Criminal law - Appeal against conviction - Appellant convicted after a trial on two counts of unlawful and indecent assault and four counts of sexual penetration without consent - Trial before a judge alone - Whether trial judge erred in concluding that there was no evidentiary basis for the operation of s 24 of the _Criminal Code_ (WA) - Whether the trial judge erred in failing to direct himself about any delay in making complaint in accordance with a direction of the kind referred to in **_Crofts v The Queen_** - [2011] WASCA 160 - WASCA 2011 case summary

Criminal law - Appeal against conviction - Appellant convicted after a trial on two counts of unlawful and indecent assault and four counts of sexual penetration without consent - Trial before a judge alone - Whether trial judge erred in concluding that there was no evidentiary basis for the operation of s 24 of the _Criminal Code_ (WA) - Whether the trial judge erred in failing to direct himself about any delay in making complaint in accordance with a direction of the kind referred to in **_Crofts v The Queen_** - [2011] WASCA 160 - WASCA 2011 case summary — Zoe

[42]

[Mr Webb] gave evidence of having received certain items said to have been taken from the complainant including a pair of underpants, a pair of shorts, a jacket and a collection of swabs and smears forwarded from the Sexual Assault Resource Centre being a glans penis swab and smear, a penile shaft swab and smear, a urethra swab and smear, two rectal swabs and a smear, two anal swabs and a smear, two peri-anal swabs and a smear, an oral swab and smear and an oral rinse sample. He concluded that spermatozoa were detected in the smears, when examined microscopically, from the oral rinse, the penis glans, the rectal, anal and peri-anal smears. Spermatozoa were not detected in the oral swab and the smears from the penile shaft and urethra. The swabs from the penile shaft and urethra gave positive reactions when tested with a presumptive chemical test for semen. The oral swab gave a negative reaction when tested with a presumptive chemical test for semen. The anal and peri-anal swabs gave positive reactions when tested with a confirmatory test for human saliva.

The oral rinse, rectal, anal and peri-anal swabs were submitted separately for DNA analysis. No DNA profile was recovered from the sperm cell fraction of the oral rinse. A partial male DNA profile recovered from the epithelial cell fraction did not match [the appellant's] reference DNA profile.

So far as the rectal swab was concerned, a DNA profile recovered from the sperm cell fraction matched [the appellant's] reference DNA profile. A mixed DNA profile consistent with a mixture of DNA from at least two individuals was recovered from the epithelial cell fraction. That mixed profile could be separated into major and minor components. The partial major component DNA profile recovered matched [the appellant's] reference DNA profile.

As to the anal swab, the partial DNA profile recovered from the sperm cell fraction matched [the appellant's] reference DNA profile. No DNA profile was recovered from the epithelial cell fraction.

As to the peri-anal swab, the DNA profile recovered from the sperm cell fraction matched [the appellant's] reference DNA profile. A DNA profile was not recovered from the epithelial cell fraction.

The underpants, shorts and jacket were not examined. Importantly, Pathwest was not provided with a reference buccal sample from the complainant.

In evidence Mr Webb confirmed that all DNA profiles recovered from sperm cell fractions were consistent with [the appellant's] recorded DNA profile [85] - [91].

[57]

Returning to the elements to be proven by the State beyond reasonable doubt, so far as counts 2, 4, 5 and 6 are concerned, each being a count of alleged sexual penetration, I am satisfied beyond reasonable doubt that there was sexual penetration in the manner alleged. I arrive at that conclusion, in each case, based primarily upon the evidence of the complainant supported to some degree by the forensic biology findings. In being so satisfied, I am aware, as mentioned earlier, that the complainant, in his evidence-in-chief, described sexual activity not complained of in the indictment. To the extent that there were 'uncharged acts' I have been careful to regard those acts as being part of the complainant's narrative of events on the night in question. I am generally accepting of the truthfulness and reliability of the complainant as to the events of the night in question and to the extent that those acts did, in fact, occur, I have not regarded them as being proof of any of the individual acts complained of in the indictment.

So far as the element of consent in counts 2, 4, 5 and 6 is concerned I must rely, again principally, upon the evidence of the complainant supported, to some degree, by Professor Joyce's evidence as to the impact of the alcohol and drugs ingested on the night in question in combination with his personal state at that time. Consent must be freely and voluntarily given. It is not freely and voluntarily given if it is obtained by force, threat or intimidation. I am satisfied beyond reasonable doubt that [the appellant] did, having invited the complainant back to his campervan and provided him with some comfort, alcohol and drugs, behave in a threatening or intimidating manner in order to force compliance with his demand for sex. The bringing of the complainant to the campervan in the caravan park in Queens Park was not an act of altruism on the part of [the appellant] but rather an exercise in taking opportunistic advantage of a homeless man whose circumstances rendered him prone.

There were, as mentioned, inconsistencies as between the complainant's evidence during the trial and earlier statements and information provided to others. Counsel for [the appellant], in his closing speech, detailed those which, in his submission, rendered the complainant's evidence incredible or unreliable or both. It is the case, however, as outlined by Ms Whitbread for the State in her closing speech, that there were many consistencies in the account given by the complainant in his evidence when compared with what he had said to others in earlier statements or information provided and with the information provided progressively by [the appellant] himself to police officers on 9 June 2009. As earlier mentioned, the conduct of the complainant in making complaint as he did, having regard to his personal circumstances at that time, demonstrates, in my view, an important consistency of conduct. I am satisfied beyond reasonable doubt that the acts complained of in each count were without his consent.

As to counts 1 and 3 I am satisfied beyond reasonable doubt that [the appellant], in each case, assaulted the complainant in the manner particularised, and that his assault, in each case, was both unlawful and indecent [119] - [122]. (emphasis added)

[80]

The only defence that might emerge in such circumstances is that arising from s 24 of the Criminal Code which provides that a person who does an act under an honest and reasonable but mistaken belief in the existence of any state of things is not criminally responsible for the act to any greater extent [than] if the real state of things had been such as he believed to exist. In a case such as this if there was evidence of a belief on [the] part of [the appellant] that the complainant was consenting to sexual penetration of him when, in truth he was mistaken as to that belief the State, there having been an evidentiary foundation laid giving rise to the operation of s 24, would have to satisfy me beyond reasonable doubt that the accused person did not hold such belief or, if he did, that it was not a belief honestly and reasonably held in all the circumstances.

In this matter the final contention of the defence, as evidenced by [the appellant's] out-of-court statement to a police officer after the conclusion of his video-taped interview, was that he and the complainant engaged in sexual activity on at least two occasions in circumstances where the complainant told him that he was gay, that he offered sex to get by on the streets and that [the appellant] gave him $30 to $50, some food and clothing but not in consideration for the sex that took place.

Cross-examination of the complainant involved putting a proposition to him to the effect that following sexual advances by the complainant to [the appellant], [the appellant] obliged by attempting, unsuccessfully, anal intercourse in the form of attempted penetration of the complainant's anus with his penis. The latter proposition seems at odds with the explanation advanced to the police officer and recorded only in the running sheet following the conclusion of the formal interview. [The appellant] elected not to give evidence. There is, having regard to all the circumstances, no evidentiary basis for the operation of s 24 of the Criminal Code. It is, therefore, not a matter to be disproved by the State. In reaching that conclusion I do so cognisant that [the appellant] carries no burden of proof. What I must consider are matters to be proved or disproved by the State beyond reasonable doubt. I conclude that the State need not, in this case, prove beyond reasonable doubt that [the appellant] was not relieved of criminal responsibility by the operation of s 24 of the Criminal Code [98] - [100]. (emphasis added)

[112]

The purpose [of s 61] was not to convert complainants in sexual misconduct cases into an especially trustworthy class of witnesses (Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79 at 86 - 87). It was simply to correct what had previously been standard practice by which, based on supposed 'human experience' and the 'experience of courts', judges were required to instruct juries that complainants of sexual misconduct were specially suspect, those complained against specially vulnerable and delay in complaining invariably critical. In restoring the balance, the intention of the legislature was not to 'sterilise' complainants from critical comment where the particular facts of the case, and the justice of the circumstances, suggested that the judge should put such comments before the jury for their consideration (Longman at 86, citing R v Pahuja (1987) 49 SASR 191 at 199, per King CJ; R v Miletic (unreported; Supreme Court of Victoria (Court of Appeal); 9 August 1996) at 20). The overriding duty of the trial judge remains to ensure that the accused secures a fair trial (cf M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 515, per Gaudron J). It would require much clearer language than appears in s 61 of the Act to oblige a judge, in a case otherwise calling for comment, to refrain from drawing to the notice of the jury aspects of the facts of the case which, on ordinary human experience, would be material to the evaluation of those facts (Longman at 86).

...

Two qualifications to the duty to provide the warning suggested by Kilby may be accepted. The first is where the peculiar facts of the case and the conduct of the trial do not suggest the need for a warning to restore a balance of fairness (R v Murray (1987) 11 NSWLR 12 at 18; M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 514 - 515). The second is that the warning should not be expressed in such terms as to undermine the purpose of the amending Act by suggesting a stereotyped view that complainants in sexual assault cases are unreliable or that delay in making a complaint about an alleged sexual offence is invariably a sign that the complainant's evidence is false (451).

At a glance

Court

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Before

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Source

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Judgment (140 paragraphs)

NARKLE -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 160 (26 July 2011)

Parties

Cases Cited (11)