Cusack v Regina [2009] NSWCCA 155 | Case summary

Cusack v Regina [2009] NSWCCA 155 | Case summary | Zoe

[14]

Notwithstanding that discrepancies in the evidence are matters for the jury to assess, an accumulation of inconsistent and unsatisfactory evidence can serve to undermine a Crown case. The question is whether that point is reached in a particular case so that the verdict or verdicts are unsafe and unsatisfactory: [89]. In this case, the jury were correctly directed as to the matters they were to take into account in assessing their verdict and the Crown case was strong: [96]. M v R [1994] HCA 63; (1994) 181 CLR 487 (applied) R v Markulevski [2001] NSWCCA 290; (2001) 125 A Crim R 186 (cited) MFA v R [2002] HCA 53; (2002) 213 CLR 606 (cited) 3. In a sexual assault case, a trial judge is required to give a clear direction on the onus of proof where a comment by counsel has the effect of reversing the onus of proof and putting an accused in the position where, unless he or she can disprove the complainant's evidence, the complainant's evidence should be accepted: [107] Palmer v R [1998] HCA 2; (1998) 193 CLR 1 (cited) R v E (1996) 39 NSWLR 450 (applied) R v Uhrig (Court of Criminal Appeal, 24 October 1996, unreported) (applied) Doe v R [2008] NSWCCA 203 (applied) 4. In a sexual assault case, whether a question by the Crown amounts to an invitation to the jury to accept the complainant's evidence unless the accused can provide a positive answer to the question has to be considered in the context of the trial itself and the manner in which it was treated by the trial judge: [108]-[109]. In this case, the question did not have the effect of asking the jury to accept the complainant's evidence unless the appellant provided a positive answer to the rhetorical question posed by the Crown. Rather, it had the effect of providing the jury with a suggested tool or a method by which they could assess the complainant's evidence: [112]. Palmer v R [1998] HCA 2; (1998) 193 CLR 1 (cited) R v E (1996) 39 NSWLR 450 (applied) R v Uhrig (Court of Criminal Appeal, 24 October 1996, unreported) (applied) Doe v R [2008] NSWCCA 203 (applied) IN THE COURT OF CRIMINAL APPEAL 2006/5175

[21]

ground 5: the Crown's closing address and summary of the trial was unfair to the appellant and placed the onus of proof on the appellant. 5 The offences occurred between June and September 2004, when the complainant resided with her mother and her mother's male cousin, in a house shared with the appellant and his family. The layout of the house was such that the complainant, her mother and her mother's cousin lived at one end of the house and the appellant and his family at the other. Access to either side of the house could be gained internally, through a common hallway. The complainant was aged between 14 and 15 at the time of the offences. Evidence was given in the Crown case by two of the complainant's friends, the complainant's mother and one of the complainant's cousins, which was admitted as complaint evidence pursuant to the Evidence Act 1995, s 66. The appellant gave evidence in which he denied any sexual contact with the complainant at all. His evidence was supported, to a limited extent, by evidence from his de facto wife. 6 The nine counts for which the appellant was convicted were numbered to reflect the chronological order in which they took place. 7 Count 1 concerned an incident in which the appellant placed his hands under the complainant's shirt and touched her breasts. The complainant had been alone in her bedroom watching television when the appellant knocked on her door and asked her if she wanted to watch a video with him. The appellant then tried to touch the complainant on her breast. The complainant pushed his hand away three times but he persisted and eventually touched her breasts (Crown's Summary 2; Appeal book 23, 59, 588). 8 The event the subject of count 2 was an attempt by the appellant to receive fellatio from the complainant. The appellant gave the complainant a cigarette and then asked her if she would give him a "head job". The complainant refused and the appellant then grabbed her hand and placed it on his penis, which he had removed from his pants. He then placed his penis in the complainant's mouth and told her to suck it. The complainant began giving the appellant fellatio but stopped because she did not like it. (Crown's Summary 2-3; Appeal book 24, 59, 292, 588;) 9 Count 3 took place after the appellant, the appellant's de facto wife, the complainant and the complainant's mother had played a game of Monopoly. When both the appellant's de facto wife and the complainant's mother were no longer in the game and were out of the room, the appellant asked the complainant to fellate him. The complainant then fellated the appellant and the appellant ejaculated in the complainant's mouth. (Crown's Summary 3; Appeal book page 25, 60, 293, 588) 10 The events that made up count 4 involved the appellant touching the complainant on her "lower area" and touching her vagina on the outside of her pants. (Crown's Summary 3; Appeal book 25, 60, 61, 293, 588) 11 The events of count 5 occurred on the same night as the events of count 4 and immediately after those events. The appellant told the complainant to turn around and bend down, and following some discussion between the complainant and the appellant, the appellant placed his penis in the complainant's vagina. The complainant then said "no" and the appellant stopped. (Crown's Summary 3-4, Appeal book 26, 60, 62, 293, 588) 12 Count 6 was an occasion on which the complainant masturbated the appellant. The occasion took place after the appellant and the complainant had watched the DVD "Lord of the Rings" with the appellant's de facto wife. The appellant's de facto wife had fallen asleep half way during the movie and gone to bed when the appellant asked the complainant if she would do anything with him that night. The complainant answered that she would not and the appellant then asked her "Well at least can you touch it?" The complainant did not respond and the appellant pulled her to his chair where he exposed his penis and the complainant masturbated him. (Crown's Summary 4, Appeal book 27, 62, 293-294, 588) 13 Count 7 took place after the appellant had driven the complainant home from her shift at Hungry Jacks. Whilst in the car, the appellant asked the complainant to fellate him. The complainant did not respond and the appellant eventually pulled the car over behind bushes. He and the complainant got out of the car. The appellant then placed a blanket on the ground, touched the complainant's breasts and told her to lie on the ground. He placed his penis in the complainant's vagina and had intercourse with her. (Crown's Summary 4-5; Appeal Book 27, 63, 294, 588-589) 14 The occasion the subject of count 8 involved the complainant giving the appellant fellatio when her friend PK was staying with her at the house shared by her family and the appellant's family. The appellant ejaculated in the complainant's mouth and the complainant spat the appellant's semen out. Prior to the incident, PK, the complainant and the appellant had been playing the appellant's X-Box in his lounge room. (Appeal book 28, 41, 64, 295-6, 597-598) 15 The final count for which the appellant was convicted was count 9, which involved the appellant rubbing the complainant's chest on the outside of her clothing in his lounge room on the same night as the events the subject of count 8. (Crown's Summary 5; Appeal book 28, 42, 295-6, 587, 603) 16 It will be convenient to deal with grounds 4 and 6 first. Those grounds were argued together.

[30]

First contention: differences in versions given by the complainant in various police interviews 19 The appellant asserts that the complaint of sexual contact that the complainant first gave to police differed significantly from her subsequent accounts. 20 The complainant was interviewed by the police on four occasions. The first occasion was on 11 October 2004, when she was interviewed by a female police officer, Senior Constable Boulton. Following that interview, Senior Constable Boulton made a statement dated 24 November 2004, in respect of the complainant's allegations. The second occasion was on 15 October 2004, when the complainant participated in an Electronically Recorded Interview (the first ERISP) at her home. The third occasion was on 16 February 2005, when the complainant again participated in an ERISP (the second ERISP) at the Tweed Heads Police Station. The fourth occasion was on 26 May 2005, when the complainant participated in another ERISP with Constable Pace (the third ERISP) (Appeal book 154). 21 Senior Constable Boulton's statement was tendered in evidence at the trial. She was not required for cross-examination. The three ERISPs were also tendered in evidence. 22 The particular inconsistency upon which the appellant relied related to the account of the first occasion of sexual contact. The appellant contended that the complaint as originally made to Senior Constable Boulton was that in May or June 2004, the appellant touched the complainant's breasts. The complainant then identified "another time after this time" when she went outside with the appellant and he asked her to give him a "head job", which she started to do, but then stopped. This was to be contrasted, on the appellant's submission, with the statement in the first ERISP, where the complainant had alleged that she had fellated the appellant on the same occasion as the first time of sexual contact between them. 23 In her statement dated 24 November 2004, Senior Constable Boulton recorded that the complainant's mother contacted Tweed Heads police station on 8 October 2004 and made a complaint in respect of certain matters relating to her daughter (the complainant) and the appellant. On 11 October, the complainant and her mother attended at the police station. Senior Constable Boulton obtained details from the complainant's mother and then interviewed the complainant separately, at the complainant's request. Senior Constable Boulton recorded that the complainant did not want her mother present in the room "as she seemed very embarrassed by what she was about to tell me" (Appeal book 83-84). 24 After recording general introductory matters that the complainant related to her, Senior Constable Boulton recorded: "7. [The complainant] stated that sometime around May or June an incident had taken place in [the complainant's] bedroom where [the appellant] asked [the complainant] if she wanted to watch a video. [The complainant] said she stood up from her bed and [the appellant] touched her breasts and she kept pushing him away and saying no but he persisted. She indicated in the end that she let him do it.

[31]

Another time after this incident she recalled [the appellant] offering her a cigarette as her mother was out. She went outside with [the appellant] where he asked her to give him a head job which she declined and indicated to [the appellant] that she hadn't done it before. [The appellant] then pulled down his pants and said to [the complainant], 'Touch it.' [The appellant] grabbed [the complainant's] hand and put it on his penis. He kept saying, 'Give me a head job.' He said this to [the appellant] about four times. [The complainant] started to do it and then stopped. She indicated that she didn't like the taste and when she stopped [the appellant] asked her to keep going but she didn't. [The complainant] then went back inside and [the appellant] went back to his end of the house. He also said to her, 'It's our secret, don't tell anyone.'" (Emphasis added) (Appeal book 84, 85) 25 Four days later, on 15 October 2004, the complainant participated in the first ERISP. That ERISP was conducted by Constable Pace, who was attached to the Child Protection Unit at Ballina. He asked the complainant whether she wanted to tell him what happened. He said: "… I can't ask you questions … it's up to you to tell me if you want to tell me. I need to know what happened, if that's what you want to tell me …" (Appeal book 96) 26 The complainant then gave the following version of events: "It started a few months ago, two, two and a half, I don't remember the exact date. My mum was at the club down at Seagull's … and I was at home by myself. Was in my bedroom watching a TV show called Alias and someone knocked on my door. I answered it, it was him. He asked me if I wanted to watch a video. I only had a DVD player. So, he said that only have [sic] a DVD player. And then he stood there for a while, just, just standing there and, yeah. And I got up and I'm not, I can't remember what he started speaking about. Started speaking about something, but and then he came over near me and went to touch my chest area and I pushed his hand away and I said, 'No'. And then he tried it about another three times until he just touched it. And then I asked him if he had a cigarette. He gave me some of his. He had a talley in his hand and then he stood in the cat food and he asked me if I could give him a head job and I said I didn't want to, because I don't know how to do it and because I didn't want my mum to find out and I was scared of her finding out, because she'll kill me. And yes, kept asking me, he kept touching my chest area. And then he grabbed my hand and put it on his penis and I touched it and he said a few things to me, but I can't remember what they were. Or something like that. And then I tried it and then I stopped, because I didn't like it very much." (Appeal book 96, 97) 27 At trial, the complainant was cross-examined extensively as to the detail of each offence (other than count 9). The cross-examination in respect of the second count commenced after a relatively lengthy cross-examination in respect of the first count. Relevantly, she said: "Q. You didn't say anything about a head job before [the appellant] did, did you? A. No.

[40]

Q. Did you go out as well then did you? A. Yeah." (Tr 82-83) 28 The appellant submitted that the version in the first ERISP and in the complainant's evidence at trial, that is, that the complainant fellated the appellant for the first time on the same occasion that he first made sexual contact by touching her breasts, was different from the version recorded in Senior Constable Boulton's statement, where the reference to the first occasion of fellatio was to "another time" after the touching of her breasts. The appellant submitted that it would be expected that a person who had not had prior sexual experience would have a clear recollection, at least of the first time she performed fellatio. He submitted that the different account she gave to Senior Constable Boulton from that recorded in the first ERISP and the account she gave at trial was notable. 29 The appellant also said there was a discrepancy in the various versions as to where the first occasion of fellatio had occurred. According to the statement made by Senior Constable Boulton, the first occasion occurred outside the house, whereas in the first ERISP, the complainant said the incident had occurred inside. It was submitted that these differences were significant and reflected adversely on the complainant's credibility. 30 The Crown submitted that too much emphasis could not be placed on any discrepancies between Senior Constable Boulton's statement and the ERISPs or evidence, as the statement did not purport to be a direct quote of what the complainant told Senior Constable Boulton. The Crown also relied upon the fact that Senior Constable Boulton recorded that the statement had not been taken in detail, because it was only an initial report made for the purposes of forwarding the complaint to the Joint Investigation Response Team. Senior Constable Boulton had also noted that the complainant was obviously embarrassed and shy about revealing details (Appeal book 86). 31 The Crown also submitted that the phrase in Senior Constable Boulton's statement, "another time after this incident" was possibly ambiguous, in that it could have been a reference to another type of conduct that commenced after the first conduct had ended. The Crown reminded the Court that the appellant had obviously made a decision not to call Senior Constable Boulton, to either clarify any ambiguity in those words or, alternatively, to seek to underscore the literal correctness of para 8 of Senior Constable Boulton's statement as meaning 'on a separate and later occasion'. The appellant, for his part, contended that it was for the Crown to have called Senior Constable Boulton if it wanted to clarify any ambiguity in the statement and that it was not for him to require her attendance. The appellant's counsel frankly conceded, however, that the appellant may not have wanted to cross-examine Senior Constable Boulton. 32 Likewise, the reference to "outside" in Senior Constable Boulton's statement might also be ambiguous. On a first reading, it is likely to mean outside the house. But it could have meant 'outside the bedroom'. For example, the information could have been given in response to a question such as, "did this also occur in the bedroom?", in which case there would be no discrepancy, or, at least, any discrepancy would be in the lack of detail, rather than in making two completely different statements. In the absence of evidence from Senior Counsel Boulton definitively stating that the complainant identified a place outside the house, and the complainant having little recollection of what she said, any discrepancy could properly have been treated by the jury as of little relevance to her credibility. 33 Further, there were matters in respect of which there was substantial correspondence between the two versions. In each version, the complainant said the appellant grabbed her hand and put it on his penis; that she commenced fellating the appellant, but stopped because she did not like it; that the appellant asked her to keep going, or "just finish it"; that the appellant gave the complainant a cigarette. There was a difference between the accounts, however, in that Senior Constable Boulton recorded that the appellant offered the complainant a cigarette, whereas in her first ERISP, the complainant said that she asked him for a cigarette); and that the complainant said that after the incident, the appellant went "back down his end" of the house. 34 The Crown finally submitted that the difference between the two versions was the subject of cross-examination and it was, therefore, a matter for the jury to assess. 35 It is possible that there were differences in the accounts given by the complainant as to when the first occasion of fellatio occurred. The appellant was entitled to, and did, highlight those matters to the jury as reflecting on the credibility of the complainant generally and in support of his case that the complainant was fabricating either this particular allegation, or all the allegations she made against the accused. However, it was a matter for the jury whether they accepted the complainant's evidence in respect of the essential elements of this offence. That, in turn, depended upon their assessment of her account, not only in respect of this count, but in respect of each of the charges and of her credibility generally. 36 There were various factors that were relevant to each aspect of that assessment, including her age, the circumstances in which Senior Constable Boulton's interview was conducted, and the fact that the complainant was highly embarrassed and reluctant to reveal details. That may have affected how directed Senior Constable Boulton's questions were, how focussed the complainant was in respect of details, or how clearly she was able to articulate all the circumstances of the offence at that stage. It was the jury's function to determine whether they accepted the complainant's evidence, either in whole or in part. Their overriding function was to determine, in respect of each charge, whether they were satisfied beyond reasonable doubt that the Crown had established all the elements of each offence.

[41]

Second contention: that the complainant gave accounts of sexual contact with the appellant to her friend that she subsequently denied, both when interviewed by police and in giving evidence before the Court 37 This complaint relates to evidence given by SP, a friend of the complainant. SP was interviewed by the police by way of an ERISP on 19 October 2004. SP was 14 at the time of the ERISP. 38 In her ERISP, SP stated that the complainant had told her that she, the complainant: "… stays in the cubby house and … [the appellant] goes up there every now and then and they like just do stuff, like headies and …" (Appeal book 201) 39 In cross-examination, the complainant said that she did not remember whether she had told SP that she had given the appellant "head jobs" in the cubby house. The complainant confirmed, however, that she had not fellated the appellant in the cubby house. The complainant was also asked whether she had told SP that the appellant had "put his finger in [her] vagina in the cubby house" and responded that she had never told SP of such an incident (Appeal book 396). 40 The appellant relied upon this evidence in support of his contention that the complainant had given accounts of sexual contact with the appellant to her friend which she subsequently denied when interviewed by police and in her evidence at the trial. The appellant did not cite any evidence in support of his submission that the complainant had made such denials to the police. A reading of the ERISPs indicates that the complainant was not asked expressly to confirm what SP had alleged. 41 The Crown submitted that the differences in the evidence of the complainant and SP did not in themselves mean that the complainant was lying. The Crown pointed out that at trial, the complainant described an incident in which she came down from the cubby house at the request of the appellant and performed fellatio on him beside the house (Appeal book 588). The complainant also described an incident in her first ERISP in which she performed fellatio on the appellant beside the house (Appeal book 126), which, the Crown contended, was likely to have been the same incident described in greater detail by the complainant at trial. 42 This incident was not the subject of a charge against the appellant and was referred to as the "uncharged incident" in the closing addresses of counsel. However, the complainant was cross-examined extensively on the details of the "uncharged incident". The appellant's counsel referred to the complainant's cross-examination on the "uncharged incident" in his address to the jury as a matter highlighting the inconsistency in the complainant's evidence, both on this issue, and generally (Appeal Book 611). 43 The trial judge gave the jury a direction in the standard form relating to the evidence of the "uncharged incident". 44 The Crown submitted that it was open to the jury to find that SP was mistaken as to the detail of the incidents she described in her ERISP rather than that the complainant was mistaken or lying. 45 Again, the fact that there were discrepancies in the evidence was a matter for the jury to weigh up in their assessment of the individual witnesses and in the Crown case overall. (Crown's submissions page 5).

[42]

Third contention: the complainant delayed in contacting the police 46 The appellant submitted that the delay between the complainant's mother first finding out about the sexual conduct between the appellant and her daughter on 15 September 2004 and the complaint being made to the police on 8 October 2004 was almost inexplicable. 47 Evidence of complaint has particular significance in a sexual assault matter, as it is admissible evidence that the assault occurred: the Evidence Act 1995, s 66. Pursuant to s 66, evidence of complaint is so admissible if the occurrence was fresh in the memory of the complainant at the time the complaint was made. (The evidence in this case was given prior to the amendments to s 66 that came into effect on 1 January 2009). 48 Although the appellant framed this particular submission in terms of the delay in the complainant's mother reporting the matter to the police, the gravamen of the submission was that the complainant's mother was not a credible witness. The underlying contention was that the complainant's mother's motivation in making the report was allied to her own complaint to the police on 8 October 2004, seeking an Interim Apprehended Violence Order (the AVO) against the appellant for herself. If the complainant's mother was not a credible witness, it followed that the jury would not be able to accept that any complaint had been made to her. 49 The complainant's mother was cross-examined to the effect she had made the report of sexual conduct towards the complainant so as to bolster the AVO. She denied this. She explained that she had sought an AVO because the appellant had chased her, saying he was going to kill her and that when he had seen her car, he chased her, speeding behind her in his car. She said she had not gone to the police earlier because she did not have an address for the appellant (Appeal book 518-519). 50 The complainant's mother conceded in cross-examination that between 15 September and 8 October 2004, she had seen the appellant and his wife at the house on two or three occasions. It was suggested, therefore, that her evidence, that she did not know the whereabouts of the appellant, was not plausible. She denied this was so. The appellant and his wife had moved out of the house immediately after the complainant's mother had become aware of the appellant's conduct. The complainant's mother said she had looked for the appellant by driving around the streets, looking for where they lived. She said more than once that she did not have an address to give to the police (Appeal book 517). These matters were all subject of comment to the jury by the appellant's counsel in his final address. 51 Again, whether or not the jury accepted this evidence was a matter for their own assessment.

[52]

Q. So you didn't actually see it in her mouth is that right? A. Yes I didn't see it in her mouth." (Appeal book 461, 463-4) 56 The appellant submitted that it was unlikely that an incident such as this would be forgotten by either the complainant or PK, or that the details would become confused in a person's mind. He submitted that the differences in the two versions were such that it was likely that the complainant and PK had "put their heads together" and fabricated the evidence. He also relied upon the absence of any reference to this incident until the police raised the matter with the complainant in her third ERISP, after the they had learnt of the incident from PK's first ERISP. 57 Notwithstanding that there were differences in the accounts of the complainant (see [55]) and PK in respect of this incident, the two descriptions were similar, in that PK said that they had been in the lounge room playing the X-box; that the appellant had been playing with her leg; that she left the complainant and the appellant in the lounge room; that the complainant had something in her mouth; that the complainant had gone into the bathroom (although with the significant difference that the complainant said that she went into the bathroom before going into the bedroom); and that she and the complainant talked about the incident afterwards. 58 The complainant was cross-examined to the effect that she had not raised the incident where PK was staying at her house until her third ERISP. In re-examination, she explained that her first ERISP was the first time that she had met Constable Pace and that: "… I had to go through a lot and I may have left it out or it may have been mixed up with another incident". (Appeal book 415) 59 The complainant was also cross-examined extensively about the inconsistencies between her third ERISP and PK's account. Counsel for the appellant asked the complainant whether she had "put [her] head together with [PK]" and made up the incident in relation to count 8 and whether she had "made all these allegations about all these incidents up" (Appeal book 413). The complainant responded that she had not made the incidents up. In re-examination, she confirmed that these incidents had happened. 60 The Crown submitted that all inconsistencies had been brought to the attention of the jury, who were in the best position to assess the reliability and credibility of the complainant and PK. It further submitted that there was a degree of consistency in the evidence of the complainant and PK and that it was open to the jury to find that the inconsistencies were matters of details with only limited significance in terms of the overall evidence of the two witnesses (Crown submissions page 6). 61 When consideration is given to the totality of the evidence, there were both discrepancies and a significant degree of consistency. These were matters for the jury to assess. It was open to them to be satisfied that the discrepancies could be explained by normal differences in recollection.

[57]

Sixth contention: the unsatisfactory nature of PK's evidence in respect of count 9 68 The appellant submitted that PK's evidence in respect of count 9 was unconvincing. Count 9 was associated in time with count 8 and involved an incident where the appellant rubbed the complainant's chest on the outside of her clothing on the occasion when the complainant, the appellant and PK were playing a game on X-Box. That count had this unusual feature: PK was the only witness who gave evidence of this incident. She mentioned it in her first ERISP and gave evidence of it at trial. The complainant did not mention this incident in any of her interviews with the police, nor was she asked about it in her evidence in chief. She was not cross-examined about it. However, PK was cross-examined extensively about this incident. 69 It was submitted that it was apparent from the account PK gave in respect of this incident, that she was a person who did not care whether her evidence was, or was not, accurate (Appeal Tr 21). In this regard, the appellant referred to PK's cross-examination (Appeal book 482, 483), where she was asked whether the appellant had touched the complainant's breasts once or twice. She responded, "As I said, he touched it once. He poked them and then he grabbed them. So twice". She was asked where the incident occurred, namely, inside or outside the house. PK said, "it was outside" (Appeal book 483). 70 It was apparent that the cross-examination, which at this stage was based upon PK's ERISPs, was being directed to establish internal inconsistencies in her account. PK said that the appellant had touched the complainant at the time they were playing on X-Box. She was cross-examined as to whether she had observed the appellant touching the complainant's breasts on one occasion or more than one occasion. PK said that it had occurred once when she (PK) was outside speaking on her mobile phone and the other when she was inside and the three of them were playing on the X-Box. The following cross-examination then occurred: "Q. So when you said to me just earlier, there were only two times. There was a poking and a grabbing and they were right after each other in the same place. Is that not right? A. I thought you were putting towards being outside. I didn't realise you were saying inside as well." (Appeal book 484) 71 It was a matter for the jury whether PK's evidence was clear or not, just as it was a matter for the jury to determine whether or not they would accept her evidence. I would only pause to comment that PK's evidence at this point was clarified and to the extent there was any confusion, PK herself clarified it in response to the cross-examiner's questions.

[59]

The " Lord of the Rings " incident 73 The complainant's account regarding the "Lord of the Rings" incident (count 6) in her first ERISP was as follows: "… half way through [the ' Lord of the Rings ' movie] [the appellant's de facto wife] fell asleep and [the appellant] told her to go and get in bed. And he kept walking past me to go to the fridge and stuff like that and he tried to touch me and I, I shrugged it off. And he asked me if I wanted, would do anything with him tonight. And I said, 'No'. And he sat back down and he goes, 'Well, at least can you touch it?' And I just looked at him and I didn't say anything. And he grabbed my arm, pulled me over to his chair, told me to sit down, pull it out and I touched it. And did it for, I don't know how long and then I left." (Appeal book 100) 74 In cross-examination, counsel for the appellant asked the complainant a series of questions about where she was seated in the lounge room when the appellant allegedly pulled her over to his chair. The complainant agreed with counsel that she was seated on a chair the "furthest away from [the appellant]" when he pulled her to his chair in the way she had described in her first ERISP (Appeal book 406). She conceded that having regard to the location of the chair in which the appellant was sitting, he could not have reached her so as to pull her over to his chair. 75 It was submitted that this concession would have affected the complainant's credibility. However, the cross-examination was based upon the premise that, in the first ERISP, the complainant was in fact asserting that the appellant was sitting down when he grabbed her arm. The complainant conceded in cross-examination that that could not have happened. However, the account of the incident in the first ERISP was not crystal clear. 76 The jury may, of course, have considered that the complainant's two accounts were inconsistent. Alternatively, they may have considered that there was in fact no inconsistency, but merely a different manner of expression which was not clear in the first ERISP. Alternatively, they may have acted upon the basis that there was an inconsistency, but it was not one which affected their overall assessment of whether or not sexual conduct as described by the complainant occurred on the occasion when they were watching "The Lord of the Rings".

[60]

The Monopoly game incident 77 The complainant referred to an incident in her first ERISP when she said the appellant and his de facto wife asked if she wanted to play Monopoly. She said the game commenced at about 9 pm and that the appellant came and sat next to her, his de facto wife sitting on the opposite side of the board. Her mother also played. The complainant said her mother soon fell asleep. She said that the appellant's de facto wife soon "got out" and that the appellant and the complainant kept playing and the appellant's de facto wife went to bed (Appeal book 98). After the game finished, the complainant packed it up and put it away. The appellant came to her and again asked her to fellate him. 78 The appellant contended that the complainant's evidence was inconsistent with his evidence and that of the complainant's mother and his de facto wife, all of whom said that the complainant and her mother were the last two in the game. 79 The complainant's mother recalled that there was a game of Monopoly, when the four of them played. She could not remember whether the appellant and his de facto wife were the first two out of the game. She was asked: "Q. Do you remember you were left with [the complainant], you were the last two in the game? A. Yeah I, well actually yes I do, I do remember that yep." (Appeal book 512) 80 The complainant's mother said she had been drinking at a club with the appellant and his de facto wife prior to coming home and playing the game. She said that the three of them continued to drink when they got home and during the Monopoly game. She remembered a particular incident during the game, when the appellant's de facto wife accidentally put out her cigarette in the complainant's mother's drink. The appellant's evidence was to the same effect. 81 The complainant's mother was asked a series of questions about what each of the participants in the game had done after they had "got out". The complainant's mother was not able to remember any detail. She was asked, "do you remember this particular night …?" and answered, "No I don't" (Appeal book 512). She said that she remembered the "cigarette in the drink", but that she could not recall anything else. She accepted, however, that the four of them were sitting at a table playing Monopoly when the incident with the cigarette occurred. 82 The appellant's evidence was specific in that he said he went to bed first. He said that his de facto wife stayed on the lounge and watched television and that the complainant and her mother were still playing Monopoly when he went to bed. The appellant's de facto wife's evidence corroborated the appellant's evidence on this matter. In particular, she said that the appellant went to bed first and that the complainant and her mother then "finished up the game ... [and] went back down to their end". She added that she stayed up to watch television for "another 10, 15 minutes" before turning off the television and going to bed. She said that when she went to bed, the appellant was in the bed sleeping (Appeal book 574-575). 83 There is no doubt that there were a number of significant discrepancies between the evidence of the complainant and that of the appellant and his de facto wife in respect of this incident. The Crown submitted that it was open to the jury to accept the recollection of the complainant over the recollections of the appellant, his de facto wife and the complainant's mother. The Crown contended that the evidence of the complainant's mother was heavily qualified (see [82]) and that the complainant was more likely to recall the surrounding circumstances of the Monopoly game, since she was the only participant in the game not drinking and because she had alleged there had been a sexual act between her and the appellant on that occasion. 84 Again, the discrepancies in the evidence in relation to count 3 were matters for the jury to assess. They may have thought that the complainant's mother's evidence that she and the complainant were the last two in the game ought not to be accepted, given that she said: she could not remember that particular night; she could not remember anything other than the incident involving the cigarette; and she could not remember whether the appellant and his de facto were the first two out. The jury might also have considered that her evidence on this was unreliable given that she had been drinking over an extended period, that is, both at the club and during the game. The jury might have had the same concerns in respect of the evidence of the appellant and his de facto wife in respect of this matter.

[62]

Were the verdicts unreasonable and incapable of being supported? 89 Notwithstanding that the individual matters upon which the appellant relied were all matters for the jury to assess, an accumulation of inconsistent and unsatisfactory evidence can serve to undermine a Crown case. The question is whether that point is reached in a particular case so that the verdict or verdicts are unsafe and unsatisfactory. The appellant contended that whilst some inconsistency, in terms of the detail given of a number of incidents, was acceptable, some of the inconsistencies in the complainant's evidence were so significant it was difficult to attribute them to a lapse of memory or some confusion at the time of being interviewed. The appellant relied in particular on the occasion when the complainant spat out semen (count 8) and the inconsistency between her evidence that she did so into the sink in the bathroom, and PK's evidence that she spat into the bin; and in particular, the complainant's evidence as to what had occurred on the first occasion of sexual conduct by the appellant, of whether fellatio occurred on that occasion, as well as whether that act had occurred inside or outside. 90 In M v R [1994] HCA 63; (1994) 181 CLR 487, Mason CJ, Deane, Dawson and Toohey JJ stated at [7]: "Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty … But 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 …" (Citations omitted) 91 Their Honours then explained, at [9]: "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 …" (Citations omitted) 92 In this case, the trial judge directed the jury that they were required to consider the evidence separately in respect of each count and to deliver a separate verdict in respect of each. His Honour informed the jury that they could deliver different verdicts on different counts. His Honour added: "If you found yourself in that situation it is necessary that I remind you that if you found yourself unpersuaded by [the complainant] in relation to one of more counts then, when it came time to consider the other counts, you would need to bear in mind, in deciding whether you accepted [the complainant] beyond reasonable doubt in relation to those counts, the fact that she had not been able to persuade you beyond reasonable doubt in relation to counts on which you were proposing to deliver a verdict of not guilty.

[65]

Ground 5: onus of proof placed upon the appellant 98 This ground of appeal related to the following comments made by the Crown during the course of the Crown's closing address: "One of the things that you might also consider in evaluating whether [the complainant] has been truthful about the essential elements, I mean and that's to say bluntly did each of these acts happen or not, consider the penile vaginal incident, it's count 7, it's the Hungry Jacks incident, the blanket on the ground, why add the complications of unprotected sex, worried about pregnancy if that was not the truth (emphasis added)." (Supplementary written submissions [10]) 99 The appellant contended that the trial judge not only failed to give a proper direction to the jury in relation to the Crown's comments, but, in effect, repeated those comments. It was submitted that the comments effectively reversed the onus of proof. The Crown sought to illustrate its point by reference to count 7 (see [13]). 100 In his summing-up, the trial judge dealt with the challenged aspect of the Crown's address in these terms (Appeal book 39): "[The Crown] asked you, rhetorically, to consider the way in which [the complainant] had given her evidence about the Hungry Jacks incident and [the Crown] asked you to consider why, if she was making up a story, she would add the quite unnecessary complications of this being an act of sexual intercourse without protection in circumstances which were physically uncomfortable and so on if it did not happen at all . She is simply telling a story. She would have kept it simple in order to not confuse herself, rather than introducing these other complications including her belief that she was at risk of pregnancy necessitating her conversation with [the appellant's partner] and so on. Well that is the Crown argument." (Emphasis added) 101 The appellant submitted that asking the question "Why would she say [certain matters] if [they] did not happen?", was not materially different from asking the impermissible question, "Why would the complainant lie?" (Supplementary written submissions [12]). It was submitted that the effect of asking the question, "Why would the complainant lie?", was to invite the jury to accept the complainant's evidence unless the accused provided a positive answer to that question. The consequence of having the jury reason in that way was to reverse the onus of proof: see Palmer v R [1998] HCA 2; (1998) 193 CLR 1 at [7]. Likewise, by asking "Why would [the complainant] say 'X' if it did not happen?" was to invite the jury to accept the complainant's evidence unless the accused person could establish that thing had not happened (Supplementary written submissions [12]-[13]). 102 In R v E (1996) 39 NSWLR 450, Sperling J (Handley JA and Abadee J agreeing) explained why it was inappropriate to pose to the jury the question why would the complainant lie. His Honour stated, at 464: "… we are dealing here with a case where there is no direct evidence of an actual motive to lie, nor evidence from which a specific motive to lie could reasonably be inferred. To ask, 'Why would he or she lie?' in such a case is to invite the jury to speculate as to what might be possible motives for lying and to assess their likelihood. That is not to try the case on the evidence, but to speculate concerning unproven facts. The absence of evidence of a motive for lying and of a plausible explanation for lying is not proof that there was no motive for lying. Yet to pose the question at all is to give legitimacy to that method of reasoning and to that conclusion. That was the ratio of the decision in R v Davies .

[67]

Thirdly, the effect of the question is to reverse the onus of proof. The question implies that, unless the jury is satisfied that the complainant is a liar, they should accept the complainant's evidence and convict." 103 In Palmer, Brennan CJ, Gaudron and Gummow JJ noted, at [8], that the third observation made by Sperling J might overstate the effect of the question in a particular case. This was especially so if the trial judge gave the jury a firm and clear direction to the contrary. The direction might be sufficient to prevent the impropriety of asking the question from causing justice to miscarry. However, their Honours emphasised that the question "Why would the complainant lie" is irrelevant to any issue in the case and should not be asked. Their Honours endorsed the comments of Hunt CJ at CL in R v Uhrig (Court of Criminal Appeal, 24 October 1996, unreported) at 15-16, where his Honour said that to pose that question: "… invites the jury to speculate ... to the conclusion that, unless they are satisfied by the accused that the witness has a motive to lie, they should accept the evidence of that witness and convict ( R v E ). In my view, that danger of such illegitimate speculation is a sufficient reason for saying that the rhetorical question should not be raised in such a case." 104 This issue was considered recently by this Court in Doe v R [2008] NSWCCA 203, where Latham J (Spigelman CJ and Hidden J agreeing) undertook an historical analysis of what she described as the "prohibited invitation to speculate". Her Honour noted that such an invitation gave rise to a risk that in the search for an explanation as to why false allegations might be made against an accused person, the onus of proof might be transferred from the Crown to the accused. Latham J also observed that even though the Crown in Uhrig did not expressly ask "why would the complainant lie", the question had been subsumed within counsel's submission and within the trial judge's summing-up. Her Honour explained, at [57]: "… the Crown submission, and the summing up, explicitly reinforced the notion that the accused bore some responsibility for exposing a motive in cross-examination, and given that no motive was explored, the jury could readily accept the witness as truthful." 105 As Latham J re-examined the authorities on this issue in Doe, it is not necessary to enter into that analysis afresh. Rather, it is sufficient to rely upon her Honour's conclusions, which she expressed in the following terms: "[58] Having regard to these authorities, the following propositions emerge. Where the defence case directly asserts a motive to lie, and the issue has accordingly featured in the addresses of counsel, a miscarriage of justice may arise if the summing up gives undue emphasis to the issue of motive ('the central theme'), or goes beyond the asserted motive and poses the question at large, and the summing up does not contain full, firm and clear directions on the onus of proof, including a direction that the accused bears no onus to prove a motive to lie and that rejection of the motive does not justify a conclusion that the evidence of the witness is truthful.

[72]

[60] Ultimately, whether the conduct outlined in (i), (ii) or (iii) leaves the jury with the impression that the accused bears some onus of proving the existence of a motive for the fabrication of the allegations against him/her, falls to be determined on the strength of the directions in the summing up. Full, firm and clear directions on the onus of proof, including a direction that the accused bears no onus to prove a motive to lie, may be sufficient to correct such a misapprehension. Much depends upon the particular circumstances of the case." 106 The comment to the jury in the case subject of the present appeal is different from that discussed in those authorities, which was the impermissible rhetorical question "why would the complainant lie?". In dealing with this part of the Crown's summing-up, the trial judge explained to the jury that the Crown had asked them, in a rhetorical fashion, "to consider the way in which [the complainant] had given her evidence (emphasis added)". His Honour noted that the Crown suggested, by reference to her evidence in respect of count 7, that if she had been "making up a story", she would not have embellished the story with detail. His Honour explained to the jury that the Crown was suggesting that if she was making it up, she risked forgetting or becoming confused in the detail that she had recounted. Rather, if she was making it up, it was likely that she would have kept it simple. It is apparent from the above that his Honour considered and explained to the jury that the Crown's approach was, in effect, an exhortation to the jury to keep in mind the old adage that a liar has to have a good memory. 107 The question which arises, however, is the same, namely, was the effect of the comment to the jury such as to reverse the onus and to put the accused in the position where, unless he could disprove the complainant's evidence, her evidence should be accepted. If that was the effect of the comment, the trial judge was required to give a clear direction on the onus of proof. 108 The question which is raised by the appellant's challenge, however, was whether the Crown went too far. Did the rhetorical question "why [would she] add the complications of unprotected sex, worried about pregnancy if that was not the truth?" amount to an invitation to the jury to accept her evidence unless the appellant, as the accused person, could provide a positive answer to that question. 109 This question cannot be answered in the abstract. It has to be considered not only in the context of the trial itself, but also, and more importantly, in the manner in which it was treated by the trial judge. His Honour commenced his summing-up on this part of the Crown address by stating that the effect of the rhetorical question was to ask the jury to consider the manner in which the complainant gave her evidence. A fundamental task of the jury in reasoning to its determination of the guilt or otherwise of the accused is to the assess the evidence of the witnesses. The manner in which a witness gives evidence is an integral aspect of that task. A lack of detail where detail might be expected may persuade the jury that the witness' evidence is at best unreliable, or at worst concocted. Too much detail might be considered to involve an element of fantasy. It all depends on the facts and circumstances of the case, including the personal circumstances of the complainant. Detail, especially where it might be expected and where it is consistent with the event that is being assessed, may persuade a jury that witness' evidence is truthful. Such matters are able to be exploited in cross-examination and explored in addresses. 110 In this case, in his address to the jury, Crown counsel drew attention to the detail of the complainant's evidence. In my opinion, he was suggesting to the jury that it would be unlikely that the complainant would give the detail that she did unless it was true. In this regard, the content of the detail was particularly significant. They were the very matters the jury might consider were of a deep concern to a young girl who had just had sex. It was appropriate for the Crown to draw such matters to the attention of the jury. Indeed, it would be expected. It was also of particular significance in this case that the complainant had spoken to an older person about her concerns about pregnancy. In that regard, the person to whom she spoke, the appellant's de facto wife, gave evidence that corroborated the complainant's evidence. 111 The jury did not have to accept the complainant's evidence. But as his Honour said to the jury, the Crown's argument was that the detail the complainant gave about this event was such that she should be believed. That was an aspect of the "way in which she had given her evidence" that was likely to persuade the jury that she was telling the truth. 112 In my opinion, the jury was not being asked to accept the complainant's evidence unless the appellant provided a positive answer to the rhetorical question posed by the Crown (although it would have been better to avoid the rhetorical question). Rather, it was being suggested to the jury that there was a tool or a method by which they could assess the complainant's evidence, namely, by considering that she was concerned about becoming pregnant, given that she was a 14 year old girl at the time of the alleged incident, and that as a matter of common sense, it would be unlikely that a complainant would give such evidence, unless it was the truth. 113 Leave to appeal is necessary for this ground: Criminal Appeal Rules, r 4 and I would refuse leave. 114 I would thus reject this ground of appeal.

Cusack v Regina

At a glance

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Judgment (75 paragraphs)

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Cases Cited (9)

Cited By (2)