APPEAL - conviction - sexual intercourse without consent, s 61I Crimes Act 1900 (NSW) - trial by judge alone
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APPEAL - conviction - sexual intercourse without consent, s 61I Crimes Act 1900 (NSW) - trial by judge alone
Judgment (10 paragraphs)
[1]
The application for leave to appeal against sentence
I have set out in the opening paragraphs of these reasons the sentences imposed.
There was a small amount of additional material before the court for sentencing purposes.
The complainant provided and read a detailed victim impact statement, which attested to the long-term impact upon her of the offences. Although the victim impact statement cannot be treated as evidence in the usual sense, its contents were unsurprising and uncontroversial. The complainant was 34 years of age at the time of the offences. She had held the same employment for 14 years but, after some time, was forced to give up that employment. She has had to undergo continuing medical monitoring. She has suffered emotionally as a result of the offences.
Also available to the sentencing judge was a pre-sentence report concerning the appellant. He was born in December 1975 and was 35 years of age at the time of the offences. He had a lengthy criminal record, which relevantly included a number of convictions for assault, one (in 2002) for indecent assault, and one for being armed with intent to commit an indictable offence. At the time of the offences he was subject to a bond imposed in the Local Court. He has a longstanding history of drug and alcohol abuse, which he has made some efforts to address, although without success.
[2]
The Remarks on Sentence
The sentencing judge recounted at some length the circumstances of the offences. He had regard to the provisions of s 21A(2) of the Sentencing Procedure Act, which identifies (non-exhaustively) aggravating factors that (where they are known and applicable) a sentencing judge is required to take into account. By s 21A(2)(eb), that the offence was committed in the home of the victim or any other person is an aggravating factor. The sentencing judge held that that was the only aggravating factor derived from the catalogue in s 21A(2). He expressly declined, in the absence of supporting medical or psychological evidence, to make a finding for the purposes of s 21A(2)(g), that the injury or emotional harm caused by the offence were substantial.
With respect to the offences themselves, he held that they were "achieved with force rather than coercion" and that the force used was of "moderate proportion". He found that each offence fell into the mid-range of objective gravity of offences of the kind, the second (penile/vaginal intercourse) marginally more serious than the first. He noted the appellant's personal circumstances and criminal history. He made particular mention of what he referred to as "a prior sexual assault offence" (indecent assault).
He considered that the appellant had demonstrated little regard for opportunities given for his rehabilitation.
He had already imposed a fixed term of imprisonment for the breach of bond offence, of imprisonment for 6 months commencing on 18 July 2012. He proceeded to impose, in respect of the supply amphetamine charge, a sentence of a fixed term of imprisonment for 12 months, commencing on 18 January 2013, and sentences in respect of each of the sexual assault offences of non-parole periods of 6 years, the first subject to a balance of term of 2 years, and the second to a balance of term of 4 years and each partially accumulated on the preceding sentence. The total sentence imposed, as noted above, was of imprisonment for 12 years with a non-parole period of 8 years.
[3]
Grounds of the application
The grounds of the application for leave to appeal against sentence were pleaded as follows:
"1. The sentencing judge erred in sentencing the applicant on the basis that he had committed a prior sexual assault offence;
2. The sentencing judge erred in finding that the offence was aggravated by having occurred in a home occupied by Mr Hotham to which the complainant had resorted on a social occasion;
3. The sentencing judge erred in the sentence imposed for the s 166 offence;
4. The sentencing judge erred in his application of the principle of totality;
5. The sentencing judge erred in finding that the sexual assault offences fell within the mid-range for such offences;
6. The sentences imposed were unduly harsh and severe."
[4]
Ground 1
Senior counsel who appeared for the appellant accepted that Ground 1 was based on a false premise, and that the appellant had in fact been convicted of an offence of indecent assault. This ground can be rejected.
[5]
Ground 2
By this ground it was argued that s 21A(2)(eb) is inapplicable in the circumstances of this case. It was not easy to understand why this was so. Section 21A(2)(eb) expressly provides that an offence is committed in the home of the victim "or any other person" is an aggravating factor. Senior counsel appeared to argue that, because this event occurred in a home that was being used for the purposes of a party, the sub-paragraph was inapplicable. I would reject this proposition. It is contrary to the plain words of the sub-paragraph. In my opinion Ground 2 should be rejected.
[6]
Ground 3: the s 166 offence
The offence the subject of the s 166 certificate was an offence of supplying amphetamine to Ms Burt. That offence is subject to a maximum penalty of imprisonment for 15 years. However, it is an offence that can be dealt with in the Local Court, in which case the maximum penalty that may be imposed is 2 years. The argument was that the sentence imposed was half the Local Court jurisdictional limit, and was excessive having regard to the quantity of drug supplied and the circumstances in which it was supplied.
Reference was made to sentencing statistics which would suggest that it is relatively unusual for supply offences dealt with in the Local Court to result in the imposition of a fulltime custodial sentence, particularly where the sentence follows a plea of guilty.
That may be accepted, but the maximum penalty remains relevant. In any event, by reason of the partial concurrency of the offence of the sentence imposed in respect of the first of the sexual assault offences, the appellant will be required to serve only 6 months referable to this offence. In my opinion this ground should be rejected.
[7]
Ground 4: totality
Reference was made to a passage in the judgment of McHugh J in Postiglione v The Queen [1997] HCA 26; 189 CLR 295 as follows:
"… the court … adjust[s] the prima facie length of the sentences downward in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences."
It was submitted that:
"Correct application of the principle should have been achieved by a backdating of the commencing date of the accumulated sentences and as well as reducing all the sentences, and or the amounts they were accumulated by."
It was argued that, because the two sexual assault offences were committed within seconds of each other upon the same complainant and at the same location, they were part of the same criminal enterprise and could have been dealt with by concurrent sentences or by a more modest accumulation.
I accept none of these submissions. The two sexual assault offences, although committed in close proximity and time, and on the same victim, were separate and distinct offences, the second more brutal because it followed immediately on the first.
In my opinion each of the individual sentences appropriately reflected the objective gravity of the offence in respect of which it was imposed.
As an alternative, it was submitted that, pursuant to s 44(2) of the Sentencing Procedure Act, special circumstances ought to have been found resulting in a variation of the statutory proportion (75 per cent) between the non-parole period and the head sentence.
It was argued that, where sentences are accumulated, it is "conventional sentencing practice" to find special circumstances. That is true, but it is usually done in order to restore to the overall sentence the statutory proportions. In this case, the non-parole period is significantly less than 75 per cent of the head sentence. The appellant can have no justifiable complaint with respect to s 44(2).
[8]
Ground 5: mid-range of objective gravity
It was submitted that the finding that each of the sexual assault offences fell within the mid-range of objective gravity was inconsistent with the factual findings concerning the offences and "overestimated the objective criminality involved". Just where the inconsistency lay was not stated.
I would reject this proposition. It seems to me that, if anything, the finding that the offences were of the mid-range of objective gravity was rather generous to the appellant.
It was further submitted that a distinction should have been drawn between the objective criminality involved in the first and second offences, and that the judge should have set out his reasons for finding as he did.
I would also reject this. In fact, the judge found a minor difference between the objective gravity of the offences, but that is different to the objective criminality. His Honour gave adequate reasons for the conclusions that he drew.
Finally, it was submitted that the severity of the sentences did not reflect the findings of mid-range objective gravity. I would reject this also. The maximum sentence applicable is imprisonment for 14 years. The standard non-parole period of 7 years is a relevant guidepost: Muldrock v The Queen [2011] HCA 39; 244 CLR 120.
In my opinion the sentences imposed, and their structure, were well within the range available to the sentencing judge.
[9]
Ground 5: "the sentences imposed were unduly harsh and severe"
Little was advanced in support of this ground in addition to what had previously been put in relation to other grounds. It was argued that "the total sentence was a very heavy one as were the individual components".
When looked at as a sentence, imprisonment for 12 years with a non-parole period of 8 years could be perceived as a heavy sentence. Sentences do not stand in isolation, however. The sentence has to be looked at in the light of all of the circumstances of the offences, including their objective gravity. Seen in that light, these sentences, and the resultant overall sentence, were appropriate and not manifestly excessive.
I would reject all grounds advanced in support of the application for leave to appeal against sentence. I would, accordingly, grant leave to appeal against sentence, but dismiss the appeal.
The orders I propose are:
1. Appeal against conviction dismissed;
2. Leave granted to appeal against sentence;
3. Appeal against sentence dismissed.
DAVIES J: I agree with the orders proposed by Simpson J and her Honour's reasons for those orders. I also agree with the additional remarks of Basten JA.
Since one of the grounds of appeal is that the verdict was unsafe or unsound I wish to make the following remarks.
As has been noted, this was a trial by judge alone. It seems clear that this Court has jurisdiction to entertain an appeal on the basis that the verdict was unsound because of the operation of s 133 of the Criminal Procedure Act (set out in the judgment of Basten JA at [2]) on s 6(1) of the Criminal Appeal Act.
The more difficult consideration is the basis upon which such a ground should be dealt with where the trial was by judge alone. The principal authorities in the High Court, M v The Queen, Jones v The Queen (1997) 191 CLR 439, MFA v The Queen and SKA v The Queen were all appeals from jury trials. The principles stated in those cases were all posited on a jury verdict which can be regarded as inscrutable or opaque. That is not the case with a judge alone trial and is not the present case where detailed reasons have been provided, as is required by s 133.
In Kurtic v R (1996) 85 A Crim R 57 at 60 Hunt CJ at CL (with whom Grove J and Barr AJ agreed) said, in reliance on M v The Queen, that the test to be applied by this Court on the ground that the verdict was unsafe and unsatisfactory is the same whether the case was heard by a judge alone or with a jury. That principle and others from Kurtic were challenged in Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250. The appeal was upheld on a ground that concerned a failure of the trial judge to comply with the earlier equivalent of s 133(3). The Appellant was unsuccessful in showing that this Court had failed to make a proper analysis and evaluation of the evidence. Whether the approach to the unsafe and unsatisfactory ground was correctly stated by Hunt CJ at CL was not determined.
The issue of the manner in which this Court should consider such a ground from a judge alone trial was not argued by the parties to the present appeal and it would be inappropriate in the circumstances to embark upon further discussion of that matter except to say that how such a ground should be approached remains to be clarified.
The approach that Simpson J has taken at [200], and which is seemingly agreed by Basten JA at [6] given how the ground was argued, is that it is only necessary in the present case to consider the evidence relevant to the specific arguments raised on the appeal which are said to indicate error in relation to fact finding or determinations of law, or mixed questions of fact and law. I have indicated above my agreement with Simpson J's assessment of those matters in her Honour's reasons.
The trial judge made three significant findings. The first was that the accused was untruthful in his evidence. His Honour provided some brief reasons for that conclusion. Secondly, he found the complainant to be a compelling, honest and reliable witness. Thirdly, his Honour found the witnesses called in the Crown case to be compelling and truthful witnesses. His Honour's reasons for those last two findings were relatively brief also. Similar findings in Fleming were thought at [45] to be sufficient for the purpose.
Having read the evidence of the Crown witnesses and the accused I am left in no doubt that his Honour's assessments of the evidence of the accused, the complainant and the Crown witnesses were correct. In particular, his Honour's rejection of the accused's evidence was amply justified. The accused constantly contradicted the evidence he had given in chief when being cross-examined about the events of the night. Further, the evidence of the complainant was largely consistent with the evidence of the other witnesses (except Amanda Burt) who were present and observed the circumstances immediately before and after the assault.
I am entirely satisfied from the assessment of all of the evidence that it was open to the trial judge to convict the appellant.
[10]
Endnotes
[1999] HCA 68; 197 CLR 250.
[2002] HCA 2; 209 CLR 203.
[1998] HCA 68; 197 CLR 250 at [32].
Fleming at [30].
Fleming at [28].
The consent of the accused is a necessary precondition to an order for trial by judge alone: Criminal Procedure Act, s 132(3).
(1996) 186 CLR 427 at 447-448.
(1968) 53 Cr App R 150 at 153.
(1989) 168 CLR 79 at 85, 92 (Deane J) and 104-107 (McHugh J).
(1974) 131 CLR 534 at 553 (Gibbs J).
As explained by McHugh J in Longman at 105.
Kelleher at 553 (Gibbs J).
Inserted by the Crimes (Sexual Assault) Amendment Act 1981 (NSW).
Longman at 106.
Ibid, quoting Carr v The Queen (1988) 165 CLR 314 at 319 (Wilson and Dawson JJ).
See Crofts at 449, referring to R v Omarjee (1995) 79 A Crim R 355 at 368.
Evidence Act 1995 (NSW), s 164(1) and (2).
[2001] NSWCCA 260; 52 NSWLR 301 at [16].
Stewart at [38].
Stewart at [98].
At [99].
[2002] NSWCCA 60; 54 NSWLR 241 at [32].
Derived from R v Murray (1987) 11 NSWLR 12 (Lee J, Maxwell and Yeldham JJ agreeing), approved by the High Court in Robinson v The Queen [1999] HCA 42; 197 CLR 162 at [21]-[22].
Murray at 19D-E.
[2012] VSCA 306; 226 A Crim R 416 at [42] (Redlich, Osborn and Priest JJA).
Victorian Law Reform Commission, Sexual Offences Law and Procedure: Final Report (July 2004) at [7.132].
Attorney General's Department (NSW), Criminal Justice Sexual Offences Taskforce, Responding to sexual assault: the way forward (2006), Ch 6, Jury directions and sexual assault trials.
At p 103.
Judicial Commission of New South Wales, Criminal Trial Courts Bench Book, [3-610].
See Green v The Queen (1971) 126 CLR 28 at 31-32 (Barwick CJ, McTiernan and Owen JJ), reiterating statements from earlier authorities.
Tully v The Queen [2006] HCA 56; 230 CLR 234 at [161] (Crennan J, Heydon J agreeing) quoting Robinson v The Queen [1999] HCA 42; 197 CLR 162 at [20] (Gleeson CJ, McHugh, Kirby, Hayne and Callinan JJ).
Tully at [51], approved by Crennan J at [173], Heydon J agreeing.
Tully at [93].
Tully at [178].
Ibid (citations omitted).
Longman v The Queen [1989] HCA 60; 168 CLR 79 at 86.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 28 May 2015
R v BWT [2002] NSWCCA 60; 54 NSWLR 241
R v Murphy [2000] NSWCCA 297
R v Murray (1987) 11 NSWLR 12
R v Stewart [2001] NSWCCA 260; 52 NSWLR 301
Reg v Henry; Reg v Manning [1968] 50 Cr App R 150
Robinson v The Queen [1999] HCA 42; 197 CLR 162
SKA v The Queen [2011] HCA 13; 243 CLR 400
Tully v The Queen [2006] HCA 56; 230 CLR 234
Texts Cited: Attorney General's Department (NSW), Criminal Justice Sexual Offences Taskforce, Responding to Sexual Assault: The Way forward (2006), Ch 6, Jury directions and sexual assault trials
The judgment
Trial by judge alone is governed by the provisions of ss 132-133 of the Criminal Procedure Act. Section 133 provides:
"133 Verdict of single Judge
(1) A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury.
(2) A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied.
(3) If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter."
The fundamental importance of compliance with the requirements of sub-ss (1) and (2) of s 133 of the Criminal Procedure Act was emphasised by the High Court in Fleming v The Queen [1998] HCA 68; 197 CLR 250. (At the time Fleming was decided, the provisions that now appear in s 133 of the Criminal Procedure Act were to be found in s 33 of the same Act, part of Pt 9. The terms of the sections are identical.) Both sub-sections "are framed in terms of legal imperative"; failure to observe either of them constitutes error of law for the purposes of s 6(1) of the Criminal Appeal Act 1912 (NSW), and may also constitute miscarriage of justice (Fleming at [27]). Compliance with both provisions is an aspect of the principles of open justice, that justice must not only be done, but must be seen to be done (Fleming, [22], [32], [37]).
Bennett DCJ delivered judgment on 27 February 2013. In accordance with s 133(2) of the Criminal Procedure Act he set out the principles of law that he applied. The principles to which he referred included numerous reference to the onus and standard of proof. For example, he said:
"This is a criminal trial; the crown has the onus of proof to the standard beyond reasonable doubt in respect of every element of the charges.
The accused admitted that sexual intercourse occurred by fellatio and penile/vaginal intercourse, but claimed that both were consensual. The crown must prove in respect of each charge that the complainant did not consent to the sexual intercourse and that the accused knew so or was reckless as to whether she was consenting to the sexual intercourse …
It is not for the accused to disprove those elements, but for the crown to prove them beyond reasonable doubt. Suspicion is not a substitute for proof beyond reasonable doubt … If at the end of my deliberations I am not satisfied that the crown has established in respect of each offence, either of those essential matters beyond reasonable doubt, having taken into consideration the evidence both for the crown and for the accused, and after taking into consideration the submissions made to me by the crown and the accused counsel in their addresses, then it is my duty to bring in verdicts of not guilty because the crown failed to do what the law requires it to do.
It is vitally important that I clearly understand that the accused must be found not guilty if any one of the essential ingredients of the charges has not been proved to my satisfaction beyond reasonable doubt. It follows that if I am left unable to decide whether the crown has proved its case beyond reasonable doubt in relation to any such essential ingredient, even though I might suspect that the accused engaged without consent in the conduct upon which the charges are brought, the accused is entitled to the benefit of that doubt and I must find him not guilty.
…"
There are many other references throughout the judgment to the onus and standard of proof.
Ground 2: a "Robinson/Murray" direction
For the appellant to succeed on this ground of appeal it is necessary that he establish that a direction of the kind mentioned would have been required by "any Act or law" to be given in a jury trial: Criminal Procedure Act, s 133(3).
What is commonly called a "Murray direction" derives from the decision of this Court in R v Murray (1987) 11 NSWLR 12. Lee J, with whom Maxwell and Yeldham JJ agreed, said:
"Section 405C(2) [of the Crimes Act] has brought about the result that women are no longer, in the eyes of the law, to be put before juries as persons whose evidence requires corroboration before it is safe to act upon it. That concept which has been in the law for a long time has now gone. That, of course, does not mean that a judge cannot draw attention to the absence of corroborating testimony from witnesses who are shown by the evidence to have been present and able to offer corroboration of the girl's story, if it were true, nor does it preclude the judge from making such observations as he considers ought to be made about the credibility of the complainant's evidence, but always with the proviso, of course, that he must make it clear to the jury that those are his opinions and that the weight to be given to the testimony of the woman is entirely a matter for the jury. The fact that a judge does not comment upon the absence of corroboration of the complainant's evidence cannot, in my view, in the case of those offences to which s 405C applies now be made the basis of a criticism of his summing-up, but again this does not mean that the judge cannot or should not, as is done in all cases of serious crime, stress upon the jury the necessity for the jury to be satisfied beyond reasonable doubt of the truthfulness of the witness who stands alone as proof of the Crown case. In all cases of serious crime it is customary for judges to stress that where there is only one witness asserting the commission of the crime, the evidence of that witness must be scrutinised with great care before a conclusion is arrived at that a verdict of guilty should be brought in; but a direction of that kind does not of itself imply that the witness' evidence is unreliable.
There will be cases where the failure to bring home to the jury the position of the uncorroborated witness will undoubtedly lead to the verdict being set aside but that is a different matter altogether from requiring a direction that it is unsafe to act on the uncorroborated evidence of the complainant in a sex case." (italics added)
It is important to note that the only basis on which it is asserted in this appeal that a direction drawn from Murray ought to have been given was that the complainant's evidence of what she claimed took place behind closed doors in the bathroom was uncorroborated. No other circumstances were referred to as relevant to the asserted requirement of a direction in accordance with Murray. (The appellant opted to refer to other matters, such as evidence of the complainant's amphetamine use and alcohol intoxication in relation to the third ground of appeal, concerning s 165 of the Evidence Act, but did not put those circumstances as relevant to any requirement for a "Murray direction".) The submission was that, because the complainant's evidence as to what took place in the bathroom was uncorroborated, the judge ought to have directed himself, in terms, that he ought to scrutinise her evidence with great care before convicting the appellant.
Ground 4: evidence of flight as consciousness of guilt
This ground of appeal concerns the evidence that, when confronted by others at the party, the appellant jumped over a fence and ran away. The appellant's evidence as to this was to the following effect. He was confronted in the back yard by Ms Appleby, who was standing over him, "ready to fully attack me", and pushing him in the chest. He protested that he did not know what she was talking about and said that he had not done anything, put his hands up and began to walk backwards. One of the males joined the confrontation, and threatened to kill the appellant. Another male also joined in the attack. It was then that the appellant jumped the fence "and took off with them chasing". He said that he did this because:
"I was scared that the three of them were going to annihilate me."
He ran towards the police station.
In his final address, the Crown prosecutor is recorded as follows:
"Related to that is the evidence about the reaction of her companions in the house to her state of distress. Their response to what they saw of her your Honour was that they threatened violence to the accused in such a measure that he responded by fleeing from the premises and ran off down the street. Plainly her companions came to the conclusion on their assessment of [the complainant] that something very unfortunate, if I could use that expression had come upon her and that the accused was responsible."
This is not a submission that the appellant's conduct could be explained by consciousness of guilt. However, the Crown prosecutor went on to say:
"The accused tells your Honour that he attempted to calm the situation by saying 'Nothing happened I don't know what the problem is' but nonetheless your Honour he fled. On the crown case the only explanation for his flight is that what [the complainant] says about his sexual assault of her is truthful." (italics added)
This is a clear submission that the explanation for the appellant's flight was that he was conscious that he was guilty of the offences with which he was subsequently charged.
During the course of the final submissions of counsel for the appellant, the following exchange is recorded:
"HIS HONOUR: Well he might well have been on your submission fleeing from an unjust accusation bearing in mind that he had just had sexual intercourse with this young woman and he might well have inferred that he was going to be wrongly accused of having done something wrong in that regard.
[COUNSEL FOR THE APPELLANT]: There's a number of possibilities your Honour but … consciousness of guilt is not one of them I would submit your Honour.
HIS HONOUR: Well it could be … it could be but its not the only one."
There are well established principles that govern the directions that must be given to juries before they can act on evidence said to evince a consciousness of guilt: Edwards v The Queen [1993] HCA 63; 178 CLR 193.
Ground 5: the evidence of Detective MacLean
The complaint under Ground 5 is that the trial judge erred in rejecting, or discounting, the evidence of Detective MacLean. It is necessary to examine more of the relevant evidence than has been set out above. The specific issue concerns the circumstances in which the complainant entered the bathroom with the appellant.
In her evidence in chief, the transcript records the complainant's evidence as follows:
"My bag was sitting to the left as I went to pick it up the male that had walked inside with Amanda was still standing in the doorway of the bathroom and he said to me to come over to the bathroom he had something to show me so I walked over towards the bathroom and he kind of ushered me in had his hand on my back and shut the door quite quickly."
Detective MacLean gave evidence by reading from a statement that he had made on 1 June 2011. He said that he was called to the police station at about 8.00am on 15 January. On arrival, he had a conversation with Ms Appleby and Ms Burt. He then travelled to the Bathurst Hospital, where he spoke to the sexual assault counsellor, who "told me certain things". (He did not specify what the "certain things" were.) He was then introduced to the complainant, who he described as very upset, agitated and dishevelled. Detective MacLean said that he then had a conversation with the complainant which he recorded in his notebook. The evidence he gave of that conversation was:
"She said, 'This guy that lives there, Adam Hotham, he was my friend. We were just having a few drinks. There was me, him, his brother Heath, Rianna Appleby. My cousin turned up and had a couple of drinks. This guy just turned up with another guy. They were friends with Mandy. I don't even know how I got talking and he said he would give me some drugs, speed if I went into the bathroom. Michael tried to stop me. I was just tipsy drinking.
After Michael left, he slammed the door. The guy was about 6 feet tall. He started wanting to make out with me. I was a bit freaked out because I didn't even know the guy. He pulled down his pants and pulled out his freaking penis. He me to far out [sic]. He kept pushing his [sic] head down on him. The next thing he had me turned over. Then he was having sex with me and it started to hurt. I said 'Did you try and discourage him?' She said, 'I didn't even know, I didn't even want it to happen. After a while I was saying no.' I said 'What position were you in?' She said, 'On the floor when it first happened, I was standing in front of him before he was trying to force my head down and I was trying to pull my head away and he was just saying, 'Just suck it.' I said, 'How did your pants come to be down?' She said, 'He pulled them down.' I said, 'When you say he was having sex with you, was that vaginally?' She said, 'Yes.' I said, 'How long did it last for?' She said, 'A few minutes.' I said, 'Did he use a condom?' She said, 'No.' I said, 'Did he ejaculate?' She said, 'I don't think so, he walked out first. The next thing I walked out of the bathroom and spoke to Michael and Rianna. I was upset and crying and they knew something was wrong. I didn't see him again after that.' I said, 'do you feel that he had sex with you against your will?' She said, 'Yes.'
I then left the hospital." (italics added)
Ground 7: verdict was unsafe or unsound
Ground 7 complains that the verdict of the judge is "unsafe and unsound" - that is, that it is unreasonable and cannot be supported on the evidence: see Criminal Appeal Act, s 6(1).
The principles to be applied in the determination of such a ground are well known and well established: see M v The Queen [1994] HCA 63; 181 CLR 487; MFA; SKA v The Queen [2011] HCA 13; 243 CLR 400. It is necessary that this Court make its own independent assessment of the evidence, and determine whether (in a jury trial) it was open to the jury to convict. In this appeal, it was not suggested that the ground is not available where the trial is by judge alone, notwithstanding that the judge is obliged to give reasons for the decision. Without deciding, I will proceed on the basis that the ground is available. The statement of reasons may make it easier to understand the basis on which the verdict was reached.
In outlining the evidence below, I will attempt to confine myself to mentioning the evidence relevant to the specific arguments raised on appeal. I exclude evidence such as evidence that the appellant's DNA was found in the complainant's vagina, because sexual intercourse with the complainant was confirmed by him.
The argument advanced on behalf of the appellant raised a number of factual matters which, it was argued, called into question the sufficiency of the evidence to support the finding of guilt. It is convenient to identify those factual matters at this point. They are:
in what circumstances, and for what reason, the complainant entered the bathroom with the appellant;
what happened while the complainant and the appellant were in the bathroom;
the effect on the complainant's reliability of the complainant's earlier consumption of amphetamine;
the effect on the complainant's reliability of her consumption of alcohol;
that medical examination disclosed no evidence of injury to the complainant; and
what happened immediately after the events in the bathroom.
A significant part of what was relied upon was the extent (if any) to which the complainant was affected by the consumption of drugs or alcohol. For this purpose, significant reliance was placed upon the evidence of Ms Burt. For my part, having regard to the answers given by Ms Burt to which I have referred above, I could place no reliance upon her evidence at all. This also appears to have been the view of the trial judge, who described her as presenting "something of a challenge to the Crown". He considered that she had been under the influence of amphetamines and excessive quantities of alcohol which she had been consuming all day. She said as much herself. A reading of the transcript of her evidence establishes that her perceptions and recollections were significantly distorted by her intoxication.
His Honour then summarised the Crown case fairly briefly and the appellant's case at some length. He followed this by stating the findings of fact on which he relied. He began by finding that the appellant was untruthful in his evidence and said:
"He has taken some facts that were the truth and has woven a web of lies around them. I do not accept that [sic] attributions that he has given to the complainant."
He then said:
"A matter which I found of some note was that Ms Amanda Burt, an experienced user of amphetamines, taking it in paste form as she did, was compelled to take a drink immediately because it was burning her mouth, and yet the same substance administered to the complainant did not prompt any such reaction. Indeed, rather than cause her any discomfort or distress, according to the accused's version she proceeded immediately as a seductress willing to perform fellatio and have unprotected sex with this person that she had met this night for the first time, with the implication in what he had to say that she found him so attractive that she pursued him for that purpose, and was so disappointed when he rebuffed her after he had taken his pleasure that she chose to make false allegations about the sexual intercourse to the extent alleging that it was without her consent.
I reject the whole proposition as preposterous."
He then again reminded himself that, notwithstanding that he disbelieved the appellant, it remained his obligation to assess the evidence and determine whether or not it persuaded him beyond reasonable doubt of the guilt of the appellant.
By contrast with his finding concerning the credibility of the appellant, his Honour found the complainant to be "a compelling, honest and reliable witness". He made similar findings concerning other Crown witnesses. However, the approach he took to the evidence of Ms Burt was different. Of her, he said:
"Amanda Burt presented something of a challenge to the Crown in this case. However, it was in my judgment an evening when she was under the influence of amphetamines that she had been consuming all of the day and into the evening, and she had been consuming excessive quantities of alcohol. Her memory of the event was so tainted that at the very beginning of the evidence she had confused the fact that the complainant and Ms Appleby had gone to the Rankin Street address to look at the puppies. Her evidence was that she and others had in fact gone to their home to look at puppies."
Another witness of whose evidence Bennett DCJ was sceptical was Detective MacLean. He considered it unlikely that what was attributed to the complainant in Detective MacLean's statement accurately reflected what the complainant had said to him.
On the basis of these and other relevant findings, Bennett DCJ found the appellant guilty of both counts on the indictment.
The term "Murray direction" tends to be loosely used, and to be undefined. As I understand it, it is most commonly used to refer to a direction that, in any case in which the sole evidence of the commission of a crime is that of a single witness, the evidence of that witness must be scrutinised with great care. It is in that sense that I use the term "Murray direction" in these reasons.
The question that now arises is whether a Murray direction (or a variant of it) would have been required in a jury trial. If so, the failure of the trial judge to record the direction and expressly take it into account constitutes error fatal to the conviction. That conclusion is an inevitable result of the application of s 133(3): Fleming, at [33].
Failure of a judge exercising jurisdiction under s 132 of the Criminal Procedure Act to record, in the reasons for verdict, a warning that would have been required in a jury trial is not excused by an assumption, or even an inference, that the judge was aware of the law, and could be assumed to have taken the warning into account (Fleming, [37]-[38]).
At the time Murray was decided, s 405C(2) of the Crimes Act provided:
"On the trial of a person for a prescribed sexual offence, the Judge is not required by any rule of law or practice to give, in relation to any offence of which the person is liable to be convicted on the charge for the prescribed sexual offence, a warning to the jury to the effect that it is unsafe to convict the person on the uncorroborated evidence of the person upon whom the offence is alleged to have been committed."
It was this to which Lee J was referring in the first paragraph, and the first italicised sentence, in the extract above.
Prior to the enactment of s 405C, there was an entrenched rule of practice that, in cases of alleged sexual assault by a male on a female, a direction was given to the jury that it was dangerous to convict on the uncorroborated evidence of the complainant: Carr v The Queen [1988] HCA 47; 165 CLR 314 at 318 (in Longman v The Queen [1989] HCA 60; 168 CLR 79, at p 105, McHugh J said that the requirement was gender neutral, although it nevertheless applied disproportionately to women, since women were overwhelmingly the victims of sexual offences). The explanation given was that judicial experience had identified the uncorroborated evidence of an alleged victim of a sexual offence as one of three classes of evidence calling for such a direction. The other classes were the uncorroborated evidence of an accomplice, and the sworn evidence of a child (Carr, at pp 318-319). The "rule" was discussed by Deane J and McHugh J in Longman at pp 91-94, and pp 104-106 respectively; and see Crofts v The Queen [1996] HCA 22; 186 CLR 427.
It was in order to abolish that rule of practice that s 405C was enacted in NSW in 1981. Similar, but not always identical, legislation was enacted in other States. It is to be observed that s 405C fell far short of forbidding any direction in accordance with Carr and other cases; it did no more than eliminate the requirement that had previously been believed to exist. It did not abolish the discretion of a judge to comment on the circumstances of a particular case: Longman, per Brennan and Toohey JJ.
The effect of Murray was to endorse a narrow construction of s 405C, so that it applied to a direction in general terms that there existed a danger of acting on the uncorroborated evidence of alleged victims of sexual offences as a class. This interpretation was confirmed by the High Court in Longman at p 87. It thus remained open to a trial judge to direct the jury in the circumstances of a particular case that where there was only one witness asserting the commission of a crime, the evidence of that witness must be scrutinised with great care before the accused person could be convicted. Moreover, the statement that such a direction was "customary" "in all cases of serious crime" appears to have been widely interpreted as mandating such a direction. That may have been to read more into the statement than Lee J intended.
The opening words of the second paragraph of the extract from Murray should not be overlooked. That "there will be cases" where the failure to bring home to the jury the position of the uncorroborated witness will lead to the verdict being set aside has the corollary that there will be cases where that result does not eventuate. In other words, notwithstanding that a direction as envisaged in Murray is "customary", such a direction is not necessarily "required" (the use of the word "customary" as distinct from "required" supports that view) and its absence will not necessarily be fatal to the conviction.
Murray has been referred to by the High Court on six occasions. One of those references (Crofts) concerns a different principle stated in Murray (directions to be given to a jury "in regard to the lateness of a complaint"). Another (MFA v The Queen [2002] HCA 53; 213 CLR 606) contained a mere acknowledgment of the abolition of the requirement for corroboration of minors as to sexual offences. It is useful to examine what the High Court has said in other cases about the extracted passage.
A "Longman direction" is commonly taken to refer to a direction to be given in cases (frequently of alleged sexual offending, but not necessarily so) where there has been a lengthy delay in the disclosure of the conduct the subject of the charges. In fact, Longman has a greater significance than that. A (if not the) central proposition that emerged from Longman is:
"Apart from the special rule, the general law requires a warning to be given whenever a warning is necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case."
In Longman, the appellant was charged in Western Australia with two sexual offences against a girl (his step-daughter) under 14 years of age. The offences were alleged to have been committed 26 and 22 years earlier, and to have been committed when the complainant was asleep. The appellant was convicted. The relevant legislation (s 36BE of the Evidence Act 1906 (WA)) contained a provision, in par (a) in the same terms as s 405C. However, a second paragraph provided:
"(b) the judge shall not give a warning to the jury of the kind described in para (a) unless satisfied that such a warning is justified in the circumstances."
I will return to consider the interpretation of par (b).
A number of factors were advanced in Longman as justifying a warning under par (b). They were the long period of time that had elapsed since the events giving rise to the charges; the lack of any satisfactory reason for the absence of complaint to the complainant's mother; the appellant's inability, given the passage of time, to support his denial of the allegation; the ease of making and the difficulty of disproving such allegations; and, finally, the absence of any corroborative evidence.
In a joint judgment, Brennan, Dawson and Toohey JJ adopted the construction given by Lee J in Murray to s 405C of the NSW Crimes Act, and held that, in the circumstances of Longman, a warning was required. The circumstances identified by their Honours were the delay in prosecution, the nature of the allegations, the age of the complainant at the time of the events alleged, the alleged awakening of a sleeping child by indecent acts, and the absence of complaint either to the applicant or to the complainant's mother. In the judgment of Deane J, a direction was called for because of the combination of the circumstances of the alleged offences and the possible effect, in the context of those circumstances of what he called "the extraordinary lapse of time before complaint and trial". In the judgment of McHugh J, the jury should have been warned that, in evaluating the complainant's evidence, they had to bear in mind that it was uncorroborated, that over 20 years had elapsed since the last of the alleged offences occurred, that experience has shown that human recollection, and particularly the recollection of events occurring in childhood, is frequently erroneous and liable to distortion by reason of various factors, that the likelihood of error increases with delay, that the complainant testified concerning incidents occurring to her as a young child after she had awoken and pretended to be asleep, that no complaint was made to her mother, and that, by reason of the delay and lack of specificity as to the dates, the defence was unable to examine the circumstances of the alleged offences.
McHugh J said:
"If, however, the evidence discloses any circumstance which suggests that the evidence of the complainant may be unreliable, the trial judge has a duty to make the jury aware of the dangers concerning that person's evidence. As in any case where the prosecution depends solely upon the evidence of one witness, the trial judge is entitled to point out that the evidence of the complainant requires careful scrutiny before acting upon it. But cases will frequently arise where the circumstances will require a stronger warning. The terms of that warning will depend upon the particular circumstances of the case [citing Carr at p 318]". (italics added)
I interpolate that McHugh J drew a significant distinction: where the evidence discloses circumstances which suggest unreliability on the part of the complainant the trial judge "has a duty" to draw that to the attention of the jury; but where the prosecution depends solely on the evidence of one witness, the trial judge "is entitled" to give the direction. What circumstances call for a direction, and the terms of the warning, depend upon the particular facts of the individual case.
Although the construction given to s 405C in Murray was adopted in Longman (in the joint judgment), there is no express endorsement of any proposition that, in all cases where there is only one witness asserting the commission of a crime, the evidence of that witness must be scrutinised with great care.
The next case in which the High Court made reference (although in passing) to Murray was Fleming (supra). In Fleming, the appellant, who was a school deputy principal and mathematics teacher, was charged with sexual offences against one of his students. He was tried by judge alone (under the provisions of the then s 33 of the Criminal Procedure Act). There was evidence to the effect that the complainant was a regular visitor to his office, to discuss emotional problems arising from an eating disorder, and a stressful family situation. The prosecution alleged that the complainant was infatuated with the appellant and had been a willing participant in the offences. (By reason of her age, consent was not an issue.) As is frequently the case where sexual offences are alleged, the evidence was that these offences had been committed outside the appellant's office, but, it may be inferred, away from other people. Thus, the complainant's evidence was uncorroborated. The trial judge's direction to himself was limited to:
"The Crown case relies solely upon the complainant. If I am unable to accept her evidence beyond reasonable doubt, I must acquit the accused."
This gave rise to a ground of appeal that the trial judge ought to have directed himself (as, it was submitted, he would have been obliged to direct a jury) that the evidence of the complainant was to be scrutinised with great care before the appellant could be convicted. That, however, was not only because the complainant's evidence was uncorroborated - her age, emotional instability and infatuation with the appellant were cited as circumstances calling for such a direction.
The High Court accepted that submission, and held that, in the circumstances, there was a failure to comply with s 33(3) by not including reference to the warning that it would have been necessary to give to a jury. There is nothing in the judgment that suggests that, absent the other circumstances, the mere fact that the complainant's evidence was uncorroborated would have called for such a warning.
In Robinson v The Queen [1999] HCA 42; 197 CLR 162, the relevant legislative provision was s 632 of the Criminal Code (Qld). That section then provided:
"(1) A person may be convicted of an offence on the uncorroborated testimony of 1 witness, unless this Code expressly provides to the contrary.
(2) On the trial of a person for an offence, a judge is not required by any rule of law or practice to warn the jury that it is unsafe to convict the accused on the uncorroborated testimony of 1 witness.
(3) Subs (1) or subs (2) does not prevent a judge from making a comment on the evidence given in the trial that it is appropriate to make in the interests of justice, but the judge must not warn or suggest in any way to the jury that the law regards any class of complainants as unreliable witnesses."
In Robinson the allegation was that the appellant, a scout leader, and the complainant, a scout, were sleeping in a garage at the complainant's home as a substitute for a camping out that had been planned but abandoned due to weather. The complainant alleged that, while he was asleep, the appellant committed two sexual offences upon him. The complainant did not mention this to his mother until three years later. The appellant gave evidence in the trial, denying the allegations. Of s 632(2) the High Court said:
"20 Once it is understood that s 632(2) is not aimed at, and does not abrogate, the general requirement to give a warning whenever it is necessary to do so in order to avoid a risk of miscarriage of justice arising from the circumstances of the case, but is directed to the warnings required by the common law to be given in relation to certain categories of evidence, its relationship to the concluding words of s 632(3) becomes clear, although the symmetry between the two provisions is not perfect.
21 Subs (2) negates a requirement, either generally or in relation to particular classes of case, to warn a jury 'that it is unsafe to convict the accused on the uncorroborated testimony of 1 witness'. That does not mean, however, that in a particular case there may not be matters personal to the uncorroborated witness upon whom the Crown relies, or matters relating to the circumstances, which bring into operation the general requirement considered in Longman. Moreover, the very nature of the prosecution's onus of proof may require a judge to advert to the absence of corroboration."
The Court quoted the two paragraphs from Murray that have been extracted above and went on to identify the particular features in Robinson, which, it held, demanded a suitable warning. These included the age of the complainant at the time of the alleged offences, the long period that had elapsed before complaint (rendering it impossible for medical examination to verify or falsify the complaint), some inconsistency in some aspects of the complainant's evidence, the absence of any conversation on the evening in question or later between the complainant and the appellant about the events of which the complainant complained, the absence of any threat or warning to the complainant not to reveal what had happened, the maintenance of "a harmonious relationship" between the complainant and the appellant and the absence of any suggestion of earlier or later misconduct by the appellant towards the complainant. The High Court held that these matters, taken together with the absence of corroboration:
"… created a perceptible risk of a miscarriage of justice which required a warning of a kind which brought home to the jury the need to scrutinise with great care the evidence of the complainant before arriving at a conclusion of guilt."
The warning should have referred to the circumstances identified, and should have been expressed in terms which made clear the caution to be exercised in the light of those circumstances. There is nothing in the judgment that suggested that absence of corroboration alone was a circumstance that called for such a warning.
Tully v The Queen [2006] HCA 56; 230 CLR 234 also arose out of a prosecution under s 632 of the Criminal Code of Queensland. There had been, by that time, a relatively minor amendment to s 632. In place of the word "any class of complainants" in the closing clause of sub-s (3), the words "any class of persons" was substituted.
The appellant in Tully was charged with 10 sexual offences including vaginal penetration of a child aged 9 or 10 years. The offences were alleged to have been committed in 1999 and early 2000, at a time when the appellant was in a relationship with the complainant's mother. The complainant did not tell her mother of her allegations until April 2002, by which time the relationship with the appellant had ended and the mother, the complainant and the complainant's brother were living in NSW.
There was no corroboration of the complainant's allegations, save for a description given by the complainant of certain physical characteristics of the appellant's genital area and buttocks. There were other circumstances relevant to the assessment of the evidence given by the complainant. For example, there was medical evidence that (notwithstanding the complainant's allegations of penetration) her hymen was intact.
Again, it was contended that the trial miscarried by reason of the absence of an appropriate warning concerning the reliability of the complainant.
The High Court divided as to the result. Kirby and Hayne JJ would have allowed the appeal and ordered a new trial on the basis that a warning was required but not given. Kirby J identified those features as the very young age of the complainant at the time of the alleged offences, the circumstances of her mother's new and ultimately temporary relationship with the appellant which could engender animosity and jealousy on the part of the complainant towards the appellant; the long delay between the alleged offences and the complainant's statement to her mother about the offences; the explanations given for the delay; the inconsistencies between various accounts given by the complainant; and inconsistency between the complainant's allegations of sexual penetration and the medical evidence of her intact hymen. Hayne J took a similar view.
It may here be noted that, although Murray was referred to by Kirby J, and was referred to in authorities (Robinson, Longman) cited by Hayne J, neither concluded that the absence of corroboration (at least, of itself) constituted a need for a cautionary direction.
Callinan J, with whom Heydon and Crennan JJ agreed, took a different view, and considered that the circumstances did not call for a direction ("a Longman direction").
What emerges from this review is that, in every case where it was held by the High Court that the verdict of guilty (whether verdict of a jury or judge alone) was flawed by reason of the failure to give a warning to the effect that the complainant's evidence must be scrutinised with great care, there were circumstances other than the absence of corroboration of the complainant's evidence that led to that conclusion. There is no case, post s 405C, in which it has been held that the failure to give a warning (to a jury, or, notionally to the trial judge) to the effect that the absence of corroboration alone calls for a direction in accordance with Murray.
In Longman, Deane J observed that:
"There remain serious problems about any general rule requiring that, in a case of a sexual assault, an unqualified warning be given to the effect that it is dangerous or unsafe to convict on the uncorroborated testimony of a complainant. The main problem is that the universal proposition embodied in such a rule is simply unjustified."
Such a direction, even when s 405C was the relevant legislation, was not "required" by any statute or principle of law. That would be sufficient to dispose of this ground of appeal, since s 133(3) of the Criminal Procedure Act obliges the judge to take such a warning into account only where it is a legal requirement. But there is a further, and more powerful, reason why that is so.
All of the above cases were decided in the context of legislative regimes in which s 405C, or a close equivalent, operated. But in 2007 s 405C was repealed. Section 294AA was introduced into the Criminal Procedure Act. It is framed in imperative terms. It provides:
"294AA Warning to be given by Judge in relation to complainants' evidence
(1) A judge in any proceedings to which this Division applies must not warn a jury, or make any suggestion to a jury, that complainants as a class are unreliable witnesses.
(2) Without limiting subsection (1), that subsection prohibits a warning to a jury of the danger of convicting on the uncorroborated evidence of any complainant.
(3) Sections 164 and 165 of the Evidence Act 1995 are subject to this section." (italics added)
Section 294AA(2) expressly prohibits a warning to the jury of the danger of convicting on the uncorroborated evidence of "any complainant". All that can be taken from this form of words is that the legislature intended to prohibit warnings that call into question (by reason only of absence of corroboration) the reliability not only of complainants as a class, but also of a complainant in any particular case.
The question of the possible effect of s 294AA on the statement in Murray was raised by the Court and the parties were given an opportunity to make further submissions. The parties were united in their response. They agreed that s 294AA has no bearing on whether or not a "Murray direction" is called for. I cannot accept that position.
It will be recalled (see [114] above] that the relevant legislation in Longman (s 36BE of the Evidence Act (WA)) contained a supplementary provision (said to be "unique" in legislation of this sort). Paragraph (b) prohibited the giving of a warning of the kind described in par (a) "unless [the judge was] satisfied that such a warning was justified in the circumstances".
In considering the correct construction of par (b), Brennan, Dawson and Toohey JJ said that a judge could not be satisfied of the need for a warning if there was nothing in the case to require a warning other than the circumstance that proof of the offence rests upon the uncorroborated evidence of the alleged victim. (Their Honours went on to give what they acknowledged to be a somewhat artificial, but necessary, construction of that paragraph, but that is not relevant here.)
A "Murray direction", based only on the absence of corroboration, is, in my opinion, tantamount to a direction that it would be dangerous to convict on the uncorroborated evidence of the complainant.
The injunction contained in s 294AA is directed to what is, in substance, the content of the Carr direction. If the direction given suggests that merely - I emphasise merely - because a complainant's evidence is uncorroborated, it would be, on that account, dangerous to convict, it transgresses s 294AA(2). The critical aspect of s 294AA is the substance of the direction that is prohibited. It cannot be avoided by switching from one linguistic formula ("dangerous to convict") to another ("scrutinise the evidence with great care"). However formulated, the substance of the direction is the same - that, merely because the evidence is uncorroborated, it would be unsafe for the jury to act upon it.
In this respect, in Longman, Deane J said:
"I am prepared to assume, in the absence of argument to the contrary, that a warning to the jury of the need, in the particular circumstances of the case, to scrutinize the evidence of the complainant with great care and to exercise considerable caution before convicting the applicant upon the basis of it alone would have been a warning of the kind referred to in s 36BE(1)(a) even though it did not involve the use of the word 'danger'."
None of this has the effect that an appropriate direction, as envisaged in Longman, cannot be given in prosecutions for sexual offences. The emphasis in Longman, and in Robinson and Tully, was that directions appropriate to the circumstances of the individual case are to be given, and were available to be given under s 405C and its equivalent in other jurisdictions. If the evidence in any case is such as to call for a warning, or a specific direction, as to weaknesses or deficiencies in the evidence, particularly if they are weaknesses or deficiencies that are apparent to the judge but might not be so apparent to the jury, then the judge is entitled, and may be obliged, to draw that to the jury's attention. Delay in bringing proceedings is one such circumstance that calls for a direction. Such a direction does not transgress s 294AA; it discharges the judge's duty to direct the jury in accordance with the circumstances of the case, and not according to suppositions about the reliability of any class of witnesses.
Where, for example, the evidence shows that others were present and were or may have been in a position to observe what took place, and were not called to give evidence, there is real merit in drawing attention to that fact. The absence of corroboration where corroborative witnesses might have been available is significant: see MFA, at [67].
But, as has frequently been observed, sexual offences typically are committed in private, when only the perpetrator and the victim are present. In that case, a direction concerning the absence of corroboration has little to do except suggest unreliability on the part of the complainant.
Since it was only the absence of corroboration that was said to give rise to the requirement of a "Murray direction", this ground must fail. Not only was such a direction not required, it was prohibited by s 294AA(2).
I would reject this ground of appeal.
The only reference in the judgment to this circumstance appears in the recital of the evidence in the Crown case, and is as follows:
"He was confronted by others who were at the party. He denied wrongdoing and then fled from the property, jumping a fence to make his escape, and ran off with some of the men from the party in pursuit."
There is a lengthy section in the judgment under the heading "Findings". Nothing in that section makes any reference to the appellant's flight from the scene. It is apparent that the trial judge drew no inferences from his flight. His exchange with counsel for the appellant made it clear that he was well aware of the Edwards principles, and that he did not propose to act on any inference arising from the appellant's flight. Edwards requires a warning to be given in circumstances where a jury is invited to, and might, draw inferences adverse to an accused from evidence of flight. Neither Edwards, nor s 133(3) requires a judge to record a warning concerning inferences on which he or she is not proposing to act. Although it may have been better had he directed attention to the submissions made by the Crown prosecutor, given that he did not act on them, or draw any inferences from the appellant's conduct, it was not necessary that the judge state those principles.
I would reject Ground 4.
There was no evidence as to the circumstances in which Detective MacLean recorded the conversation that he said he had with the complainant - that is, for example, whether it was simultaneously taken down, or noted after the conversation with her, and if the latter, how much after. In cross-examination Detective MacLean agreed that, although he had not recorded it in his notebook, he had asked the complainant whether she had taken any drugs, and that she told him that she had not. The absence of any reference to the question and answer about drug taking suggests that Detective MacLean may have made the notes in his notebook later. It was common ground that, in whatever form the notes took, they were not provided to the complainant for verification, a further indication that the conversation might have been noted at a later time.
The content of Detective MacLean's statement had been put to the complainant in cross-examination. It was specifically put to her that she had told Detective MacLean:
"I don't even know how I got talking and he said he would give me some drugs if I went into the bathroom."
She said that she could not recall having said that to Detective MacLean, but also said (as to the fact, distinct from what she had told the detective):
"I don't remember it being part of anything to do with drugs."
There is, therefore, some possible inconsistency between the evidence given by the complainant, and what Detective MacLean recorded her as having said to him whilst at the hospital.
The trial judge was dubious as to the accuracy of Detective MacLean's statement. He recorded the statement in full, and said:
"I find it extraordinary that the conversation which the detective has described would have occurred with such clarity, describing the sequence in the manner as it appears with information coming solely from the complainant, bearing in mind the balance of the evidence which I accept regarding her distress and her reticence when it came to describing what occurred, and in light of the assistance that was provided to her by others including, it appears, Amanda Burt.
It is at least possible in my view that the detective has made a record of questions and answers drawing upon all of the sources of information that he had. This is a document that was not put before the complainant at any time to allow her to read and adopt it as her own. I do not find that as evidence of representations upon which I would be prepared to act as complaint evidence pursuant to s 66 of the Evidence Act. I do not find it evidence that causes me to doubt the veracity or the reliability of the evidence given by the complainant or the other witnesses called who described her demeanour after the event."
The last was a reference to evidence given by a number of witnesses concerning the emotional condition of the complainant after she emerged from the bathroom. This evidence included medical evidence when the complainant was examined some time later. His Honour accepted that the complainant was "traumatised".
The submission made on behalf of the appellant was that:
"It was not open to the trial judge to reject, diminish or ignore this evidence which clearly cast doubt on the reliability of the complainant."
Reliance was placed upon the decision of this Court in R v Murphy [2000] NSWCCA 297 at [83]-[88].
That reliance was misplaced. Murphy involved a trial by judge alone of allegations of sexual offences against a 14 year old girl. There was evidence (denied by the complainant) that suggested that she may have been affected by drugs or alcohol such as to call in question the reliability of her evidence. It appears that no findings accepting or rejecting the evidence was made. Kirby J said that the trial judge made no reference to the potential "for unreliability under s 165(1)(c))", and that "I would have expected him to do so".
This is not a case of the omission of consideration of a circumstance that might affect the reliability of evidence. Here, Bennett DCJ doubted the accuracy of the account given by Detective MacLean of the complainant's statement on the morning of the offence.
In my opinion, the doubts expressed by Bennett DCJ were justified. It will be recalled that Detective MacLean was not asked, and did not say, how or when he recorded the statement he attributed to the complainant. I have already observed that there is omitted from that purported account any reference to the question about the complainant's consumption of drugs. The italicised sentence in the first paragraph is inconsistent with the appellant's denial of having used drugs. Detective MacLean had not shown the statement (or his notebook) to the complainant, or offered her the opportunity to read and adopt whatever he had written reasonably contemporaneously with his conversation with her. Prior to speaking to the complainant, he had spoken to Ms Appleby and Ms Burt, as well as the sexual assault counsellor. The statement from which the Detective read was made on 1 June, 4½ months after the interviews. It may well have been a compilation of notes made by him when, or after, interviewing any or all of Ms Appleby, Ms Burt, and the sexual assault counsellor, as well as the complainant. There is simply no evidence. The sentence in question is consistent with Ms Burt's account of events but as has been seen (and will be expanded below) Ms Burt's evidence was plainly unreliable. Detective MacLean's notebook (in which the most contemporaneous account or record might be taken to have been made) was not produced.
The critical issue in respect of the complainant's reliability concerns what really took place when the two had entered the bathroom and the door was closed. In that respect, the complainant's evidence was entirely consistent with what Detective MacLean recorded her as telling him. Of course, if it were accepted that her real reason for going into the bathroom was to be given drugs, that would have an impact on her credibility, and her assertions concerning what happened in the bathroom would have to be examined in the light of a judgment as to the extent to which her credibility was damaged.
In evaluating Detective MacLean's evidence, the trial judge was doing precisely what a tribunal of fact in a criminal trial is required to do. The approach taken by him was not to speculate about the evidence of Detective MacLean, but to bring his knowledge and understanding of human affairs to bear in the assessment of the evidence. That is what he did.
I would reject Ground 5 of the appeal.
The other evidence of the complainant's use of drugs and alcohol was given by her, and is that she had had one shot glass containing amphetamine, which had little effect on her other than to make her more awake, and had drunk some of the bourbon to the point that she was "a little bit tipsy". That accorded with the evidence of Ms Appleby.
Another point taken on behalf of the appellant was that Detective MacLean had recorded an admission by the complainant that she had gone into the bathroom with the appellant for the specific purpose of obtaining drugs. I have already dealt with why his Honour was entitled to reject this evidence. That being so, I do not regard it as casting doubt upon the verdict.
Finally, the appellant relies upon what is said to be conflicting evidence of what occurred in the immediate aftermath of the complainant's entry into the bathroom. It is true that there are some different versions. As his Honour noted, in the circumstances of this case, it is hardly surprising that there would be some difference in the accounts of the events. What is consistent in every version is the description of the complainant as in a state of severe distress. Moreover, she made immediate complaint. The doctor who examined the complainant at the hospital noted that she was "tearful, depressed, quiet".
I am satisfied that it was open to the trial judge to find the appellant guilty of the offence charged. Having made an independent review of the evidence, I am satisfied beyond reasonable doubt of his guilt.