Drysdale v R

Crown case at trial

1. The Appellant who was aged 21 years and the Complainant who was aged 18 years were both employed casually for a company that provided entertainment to children at parties. They met for the first time at Centennial Park on 18 November 2012 when a promotional photo shoot was scheduled by the owner of the Company.
2. Following the photo shoot the Appellant, the Complainant and another employee had coffee at a café in Surry Hills. The Appellant was a graduate from the Western Australian Academy of Performing Arts and the Complainant was interested in being an actor. The third member of the group had attended the same Academy for three years with the Appellant.
3. After the third member of the group left the Appellant invited the Complainant back to his house in Zetland to assist her with monologues she was preparing for an audition at NIDA.
4. When they arrived at the house they walked through the living room where the Appellant's housemate, Ms Annabella McHugh, was sitting watching television. The Appellant took a movie from a shelf in the living room for him and the Complainant to watch on his computer in his bedroom.
5. The Complainant's evidence was that they sat either side of the Appellant's bed with his laptop computer in between them and began watching the movie. After a short time the Appellant then tried to kiss her and pull her close to him. She said, "I'm really sorry but I've probably given you the wrong idea. That's not why I'm here." She said to the Appellant that she should probably leave but he asked her to stay and she did so.
6. The Complainant said then that after they had each performed a monologue for each other she thanked the Appellant and said that she should probably go as it was getting late. As she was gathering her possessions to leave, the Appellant said words to the effect, "Well I've helped you, now what about me?"
7. The Appellant then grabbed her by both wrists with both his hands, threw her onto the bed and said words to the effect, "Do you really think somebody as small as you can get away from someone like me?" The Appellant then started to remove the Complainant's leggings and underwear despite her trying to prevent him from doing so.
8. What then occurred formed the basis of count 1 being an indecent assault. It involved the forcible removing by the Appellant of the Complainant's clothing and the grabbing and squeezing by the Appellant of her breasts.
9. What then happened formed the basis of counts 2 and 3 in the alternative. The Complainant's evidence was that after removing his own clothes while she remained naked on the bed the Appellant, who had an erection, climbed on top of her, one leg on each side. She said that she "had my hands on my vagina so that he couldn't penetrate me." Her legs were closed really tightly. The Appellant was rubbing his penis in the region of where her vagina was and she said "he was pretending that we were having sex". She asserted that he put her legs over her head which made it easier for him to get closer to her and he continued to thrust his hips towards her vagina. No penetration occurred. The jury convicted him of assault with an act of indecency in respect of the acts described in this paragraph, but found him not guilty of attempted sexual intercourse without consent.
10. The Complainant said that the Appellant flipped her over onto her stomach and inserted a finger into her vagina. That was the basis of count 4 being sexual intercourse without consent.
11. The Complainant said that the Appellant then flipped her over onto her back again and placed two fingers inside her vagina. That constituted count 5.
12. Simultaneously with placing two fingers inside her vagina the Appellant took the Complainant's right hand, placed it onto his penis, held her hand and used his hand on top of her hand to masturbate himself to the point of ejaculation. That constituted count 6 being a charge of indecent assault.
13. The Complainant said that they then lay together on the bed for about ten minutes with the Appellant lying behind her in a spooning position. During that time the Appellant said, "I feel we have this really strong connection". They then spoke about plays that they liked.
14. The Complainant gave evidence that the Appellant then digitally penetrated her vagina and used his own hand to masturbate whilst reciting lines from Macbeth. This constituted count 7 being sexual intercourse without consent.
15. The Complainant then gave evidence that after the Appellant had digitally penetrated her he squeezed her breasts and rubbed his penis between them. He then returned to masturbating and ejaculated for a second time, before checking the time and saying to the Complainant that it was late and that she should leave. That behaviour constituted count 8 being a charge of indecent assault.
16. The Complainant's evidence was that when she left the Appellant's house she did not think that Ms McHugh was still there although Ms McHugh gave evidence that she was. At the door she said to the Appellant, "Nice to meet you. I've got to go." The Crown case, to explain that remark, was that the Complainant said it so she could get away.
17. She then drove her car straight to her mother's house in Paddington. She did not tell her mother what had happened at that time but she did say to the mother: It just really sucks, mum, that boys just never want to be friends.
18. Later that night the Complainant spoke by telephone to a friend called Josh Anderson. She said she had been seeing him in a romantic capacity although he was not her boyfriend. She told Mr Anderson that the Appellant had "forced himself" onto her.
19. The following day the Complainant rang her employer at the children's party company, Ms Christina McLeod. She said to Ms McLeod words to the effect: Christina, this is what happened with Michael. He has forced himself onto me and he has assaulted me.
20. Complaint was first made to the police on 29 November 2012, that is, 11 days after the incidents complained of.

The Appellant's case

1. The Appellant's case of what happened that afternoon up to the time at which they lay down on the Appellant's bed and began to watch the movie largely accorded with the Complainant's evidence. Thereafter, the Appellant said after about 10 or 15 minutes, touching of fingertips began, followed shortly thereafter by kissing. The Appellant's evidence was that after about a minute of kissing, the Complainant pulled away from him and said "wait, listen, I just don't want to have sex today".
2. The Appellant's evidence was that he said "OK", they kissed a few more times and then went back to watching the movie. After another five to ten minutes they returned to kissing. Shortly afterwards he paused the movie. At this point she took hold of his shirt and said again: "I don't want to have sex today". The Appellant asked her why that was. His evidence of her response was as follows: I don't remember the exact entire conversation but the two things that stood out in that short conversation that we had after that was that she said 'I like the idea of having sex with you, I Just don't want to have sex today'. His evidence continued: At that point I said, 'OK, well, we don't have to have sex we can just do this and maybe other stuff.
3. On the defence case, they kissed again. He said that he was confused and that she noted his confusion and said, "I think I should probably go". He persuaded her to stay and they started kissing each other again, her lying on top of him whilst he was on his back and then they began to touch each other's genitals for the first time, at first over their clothes and then underneath.
4. The Appellant gave evidence that they undressed down to their underwear. While kissing, he placed his hand under the Complainant's underwear and "sort of started to play with her clitoris, there was no objection to do so, over a period of about 20 minutes or so". The Appellant gave evidence that "over the course of that 20 minute period, [the Complainant] indicated to me on three different occasions that she was having an orgasm."
5. The defence case is that thereafter the Appellant lay on his back and they continued kissing before the Complainant masturbated him for about five to ten minutes until he ejaculated onto his stomach. She then went to the bathroom and brought back some toilet paper for him.
6. On the Appellant's evidence it was after this that they started talking about acting, and later each got dressed and performed a monologue. This took 40 to 45 minutes according to the Appellant.
7. After the monologues were completed they kissed again, "quite passionately", and the Appellant's evidence was that because "it felt like there'd been a really nice coming together over the last sort of 40 minutes", he pulled back and said "let's have sex". He thought he saw her nod. They continued kissing, before undressing each other. He took a condom from a set of drawers and opened the wrapper, at which point the Complainant said, "Look, no way, I don't want to have sex". He said, "Oh, OK, it's just that I thought that you - never mind, let's just do what we were doing before."
8. The Appellant's evidence was that after kissing for a further time, while lying on his bed, he walked his knees up either side of the Complainant's body and put his penis between her breasts. After about 15 seconds he moved back, of his own accord, and they returned to their previous positions on the bed.
9. He then attempted to pleasure the Complainant through masturbation by digital penetration rather than clitoral stimulation, and after about five minutes she said, "OK I think we can stop now". He stopped, they kissed a few more times, then at his request she masturbated him for a short period and he ejaculated a second time. Once again she went to the bathroom and came back with toilet paper and he cleaned himself up.
10. Afterwards, the two of them lay on the bed talking for five to ten minutes before the Appellant looked outside and noticed that it was dark. He checked the time and said, "It's just after eight we should probably get you home". He thought she did not take this well. The two of them got dressed and he saw her out. Ms McHugh was still in the living room watching television when the Complainant left the premises.

Legal principles

1. The principles in relation to unreasonable verdicts have been comprehensively analysed in MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 especially at [23] and [34]. Subsequently, in R v TK [2009] NSWCCA 151; (2009) 74 NSWLR 299 Simpson J (with whom McClellan CJ at CL and Latham J agreed) said: [135] …But it seems to me that, where the circumstance said to create unreasonableness is inconsistency, then a new dimension is added to the conventional M test. The issue is not only whether the verdict was open "upon the whole of the evidence". It is whether the verdict was open on the whole of the evidence, and having regard to all relevant facts and circumstances, including the circumstance that the jury acquitted on one or some counts, whatever (if anything) can be discerned as the explanation for the acquittals, and whatever insight can be gained into the jury's thinking and reasoning. It is only where the only reasonable explanation for the acquittals is doubt about the Complainant's veracity that an appellate court would be obliged to take the approach taken in Jones (and in Norris). [136] In my view an appellate court ought to exercise caution before concluding that the explanation for differential verdicts is compromise. Inherent in that conclusion is the further conclusion that the jury has acted contrary to its duty, and contrary to the instruction it has been given. The criminal justice system depends upon its faith in juries adhering to their obligations, as explained to them, and acting in conformity with those obligations: …
2. In Dungay v R [2010] NSWCCA 82 Giles JA (RS Hulme and Latham JJ agreeing) said: [9] Gleeson CJ and Hayne and Callinan JJ said in MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 at [34], in relation to asserted inconsistency of verdicts, that "[t]he ultimate question concerns the reasonableness of the jury's decision". Unreasonableness is determined according to the test in the joint judgment of Mason CJ and Deane, Dawson and Toohey JJ in M v The Queen (1997) 191 CLR 439 at 493, namely, whether the court 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. Their Honours said in MFA v The Queen at [35] that this test "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". [10] In TK v R [2009] NSWCCA 151 it was pointed out that M v The Queen also recognised that a verdict must be set aside if on any other ground there was a miscarriage of justice. It was suggested that where the unreasonableness is because of asserted inconsistency of verdicts there is a "new dimension added to the conventional M test", going beyond the quality of the evidence and extending to the significance for the guilty verdict of the verdict of acquittal: see at [119]-[135] per Simpson J, Latham J agreeing at [204]. The wider inquiry "include[s] matters outside the evidence, such as the impact on the reasonableness of the verdict of guilty of what may be discerned to be the explanations for the acquittals": at [128]. [11] It is not necessary to explore whether there is truly an addendum to the test derived from M v The Queen, or only an additional dimension within that test. Consistency or inconsistency of verdicts will always come down to what was open to the jury upon the whole of the evidence. Examination of the evidence, with an appreciation of how it was presented and left to the jury, will reveal whether there is a rational explanation for a verdict of guilty on one count and a verdict of not guilty on another count. In MFA v The Queen, for example, it was held at [36] that there was an explanation in the evidence of the differences between the verdicts, and that it was therefore open to the jury to be satisfied beyond reasonable doubt of guilt on two counts notwithstanding unwillingness to convict on the other counts. [12] If a rational explanation cannot be discerned, it can be said that it was not open to the jury upon the whole of the evidence to be satisfied beyond reasonable doubt in coming to the guilty verdict, or it can be said that there was otherwise a miscarriage of justice. The formulation will rarely be of moment, and is not in the present case. Ultimately, as Wood CJ at CL pointed out in R v Markuleski [2001] NSWCCA 290; (2001) 52 NSWLR 82 at [237], on reviewing the entirety of the case the court may maintain a comfortable satisfaction as to the guilty verdict upon the evidence separately considered concerning it.
3. In Osland v R [1998] HCA 75; (1998) 197 CLR 316 McHugh J said: [120] When there is no legal or technical inconsistency in the verdicts, a conviction can only be set aside where the inconsistency in the verdicts demonstrates that no reasonable jury who had applied their minds to the evidence could have arrived at the two different verdicts. In such a case, the Court of Criminal Appeal sets aside the conviction because it is unsafe or unsatisfactory.

Submissions

1. The Appellant made two principal submissions concerning inconsistency. First, he said that a conviction on count 3 could not sit with an acquittal on count 2 alone. This was because the act that constituted those counts was the same. If the act itself was not attempted intercourse, as the jury found, then it was not an assault with an act of indecency.
2. Secondly, he said that a conviction on count 3 could not sit with an acquittal on all of the other counts together. This was because the jury must have had doubts about the Complainant's account of what happened overall. Part of those doubts was that he did the act or acts said to constitute the attempt to have sexual intercourse that was the basis of count 2 and in the alternative count 3. There was no rational explanation for differentiating between count 3 and the other counts.
3. The Crown submitted that the Appellant bears the burden of establishing inconsistency of verdicts, and it is only where inconsistency rises to the point that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside.
4. The Crown submitted that the conviction on count 3 demonstrated that in a 'word on word' case such as the present the jury required evidence other than that of the Complainant before they convicted. Here, the jury found support in the Appellant's evidence because the Appellant acknowledged that the Complainant had specifically told him that she did not want to have sex with him on that day and in that context the word "sex" was plainly understood to mean penile vaginal sexual intercourse. Despite that, the Crown submitted, the Appellant on several occasions on his own evidence tried to persuade her into having sex of that nature with him.
5. The Crown further submitted that, although the Appellant's evidence did not admit the acts the subject of counts 2 and 3, this did not cause the jury not to be satisfied the acts did not occur. This fact, together with the evidence that the Appellant was aware of the Complainant's lack of consent to penile/ vaginal sexual intercourse provided support for the Complainant's evidence on the issue of lack of consent.
6. The Crown drew attention to part of the Complainant's evidence that was also specifically identified to the jury by counsel for the Appellant. The Complainant's evidence was in relation to counts 2 and 3: He was thrusting them [his hips] towards my vagina and he wasn't physically penetrating me, but he was rubbing his penis in the region of where my vagina was and he was pretending we were having sex. Counsel for the Appellant then said to the jury: Now I would suggest to you that what the Complainant has disclosed there in terms of pretending to be having sex is not an attempt to engage in sexual intercourse. Having said that, if you accept her evidence that I have just read out to you, yes, I accept that that discloses an indecent assault and you would find Mr Drysdale guilty of count 3 in the alternative to count 2…
7. The Crown submitted that the acquittal on count 2 with the conviction on count 3 meant that the Crown did not satisfy the jury at the time the Appellant committed the act described by the Complainant (thrusting his hips towards her vagina) that he intended to penetrate the Complainant's vagina with his penis. In that way those two verdicts were not inconsistent.

The verdict was unreasonable

1. The Appellant's submission that the conviction on count 3 was inconsistent with the acquittal on count 2 must be rejected. Whilst attempted intercourse is likely to contain within it an assault with an act of indecency, proof of the latter will not necessarily be proof of the former. The Complainant's own evidence was that the Appellant was merely pretending to have sexual intercourse with her. That evidence was sufficient to enable to the jury at least to have a doubt that the Appellant was not attempting intercourse.
2. However, if the jury believed beyond reasonable doubt that the Complainant was not consenting to the act being performed by the Appellant and that he knew she was not consenting (or was reckless or had no reasonable belief in her consent) count 3 would be made out. Those two verdicts seen in isolation are not inconsistent. That was also made clear by what the Appellant's counsel said to the jury, set out at [46] above.
3. However, different considerations arise when the other acquittals are considered.
4. A reading of the Complainant's evidence and the Appellant's evidence demonstrates clearly that the two accounts of the time in the bedroom cannot stand together. Indeed, that was precisely the point the Crown made in his final address to the jury where he said at the outset: You will notice that the two versions are in fact radically different and there is not a lot of common ground between them. The evidence of [the Complainant] and the Accused cannot stand together, they can't both be true. Somebody is lying to you.
5. At the hearing on appeal Senior Counsel for the Crown said: Whilst the accounts given by the Complainant and the accused could not possibly stand together it is to be noted that the accused's account omitted … much of the sexual activity.
6. The two accounts given of events in the bedroom that afternoon can be reconciled to a small degree. What are said to be counts 7 and 8 fit largely into the account of events given by the Appellant after they had lain together and talked for a short period time towards the end. What cannot be reconciled is the account of how the sexual activity commenced including the acts which were said to constitute counts 2 and 3.
7. The jury either rejected the Complainant's account of the events or had sufficient doubt about them that they could not convict on counts 1-2 and 4-8. On a case involving word against word, and where there were other problems in relation to the Complainant's case including the evidence of Ms McHugh, the Complainant's actions and demeanour during and after the events, and the lack of early complaint, it seems likely that the jury rejected the Complainant's version of events.
8. As the Appellant submitted, a number of matters put forward by the Complainant were inherently unlikely on the assumption that her account of a lack of consent to the acts was correct. These included the Appellant saying after he had, on the Complainant's evidence, indecently assaulted her a number of times, "I feel that we've got this really strong connection"; the Complainant and Appellant lying quietly on the bed in a spooning position talking about plays they liked for about 10 minutes; that following those 10 minutes the Appellant digitally penetrated her without her consent whilst reciting lines from Macbeth; that while the Appellant was forcefully removing her clothes, squeezing her breast hard, holding her down and thrusting his hips with an erection towards her vagina she merely said to him "I think you've got the wrong idea".
9. Even if the jury simply had doubts about the Complainant's version, no rational explanation can be found for the conviction on count 3 when, in particular, the jury acquitted on counts 1, 2, 4 and 5 which, on the Complainant's description, occurred in a continuous fashion over a short period of time.
10. The Crown's explanation for the conviction in relation to count 3 should be rejected. The Appellant's acceptance in his evidence that the Complainant said she did not want to have sex meaning penile/vaginal sexual intercourse provides no support for the conviction in relation to count 3. On the Complainant's own evidence the Appellant accepted her refusal of penile/vaginal sexual intercourse by simply pretending to have sex with her whilst lying on top of her but not penetrating her (as she said) nor seriously attempting to penetrate her. That provides a clear explanation why the jury acquitted on count 2. It says nothing about why the jury convicted on count 3.
11. To justify the conviction on count 3 the Crown submitted that the jury must have found that the Appellant knew that the Complainant did not consent to an act of "pretence sexual intercourse". The proposition has only to be stated to be rejected. It is, in any event, inconsistent with the acquittal in relation to count 8 which involved a different form of "pretence sexual intercourse".
12. Her lack of consent was not, as the Crown appeared to accept, a refusal to engage in any form of sexual congress. It was a refusal to engage in penile/vaginal sexual intercourse. The only way the jury could have convicted on count 3 was to have accepted the Complainant's evidence that the Appellant lay on top of her with an erection thrusting his hips towards her vagina but not to have been satisfied that immediately before that act he forced himself upon her by the forceful removal of her clothing and the grabbing and squeezing of her breasts, and not to have been satisfied that immediately thereafter he flipped her onto her stomach and inserted a finger into her vagina, and then flipped her onto her back and placed two fingers into her vagina. Finally, the jury would not have been satisfied that the Complainant was forced to masturbate the Appellant to the point of ejaculation.
13. Those acts all took place together over a very short period of time and the jury acquitted in relation to all of them except, apparently, the Appellant rubbing his penis in the region of her vagina. There was nothing in that act that distinguished it from the other acts of which the Complainant alleged a lack of consent. Whether the jury rejected that the whole account by the Complainant (except the Appellant's act of his rubbing his penis in the region of her vagina) or whether it simply had doubts about her evidence, it ought to have reached the same conclusion in relation to the act that caused the conviction on count 3.
14. The absence of any objective evidence supporting the conviction in relation to Count 3 is highlighted by the acquittals in relation to the counts where both the Complainant and the Appellant are likely to be describing the same event such as counts 6, 7 and 8. The acquittals on those counts must mean that the jury at least had doubts that the Complainant was not consenting to those acts. That makes it the more difficult to understand how they could have convicted in relation to an act which the Appellant said did not happen at all during the course of the afternoon.
15. The Trial Judge made a number of references in his Remarks on Sentence to the difficulties in trying to understand the jury's verdict in this regard and in trying to find facts consistent with the jury's verdicts which included not only the conviction verdict but the acquittal verdicts. Further, although the trial judge found that the Appellant was reckless as to the Complainant's consent with regard to count 3 he only imposed a bond under s 10 of the Crimes (Sentencing Procedure) Act as noted earlier. There is no Crown appeal from what must be regarded as almost the most lenient sentence that could have been imposed and one that would ordinarily be considered as manifestly inadequate for an offence of the description given by the Complainant. It may be inferred from that sentence when coupled with his Honour's remarks on sentence that he too was troubled by the verdict.
16. That is a matter which can be taken into account: McCann v R [2014] NSWCCA 79 at [25]. So, too, can the length of the jury deliberations when compared with the length of the trial: McCann at [24]. In the present case the trial took 4 days and the jury deliberations took 5 days. These matters provide support for the submission that the jury verdicts are irreconcilable and were reached as a compromise.
17. In my opinion, the guilty verdict on count 2 should be set aside.

Conclusion

1. An issue arises, by reason of the sentence imposed on the Appellant, whether this Court has jurisdiction to hear the application for leave to appeal and, if so, what order should be made in the circumstances. Section 5(1) of the Criminal Appeal Act 1912 (NSW) provides: (1) A person convicted on indictment may appeal under this Act to the court: (a) against the person's conviction on any ground which involves a question of law alone, and (b) with the leave of the court, or upon the certificate of the judge of the court of trial that it is a fit case for appeal against the person's conviction on any ground of appeal which involves a question of fact alone, or question of mixed law and fact, or any other ground which appears to the court to be a sufficient ground of appeal, and (c) with the leave of the court against the sentence passed on the person's conviction. (emphasis added)
2. Section 10(5) of the Crimes (Sentencing Procedure) Act provides: (5) A person with respect to whom an order under this section is made has the same right to appeal on the ground that the person is not guilty of the offence as the person would have had if the person had been convicted of the offence.
3. Accordingly, this Court has jurisdiction despite the Appellant not having been convicted of the offence. Section 6 of the Criminal Appeal Act contemplates orders that the verdict of the jury can be set aside in cases where the verdict is unreasonable. That is the result here of the finding that the verdicts were inconsistent.
4. I propose the following orders:
5. Leave to appeal granted.
6. Uphold the appeal.
7. Set aside the verdict of the jury in relation to count 3 and direct a verdict of acquittal.

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