DD v R

PARTIES: DD - Appellant Regina - Respondent

Mr R Foord/Mr D Mihalic - Appellant COUNSEL: Mr J Pickering - Crown

SOLICITORS: Haylen Mackenzie - Appellant S Kavanagh - Crown

IN THE COURT OF CRIMINAL APPEAL 2009/4121

McCLELLAN CJ at CL KIRBY J HOEBEN J

Tuesday 26 October 2010 DD v REGINA Judgment 1 McCLELLAN CJ at CL: I have had the benefit of reading the reasons for judgment of Hoeben J in draft. As his Honour makes plain this is another case in which my remarks in R v TK [2009] NSWCCA 151 at [8] are relevant. At [8] I said: "The significance of a finding by an appeal court that, although properly instructed as to the law, a jury's verdict of guilty on some counts cannot be accepted because they acquitted on other counts should not be underestimated. There will be cases where the jury's verdicts bear no analysis other than the decision making process has miscarried. But of itself the fact of the inconsistencies may merely support a conclusion that the jury has accepted its obligations and carefully turned its mind to decide each individual count, rather than indicate that the decision making process has miscarried." 2 I agree with the orders proposed by Hoeben J and with his Honour's reasons. 3 KIRBY J: I agree with Hoeben J. 4 HOEBEN J: Nature of Appeal The appellant faced a trial commencing 14 October 2009 at the Parramatta District Court before Judge Knox SC and a jury of twelve on an indictment containing seven counts as follows:

Count 1: Section 61I - sexual intercourse without consent with JR on 28 May 2008 (allegation of the appellant inserting his finger/s into the complainant's vagina);

Count 2: Section 61L - indecent assault on JR on 28 May 2008 (allegation of the appellant placing his tongue inside the complainant's mouth and kissing her);

Count 3: Section 61L - indecent assault on JR on 28 may 2008 (allegation of touching the breasts of the complainant);

Count 4: Section 61I - sexual intercourse without consent with JR on 28 May 2008 (allegation of the appellant inserting his finger/s into the complainant's vagina);

Count 5: Section 61L - indecent assault on JR on 28 May 2008 (allegation of touching the complainant's breasts);

Count 6: Section 61I - sexual intercourse without consent with JR on 28 May 2008 (allegation of the appellant inserting his finger/s into the complainant's vagina);

Count 7: Section 61L - indecent assault on JR on 28 May 2008 (allegation of licking and kissing the complainant's breasts). 5 On 20 October 2009 the jury returned guilty verdicts in relation to counts 2 and 3 and not guilty verdicts in relation to counts 1, 4, 5, 6, and 7. 6 His Honour passed sentence on 11 December 2009. In respect of count 2 the appellant was sentenced to a s 9 bond that he be of good behaviour for a period of 3 years commencing 20 October 2009. In respect of count 3 he was sentenced to a fine of $10,000, such amount to be paid within 28 days. There is no appeal in relation to those sentences. 7 The appellant appeals against his conviction on the following two grounds:

Ground 1: The guilty verdicts of the jury were inconsistent and unreasonable in circumstances of acquittal in respect of the five other counts (three of which were sexual intercourse counts and two of which were indecent assault counts) and the directions of the trial judge given pursuant to this Court's decision in R v Markuleski [2001] NSWCCA 290, (2001) 52 NSWLR 82.

Ground 2: His Honour erred in failing to direct the jury that the Crown submission in address that the appellant acted out of sexual frustration was not available on the evidence adduced at trial.

Crown Case 8 The Crown case was that the complainant, JR, was a woman aged 39 living at number 36 in a street in Campsie with her child. The appellant owned a property being number 40 in that street. Number 40 comprised business premises. The complainant had seen the appellant in the street over several years and had spoken to him briefly on occasions, however, they were not that well known to each other. She claimed that she was invited into the appellant's property on 28 May 2008 where, in an office area of the property, the appellant held her down and proceeded to commit the seven acts outlined in the indictment upon her. She alleged that these actions occurred without her consent before she freed herself and returned to her home and subsequently complained to friends about the appellant's actions towards her. 9 In order to understand the arguments raised on appeal, it is necessary to go into the facts somewhat more closely. 10 On 28 May 2008 the complainant was returning from shopping when she saw the appellant outside number 40 in her street. He waved to her and they had a conversation together outside the address. The appellant then asked her to come inside, which the complainant agreed to do. Once inside the premises, they went into an office and the conversation continued. 11 The complainant gave evidence that she became concerned that something was going to happen as she claimed that the appellant had locked the door and she was concerned about the direction in which the conversation was headed. In particular she was concerned about the appellant talking about his wife having cancer and how she was now not able to do anything and that he was unhappy with her. 12 The complainant claimed that the appellant hugged her very tight and proceeded to push her onto the floor and held her arms whereupon he said "How much should I pay for a fuck?" He then proceeded to lie on top of her, tried to lick her face, and then put his mouth to her face, before again talking about paying to have sex with her. The complainant claimed that the appellant then placed his finger into her vagina. 13 The complainant claimed that the appellant grabbed her face and tried to put his tongue in her mouth, which he was successful in doing. She claimed that the appellant used his hand to lift up her clothes and he proceeded to touch and lick her breasts. 14 The complainant claimed that the appellant again inserted his fingers into her vagina. She begged him to stop, but he became crazy. He then proceeded to again touch her breasts and again place his fingers into her vagina. 15 The complainant claimed that the appellant then tried to kiss all parts of her face/cheeks. The complainant said that she continued to beg him to stop and tried to convince him of reasons to stop doing these things to her. The complainant said that she was successful in forcing the appellant off her and that she ran from the office and the premises back to her home. 16 Once home the complainant said that she immediately vomited, brushed her teeth and showered before sending a text message to a friend named Helen that the appellant had tried to rape her. The complainant said that she then spoke to Helen on the phone, who told her to call the police, however, the complainant claimed to be too scared to call the police. 17 The complainant said that she spoke to her English teacher at TAFE, Kerrin, and complained about what had happened to her. On 30 May 2008 the complainant contacted the police and made a statement. 18 On 30 May 2008 the complainant was taken to RPA Hospital where a doctor took a history from her and subsequently completed an examination which essentially revealed no findings of any significance. 19 On 3 June 2008 the appellant was arrested by police. The appellant told the police that "She asked me for money … she offered me sex for money. I asked her how much money you want I am a married man". The appellant was asked by the police did he touch the complainant at all and he answered "No, we were close. When she came to me maybe a little bit of touching". 20 It should be noted that the appellant was of good character and as indicated, promptly denied any wrongdoing. In his case he relied upon what he had said to the police immediately following the accusations being put to him.

Ground of Appeal 1 21 The appellant submitted that the inconsistency in verdicts arose from the fact that there were five acquittals and two convictions on the complainant's evidence which was uncorroborated. He submitted that the evidence and the quality of it was the same in relation to all matters. 22 The appellant submitted that where such situations arose, the test to be applied was one of logic and reasonableness. In that regard, he relied upon the following statement by Devlin J in R v Stone (unreported, 13 December 1954) which was cited with approval in MacKenzie v The Queen (1996) 190 CLR 348 at 366: "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." 23 The appellant accepted that this Court needed to determine whether there was a proper way to reconcile the verdicts. If there were such a way then this would allow the Court to conclude that the jury performed its functions as required and the verdicts would generally stand (MacKenzie page 367). The appellant also accepted that it was open for this Court to conclude that the jury took "a merciful view" of the facts in the five counts upon which the appellant was acquitted. He accepted that this was a function that was legitimately open to the jury. Nevertheless, the appellant relied upon the following caveat in MacKenzie at 368: "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 common sense which is unacceptable and strongly suggests a compromise of the performance of the jury's duties. 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. 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. It is impossible to state hard and fast rules. "It all depends upon the facts of the case". 24 The appellant submitted that there was no corroboration for the complainant's evidence and that this was a "word against word" case. He submitted that although there was no delay in complaint, the terms of the various complaints were different and the reliability of what the complainant had said was heavily challenged at trial. The appellant submitted that there was no difference in the quality of the testimony and that in fact the testimony as to digital penetration was if anything more consistent than that in relation to the other charges. 25 In relation to there being no difference in the quality of the evidence, the appellant submitted that the evidence related to one set of circumstances which happened over a very short period. The allegations were vigorously denied by him and he conceded only "that there may have been a little bit of touching". The appellant submitted that it was difficult to see what portion of the complainant's testimony would have remained credible when the evidence as to the more serious offences had apparently been rejected along with the evidence concerning complaint which referred to the word "rape", not "touch me" or "sexually assaulted me". The appellant submitted that there were no relevant differences in the evidence as to the way in which the complainant described those incidents which were found by the jury to have occurred and those which they found did not. 26 This last submission of the appellant requires qualification. There is no general rule that in cases where several sexual offences depend upon the testimony of the complainant, acquittal on some counts compels a conclusion that the jury must necessarily have regarded the complainant as an untruthful witness, or that her credibility was undermined in respect of the counts upon which it has convicted. In the absence of other indicia, the only inference which can properly be drawn is that the jury was not satisfied, as to those counts upon which it did not convict, beyond a reasonable doubt (R v PMT (2003) VSCA 200, (2003) 8 VR 50 at [25], MFA v The Queen [2002] HCA 53, (2002) 213 CLR 606 at [83 - 89]. 27 The appellant's submissions also need to be considered against that which the High Court (McHugh, Gummow and Kirby JJ) said in MFA at [85]: "In judging suggested inconsistency, this Court said in MacKenzie that "if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to concluded that the jury performed their functions as required, that conclusion will generally be accepted." The Court cited with approval the remarks of King CJ in R v Kirkman to the effect that juries may not always act "in accordance with strictly logical considerations" or even "in accordance with the strict principles of the law which are explained to them". Juries sometimes give effect to their "innate sense of fairness and justice" as well to their sense of proportion and compassion". 28 The appellant's submissions also need to be considered against the statement of principle in MFA by Gleeson CJ, Hayne and Callinan JJ at [34 - 35]: "34 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. 35 It appears from the review of decisions of trial judges and intermediate appellate courts undertaken in Markuleski [2001] NSWCCA 290, 52 NSWLR 82 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." 29 On two occasions his Honour gave clear and unequivocal directions to the jury that they were not to arrive at compromised verdicts and warned that they "cannot approach these counts as some sort of bargain". His Honour also gave a clear direction as contemplated by Markuleski as follows: "Now, also I need to make it clear that because there are a number of counts, giving separate consideration to those individual counts means that you are entitled to, if you want to, bring in verdicts of guilty on some counts and not guilty on some other counts or vice versa if there is a logical reason for that outcome. But if you were to find the accused not guilty of one particular count, particularly if that was because you had doubts about the reliability of the evidence of the complainant then you would have to and should take into account that doubt in your consideration of the remaining counts." (p 10 Summing-up, 19.10.2009) 30 His Honour also gave a conventional direction in accordance with R v Murray (1987) 11 NSWLR 12 to the effect that caution had to be exercised by the jury when considering a case where the evidence was based largely or exclusively on a single witness. His Honour concluded that direction as follows: "Now in considering JR's evidence, and whether it does satisfy you of the accused's guilt, you should of course look to see whether it is supported by other evidence. Even if you prefer the evidence of the prosecution you should not convict unless you are satisfied beyond reasonable doubt of the truth of that evidence. That is two things I have said to you: Honesty and accuracy. Even if you do not positively believe the account given by the accused to the police officers for example, you cannot find an issue against him contrary to that evidence if that evidence raises reasonable doubt on that particular issue." (P13 Summing-up, 19.10.2009) 31 On an analysis of the evidence I am satisfied that there was a logical and reasonable basis for the jury convicting the appellant on counts 2 and 3 and acquitting him on the other counts. 32 In relation to count 3 and the acquittals on the sexual intercourse counts 1, 4 and 6, the complaint evidence led at trial by the Crown is important. 33 The complaint evidence given at trial in chronological order can be summarised as follows:

(i) First complaint - in a text message to Helen the complainant said that the appellant "wanted to rape her":

(ii) Second complaint - the complainant then spoke to Helen and told her that the appellant had pulled her pants down, started to kiss her and lick her and used his fingers to put it up her pussy.

(iii) Third complaint - the complainant then spoke to Kerrin and complained that she had been raped and that the appellant had started to fondle her, caress her, unbutton her blouse, fondle her breasts, try to kiss her, put his tongue in her mouth which she said was yucky, and then put his finger in her pussy, before she escaped.

(iv) Fourth complaint - the complainant told a police constable that the appellant tried to kiss her, then opened her mouth and placed his tongue inside her mouth, that he then played with her breasts, before then placing two fingers into her vagina.

(v) Fifth complaint - the complainant told a doctor that the appellant had grabbed her, kissed her around the face, lifted up her top and touched and licked her breasts, and that he then put his hands down her pants and into her vagina, before escaping. 34 What would have been readily apparent to the jury were the following matters:

(a) That the order of events (despite the order of the indictment) was kissing, assault on the breasts and then finger/s in the vagina; and

(b) That in all complaints (ii) - (v) the complainant consistently complained of not only the order of events as outlined in (a), but only complained of one incident of each act - that is - one kissing incident - one assault on the breasts - and one incident of finger/s being placed in the vagina. 35 Despite this consistency in the order of incidents and in the amount of times each of the incidents happened (i.e. a complaint of only ONE of each incident) in the five complaints - when the jury came to consider the indictment they were faced with three counts of sexual intercourse and four counts of indecent assault. When those seven counts are broken down into the actual allegations, it still only involves a kissing incident, an assault on the breasts (charged three times) and finger/s in the vagina (charged three times). While the indictment for seven counts could technically be supported from the complainant's evidence in chief, it still only represented three distinct types of criminal activity by the appellant - kissing - assault on the breasts - and finger/s in the vagina. 36 The significance of this is that if the jury decided in the appellant's favour to give him the benefit of the doubt regarding the sexual intercourse, that would automatically have led to not guilty verdicts on three counts. Likewise, in examining counts 3, 5 and 7 (the indecent assault allegations involving an assault on the breasts) the jury may well have found support for one count on the indictment (count 3) but not for multiple counts (5 and 7) - in the light of the complainant consistently in her five complaints not outlining multiple indecent assault incidents involving the breasts but just one. 37 There is another piece of evidence which may well have led the jury to reach the same conclusion. This was the evidence that the appellant had told the police upon his arrest "we were close" and that "when she came to me maybe a little bit of touching". The appellant never gave evidence in the trial to explain what he meant when he used those words. The jury were likely to have given that evidence considerable weight in that the appellant had made the comment to the police after being confronted with the allegation that he had sexually assaulted the complainant. 38 The jury, in correctly following his Honour's directions to carefully scrutinise the evidence of the complainant and look for some support, may well have found that support in this admission by the appellant. This admission, however, could never have amounted to support for the allegations of sexual intercourse without consent (counts 1, 4 and 6). 39 Accordingly, rather than being a compromise in relation to the acquittals on counts 5 and 7, this was an example of the jury actually complying strictly with his Honour's orders to evaluate each count separately and look for support. Count 3 had the support of the complaint evidence and the appellant's apparent admission. Counts 5 and 7, on the other hand, did not, strictly have the support of the complaint evidence and as such the jury were entitled to give the appellant the benefit of the doubt on those counts. 40 Once the jury had decided beyond reasonable doubt of the appellant's guilt on count 3 and made the decision not to convict on counts 5 and 7, the jury would have gone through a similar reasoning process when complying with the Murray direction in relation to count 2 (the kissing incident). 41 The Murray direction dealt not only with the aspect of the jury looking for any possible support of the complainant in relation to any specific count on the indictment but also with the quality of the complainant's evidence. This occurred when the direction referred to the jury scrutinising her evidence with great care. 42 In relation to count 2 the jury would have noted a consistency of immediate complaint of that incident in the five complaints which provided significant support to this count. In relation to count 2 there was no inconsistent complaint evidence unlike the sexual intercourse counts (1, 4 and 6) and the other indecent assault counts (5 and 7). The complainant only ever complained of one kissing incident and there was only one count relating to it. 43 The jury being mindful of the need to assess the credibility of the complainant in relation to each count separately, may also have been particularly affected by the complainant's evidence concerning count 2 where she said: "And then I say, "Let me go, let me go", and I couldn't breathe and I couldn't move and Jimmy tried to lick my face. I say to him, "No, no", and then I try to move my face and not let the - he put you know his mouth to my face. I feel yuck and disgusting at the time." (T.13 L41, 14.10.09)

And then later: "Q. Tell us about that. So you said he grabbed your chin, you had your hand on your bottom of your chin, is that where he grabbed you? A. Yes it's like this, he opened my mouth. Q. He opened - A. And he, yeah he opened my mouth and he want to, he want to put his tongue in my mouth. Q. Tell us what he actually did. You've used your hand in a motion that opens, pulls your chin down and opens your mouth? A. Yeah he used his right hand to grab my - to grab my face. Yeah grabbed my face and after that he tried to put his tongue in my mouth. Q. Where did his tongue go? A. His tongue go to my mouth and I can't do anything because my very tight and after that his left hand side lift up my clothes." (T.15.25 14.2009)

Later the complainant said in evidence: "That I managed to get into my home where I live. I saw Jimmy enter his car and I entered my house. I went to my bathroom and I vomited again and again. I brushed my teeth and cleaned my mouth…" (T.29.20, 15.10.2009) 44 What may have impressed the jury was that the complainant had found the use of the appellant's tongue within her mouth as particularly disgusting and that when she got free of the appellant, the first thing she did was to vomit continuously and then brush her teeth and clean her mouth out. All these responses were clearly in relation to the appellant placing his tongue in her mouth - the allegation in count 2. Significantly, the complainant's evidence was that she vomited, brushed her teeth and cleaned her mouth before she made any complaint of the appellant wanting to rape her. 45 In relation to the sexual intercourse counts (1, 4 and 6), the jury were in a situation where there was no consistent complaint evidence that was supportive of it, such as with counts 2 and 3, and unlike count 3 there was no admission from the appellant that could support the allegation. In addition, the very effective way in which counsel for the appellant dealt with the absence of DNA evidence was likely to have had more effect on the jury than in relation to counts 2 and 3. The absence of DNA evidence was stressed in submissions by counsel for the appellant at trial. 46 In the circumstances of this trial the jury was entitled to give the appellant the benefit of the doubt on the sexual intercourse counts, particularly in the light of the appellant's attack on the lack of DNA evidence and the inconsistency in complaint in relation to those counts. 47 For the above reasons, ground of appeal 1 has not been made out.

Ground of Appeal 2: 48 The second ground of appeal arose following the final address of the Crown at trial. There the Crown made the submission that "the accused acted out of sexual frustration". Counsel for the appellant objected to this submission at the first available opportunity. The trial judge indicated that he would not direct the jury to disregard the submission. 49 The appellant submitted that the only evidence in support of the Crown submission at trial came from the appellant's general practitioner, Dr M, who when giving evidence about the appellant's health generally said: "Q. That's the top digit, the terminal phalanx? A. His amputation from a work accident. Also two years ago he started complaining of the erection problems, quite simply it was a prostate (ailment) and he has been frustrated from this problem. Two years ago he used to ask for tablets but it didn't work. I've got [the notes], it didn't work and since April 2008 he stopped asking." (T.216.8, 16/10/09) 50 The appellant submitted that before the Crown could put that submission at trial, it had to be put squarely to the doctor and the doctor had to agree that the appellant was "sexually frustrated". The appellant submitted that the evidence as given by Dr M did not go so far as to ground such a submission and it involved speculation on the part of the Crown as to why the appellant might have acted towards the complainant in the way alleged. The appellant submitted that in a trial as finely balanced as this, a submission of this kind could have been decisive. 51 In considering this ground of appeal, it is useful to set out in full the submission made by the Crown at trial: "And lastly members of the jury, that the sexual frustration of the accused in circumstances where he had some erection problems with his wife was all part and parcel of this sexual assault of JR." (T.26.26, 19.10.09)

It is immediately obvious that the phrase "sexual frustration" is not being used in any medical sense, but merely in a descriptive way. 52 It is also not correct to say that the evidence of Dr M was the only evidence on this subject. At trial the complainant gave the following evidence as to comments made to her by the appellant: ""My wife have cancer", and I said "Bullshit, your wife is all right. I saw your wife before, she's all right". But after that he say "No, I'm not happy with my wife. My wife cannot do anything"." (T.13.8, 14.10.09) 53 Later in her evidence the complainant described the various acts alleged, but also described how the appellant became "crazier and crazier". When the acts finished she said that the appellant talked about wanting to go out for a meal with her and to meet up with her again (T.29.2-18, 15.1009). 54 There was also the following additional evidence from Dr M: "Q. So when you say he had - if I can just return to what you recall in his erection difficulties - did he say whether or not he was unable to be aroused at all or did he just say that he had some problems getting an erection from time to time? A. Only problems getting erection with wife. Q. With his wife? A. Yes." (T.220.8, 16.10.2009) 55 Those pieces of evidence taken together provided a sufficient basis for the Crown to make the submission which she did. There was, in effect, evidence of sexual frustration on the part of the appellant from his own mouth quite apart from the doctor's evidence. In those circumstances his Honour was correct in not making the direction sought by the appellant. Moreover, the Crown's submission which forms the basis of this ground of appeal was made en passant and formed but a tiny part of her address to the jury. This ground of appeal has not been made out. 56 The order which I propose is that the appeal be dismissed. **********

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