLR 606
(1987) 44 SASR 591
(1990) 171 CLR 312
(1981) 36 ALR 591
(1986) 161 CLR 315
(1936) 56 CLR 580