Jones v R

Dodds v R [2009] NSWCCA 78 CASES CITED : R v Appellant W, Court of Criminal Appeal, 9 March 1990, unreported R v Sloane [2001] NSWCCA 421; 126 A Crim R 188

TEXTS CITED: Who is telling the truth? Psychology, common sense and the law, McClellan CJ at CL, (2006) 80 ALJ 655

PARTIES: Stephen Reginald Jones (Applicant) Regina (Respondent)

COUNSEL: Mr R Button SC (Applicant) Ms M Cinque (Respondent)

SOLICITORS: Legal Aid Commission Solicitor for Public Prosecutions

IN THE COURT OF CRIMINAL APPEAL 2008/6200

McCLELLAN CJ at CL SIMPSON J R A HULME J

4 June 2010 Stephen Reginald JONES v Regina Judgment

1 McCLELLAN CJ at CL: I agree with R A Hulme J. 2 SIMPSON J: I agree with R A Hulme J. 3 R A HULME J: This is an application for leave to appeal against conviction pursuant to s 5(1)(b) Criminal Appeal Act 1912. The applicant was arraigned before his Honour Judge Neilson and a jury in the District Court at Campbelltown upon an indictment alleging three offences.

4 The first count alleged that between 17 and 20 February 2007 at Merrylands he had sexual intercourse with WA without her consent, knowing that she was not consenting. The second count alleged that on 19 February 2007 he stole $100 from WA. The third count alleged that on 19 February 2007 he attempted to have sexual intercourse with WA without her consent, knowing that she was not consenting.

5 On 6 May 2009 the jury returned verdicts of guilty in respect of the first two counts and not guilty in respect of the third count. The applicant was subsequently sentenced to terms of imprisonment. He seeks leave to appeal against the convictions on a single ground, namely that the verdicts should be set aside on the ground that they are unreasonable, or cannot be supported, having regard to the evidence. There is no application for leave to appeal against sentence.

6 The prosecution case was that the applicant and WA met on the morning of Sunday 18 February 2007 at a liquor store in Merrylands. WA accepted an invitation from the applicant to return to his room in a boarding house for the purpose of having a drink. There she drank to excess and lapsed in and out of consciousness until she was taken to hospital by ambulance late in the afternoon of the following day.

7 WA alleged that during the time that she was in the applicant's room he had penile/vaginal sexual intercourse with her without her consent. Her evidence was to the effect that she made it quite clear to the applicant that she did not wish to engage in sexual activity with him.

8 WA also gave evidence that on the morning of the second day she asked the applicant to go out to buy a bottle of vodka for her. She authorised him to withdraw money from her bank account using her bank keycard. She provided him with her personal identification number. He did so but she alleged that he also withdrew $100 without her consent. That was the basis of the second count of larceny.

9 The estranged wife of the applicant gave evidence that on the afternoon of the second day that WA was in the applicant's room she saw him attempt to have penile/vaginal sexual intercourse with her. WA did not give evidence about this and it was the Crown case that she was unaware that it had occurred because she was asleep or unconscious at the time. This was the subject of the third count in the indictment for which the jury returned a verdict of acquittal.

10 The accused did not give evidence but his case was placed before the jury by reliance upon answers given in a police interview. The defence case was that there had been an act of sexual intercourse but that it had occurred with WA's consent during "a sober interlude". It was asserted by the applicant that it was WA who had initiated the intercourse.

11 It is necessary to review the evidence in some detail in order to assess the multitude of issues raised in the course of submissions.

12 WA gave evidence that she had experienced a problem with alcohol since 2004. It involved binge drinking in which every couple of weeks she would binge for, "about a week of drinking solid vodka". When not drinking she was studying at TAFE to become a nurse and working part-time as a dance teacher. She gave evidence that from 1 December 2006 until 9 January 2007 she was in a residential rehabilitation program. She said that, "after I got out of rehab I didn't drink, I was clean". She claimed that she had not consumed any alcohol from that time until she met the applicant on 18 February 2007.

13 She said that on the morning of Sunday 18 February 2007 she left home and travelled to a supermarket in a shopping mall at Merrylands in order to buy cigarettes. The queue at the supermarket was too long so she decided to go to a nearby liquor store. The store had not yet opened and there was a man standing outside. She asked him, "Isn't it open yet" and he responded to the effect that it would open soon. It was just before 10.00am. When the store opened WA went directly to the counter to buy cigarettes. Whilst there the man that she had spoken to outside came up to the counter with a cask of wine. She noticed the cask and said to him, "Oh you are lucky you can drink, I can't drink, especially on Sundays because my children were home and I don't like to drink in front of them". He replied, "You know, you can drink too, if you want to come back to my place, just come and hang out and we can drink together". She decided to accept the invitation and so she bought two 750ml bottles of vodka. The two then proceeded to the applicant's home in WA's car.

14 WA said that upon arrival she parked the car outside the house on the street. She recalled that there was a driveway but insisted that she had parked on the street. WA thought that whilst they were on route to the applicant's house, the applicant had introduced himself to her using the name "William".

15 Once inside the house the applicant directed her to his bedroom. She said that she did not see anyone else either at the front of the house or having entered the house. Once in the bedroom she sat on the edge of the bed and started drinking, "very fast". She said that the applicant entered a short time later and that he sat on the other side of the bed and they watched television but that, "I got very drunk very fast". She thought that she finished the first bottle of vodka in less than half an hour. This made her very dizzy and she thought she fell asleep. She said she fell asleep on the bed and that she was, "in and out of consciousness".

16 She could not recall for how long she was asleep but she recalled at some stage waking up and seeing the applicant sitting on the bed looking at her. She said at this stage she was still "very drunk" and on a scale of one to ten she estimated she was at about eight to nine. She said she felt unsafe and all she wanted to do was call a taxi and go home.

17 WA said that she was on three types of medication relating to her treatment for alcoholism and depression. She described two of them as being antidepressants and one as being an antipsychotic with sedative qualities. She said she had taken those medications that morning at about 8.00am when she was at home. She said that taking the medications had no adverse affect upon her except that if she consumed alcohol it, "enhances the effects terribly".

18 WA said that when she woke up she told the applicant that she had to go home and that she had no more vodka. He offered to get her some more Vodka. She did not have enough cash and the applicant suggested that she give him her bank keycard and he would go and get some more vodka for her. She gave the card to the applicant and told him her PIN. She claimed that she told him that she did not have a lot of money and had bills to pay and he was just to get a bottle of vodka.

19 At this point in her evidence the Crown prosecutor reminded her that she had said that she had earlier bought two bottles of Vodka and she had only mentioned drinking one of them. She was asked what happened with the second bottle and she said that she had finished that as well. WA was then asked about how long she had been in the applicant's room and she said that she had been there for two days and that she did not leave the room in that time. She said that she would have consumed the two bottles of Vodka on the first day. She was unable to say on which of the two days she consumed the third bottle of Vodka but thought it was probably on the second day. The following indicates some confusion in WA's mind on this topic: Q. All right, well see a moment ago I got the impression you were talking about the Sunday that you made this arrangement to get a third bottle of vodka. Do you now say that that occurred on the Monday? A. I don't really remember. I'm sorry.

20 WA continued by saying that she was drinking constantly throughout the first day and that she did not leave the room. She was asked whether she had to go to the toilet but she said that she did not because she was too drunk. The judge then asked whether that meant that she may have and that she couldn't remember and she answered, "I'm pretty sure I didn't".

21 Her evidence continued with her saying that she was drinking throughout the Sunday and that she fell in and out of consciousness. She said that was all she could remember. She did not see anyone else on that day apart from the applicant. She could not recall anything happening during the night.

22 She said that she had a vague memory that she finished the second bottle of vodka on the Monday. She now said it was then that she had wanted to leave and that the applicant had said he would get her more vodka. She said she wanted to leave because, "I was feeling unsafe cause he was lying on the bed getting closer". She said that when she had first started drinking the applicant was sitting on the edge of the bed and during the course of the day (the Sunday) he would lie on the bed and get closer to her. She said at one point he put his arm behind her head but this made her feel uncomfortable so she moved it.

23 She was asked whether anything else was done by the applicant and she said, "not the Sunday, no". She immediately added, "he said we should fuck because no one would know". She said she responded, "no". She said that the applicant suggested more than once that they have sex. She said, "I said definitely not, I was not there for sex I was there only to drink". She said she was getting, "very paranoid and anxious and wanted to leave" and that she asked the applicant to call her a taxi but that he kept saying to her to just have one more drink. She felt very uncomfortable.

24 The prosecutor returned to the topic of the applicant leaving to purchase more alcohol and WA gave this evidence: Q. All right. You've agreed with me in effect that you're a bit hazy about when this conversation took place about getting another bottle, a third bottle of vodka? A. Yes.

Q. What's your best memory if I can ask you that as to when that occurred. The Sunday or the Monday? A. It was probably the Sunday. I'm, I'm most certain, let's say 60 per cent that it was the Sunday because once I start drinking I don't stop. And if I sleep and wake up I usually, I'm usually more alert. So it was probably the Sunday.

25 WA reiterated that she told the applicant to only buy a bottle of Vodka because she did not have a lot of money in her account.

26 WA said that whilst the applicant was away she passed in and out of consciousness. The next she recalled was the applicant shaking her to wake her up. She was on the bed. She gave this evidence: Q. Was anything said or done apart from the shaking? A. He kept insisting to have sex, he kept saying more and more "Let's just fuck", he kept saying that.

Q. Did you respond when he said that? A. I kept saying "No", and pushing him away.

Q. Did he do anything else other than what you have just told us? A. He kept grabbing me, trying to grab my breasts and tried to kiss me.

Q. What did you do when he was doing that? A. I was trying to push him away, and saying "No".

Q. What sort of condition were you in when you were doing that? A. I was drunk, very hazy, but I do remember saying "No" because I don't, I wasn't there for sex.

Q. When you said no, how did he respond? A. He became violent and rough.

Q. What, if anything, did he do when you say that? A. He was grabbing me and shaking me.

Q. Whereabouts were you being grabbed? A. On the arms.

Q. Was he shaking you from that position or from some other? A. Yes he was trying to sit me up and shake me and wake me up.

Q. What part of your arms was he grabbing, do you know? A. The top near the shoulder, up here, can you see me? [She was giving evidence via CCTV].

Q. Yes, you are indicating the upper arm, around the area of the bicep, would that be fair? A. Yeah he was grabbing me and shaking me, trying to wake me up, and going like that, he was like pushing me around.

Q. You are indicating there that he is moving you in a rotational sort of way, is that right? A. Yes.

Q. Holding the area of your bicep? A. Yes.

Q. Was it one arm or two arms of yours? A. Both arms, he was in front of me, shaking me.

Q. Are you able to describe the degree of force that was being used? A. It was quite violent because I woke up, came out of a sleep, I was sleeping, and I woke up very scared, being shaken, and him asking for sex.

Q. After that takes place and you have said no and this shaking takes place, what happened then? A. I was trying to push him off and he got on top of me.

Q. What happened after that? A. He took my clothes off and I was trying to push away and he kept taking my clothes up and I realised I was naked with him on top of me.

27 At that point her evidence diverted to the topic of the applicant returning from the shop with what she said was a large bottle of vodka. WA said that she consumed some of this by, "taking big gulps".

28 It is difficult to make sense of the order of events in relation to the preceding matters. It might be generous, but it would appear that WA was saying that when the applicant returned from the shop she consumed some alcohol but then lapsed back into unconsciousness before being shaken awake by the applicant, which immediately preceded the act of intercourse.

29 WA then gave this evidence: Q. You started to tell us a moment ago about him getting on top. A. Yes.

Q. Had you been conscious up to that point? A. He had woken me up out of a sleep and was shaking me, and took my clothes off, and I remember him being on top of me trying to have sex.

Q. What in fact happened at that point? A. He got extremely violent, held me down, and had sex with me.

Q. And in terms of how he had sex, are you able to just tell us what he did? A. Yes, he put his penis into my vagina, thrusting it in violently.

Q. Do you know how long that went on for? A. Not very long, but it was rough.

Q. When that was happening, what were you doing? A. I was saying "No" and trying to push him off, but I couldn't.

Q. Why was it that you couldn't? A. Because I was too drunk and I didn't have the strength to get him off.

Q. Did you remain conscious throughout this? A. I remained conscious through the sexual intercourse, yes.

Q. What happened, if anything, then? After that? A. I was extremely upset, I got up, I tried to put whatever clothes on I could find and I remember someone coming into the room.

Q. In terms of the time frame between this person coming back with the large bottle of vodka and you now mention somebody coming into room, are you able to put any time frame on that, the duration of that time period? A. I think it was, it was the day after, I remember that.

Q. We are talking about the Monday I take it? A. Yes.

Q. What I am asking you though is the time frame between him returning with the third bottle of vodka, and you seeing this other person, what sort of time frame are we talking about there? A. I think we are talking around midday, early afternoon.

Q. Early afternoon when you see this other person? A. Yes. 2.30, 3.00, I am not very sure about times.

Q. Whereabouts did you see this other person? A. I saw a blonde woman standing at the doorway.

Q. Immediately before, for the period of time leading up to you seeing this blonde woman at the door way, what had been happening? A. He had had sexual intercourse with me.

Q. You told us before that your clothing had been removed? A. Yes.

Q. Was it still the case that your clothing was removed? A. Yes.

Q. When you saw this blonde woman? A. Yes.

Q. Are you able to describe this blonde woman, did you say at the door? A. I remember her standing at the door looking at me, saying "You know he just fucked you", she said something to that degree.

Q. She said "You know he just fucked you"? A. Something, she said something like that.

Q. Can you describe this person that you saw at the door? A. She was quite pretty, a pretty woman, she had blonde hair and I remember her wearing a blue dress.

Q. In terms of, roughly, her age, what sort of age group would she be in? A. Forties, late thirties, forties.

30 WA said she tried to get up off the bed and "vaguely remembered" trying to put on some clothes and asking the woman to help her. She said she did put on some clothes but they were not hers. They were men's clothes. She said the applicant also got dressed. WA said she asked the woman who she was and was told she was the applicant's wife. WA, "vaguely remembered" that the applicant walked out of the room and she could not recall the woman saying anything to him.

31 WA said that the next thing that she could remember was asking the woman for help and to call an ambulance. She said that she was stumbling out of the room and begging for help. After that she did not remember much, the next she remembered was waking up in hospital. She said that she had stumbled out of the applicant's room; she did not see anyone else when she went out of the room apart from the blonde woman; and she recalled stumbling into a white kitchen.

32 WA recalled being at Auburn Hospital and receiving some treatment there, although she did not know what the treatment consisted of. At some stage she was transferred to Westmead Hospital. She was not sure what day it was that she found herself in hospital and not sure either as to when she was transferred to Westmead. She said, "I know it was, it had to have happened after Monday. Monday or Tuesday maybe". She did recall speaking to detectives at Auburn Hospital and being examined by a doctor at Westmead who made an internal and external examination and took swabs.

33 WA's evidence in chief concluded with her confirming that on 8 June 2007 she viewed a photo array at a police station and selected a photograph of a person who she thought was the man who had sexually assaulted her.

34 In cross-examination WA was asked about many matters that it was suggested occurred during the course of her time at the applicant's home but she simply could not recall. Indeed, at one point she gave this evidence: Q. I suggest to you, ma'am, that it wouldn't be going too far to suggest to you that your recollection of what occurred is very, very poor? Would you agree with that? A. Yes.

35 It was put that she had parked the car in the driveway of the home but she said that she clearly remembered parking the car in the street.

36 She could not recall meeting two other men who were residents of the house who were introduced to her as Scott and Ian.

37 She could not recall for how long she had been asleep, saying that she went in and out of consciousness.

38 She denied cuddling up to the applicant and getting very close to him. She said that she remembered him trying to touch her but denied that they were holding each other. She was quite adamant about this - "I was not there to cuddle, kiss or carry on, I was there to drink, I am an alcoholic, I'm sorry".

39 WA had no recollection of going to the toilet on the Sunday or of the man Scott and the applicant assisting her down the hallway to the toilet. She was adamant that she had no recollection of leaving the room. She also denied having any recollection of having a fall.

40 She was asked whether she could recall the ambulance being called on the Monday evening and she said she had a, "vague recollection, not really".

41 WA was adamant that the applicant had intercourse with her after he had returned from the bottle shop with the third bottle of vodka. She insisted that she had remained fully clothed at all times prior to this.

42 She agreed that she had told the police that her recollection of the events of the Sunday and Monday was vague and hazy. She said, "a lot of it is, yes. There are moments of clarity though".

43 WA was taken to a statement that she had made on 7 March 2007 in which she had said: If it has happened, it has happened without my consent and I was not even aware of it other than the incident I outlined which I didn't want to happen but could not stop it in the state I was in.

44 She was asked whether the words "if it has happened" indicated a degree of uncertainty and she replied, "I remember exactly that he sexually assaulted me. I remember it very clearly. It hurt". She added that it was without her consent.

45 The judge took up the questioning at this point: Q. We're only concerned about your recollection, not about anything else madam. Right. Now the words "if it has happened", do they indicate that you weren't 100 percent sure at the time you made the statement? A. I was upset. I'm sure it happened. I miss, miss, miss-phrased my words when I wrote "if it had, has happened" because it did happen. But the benefit of the doubt is always there I guess. But it did happen. Medical records can show it did happen and I know it happened and he knows it happened.

46 Counsel for the applicant resumed the questioning: Q. Well ma'am what I'm suggesting to you is simply this. That your, in relation to what you say in the court today and compared to that phrase "if it has happened" in relation to what you recorded a matter of mere weeks after the offence, you have moved I am suggesting to you from a position where maybe something happened to today, two years later where you say it definitely did happen. That's what I'm, all I'm putting to you? A. Okay.

Q. Do you agree with that? A. I agree with what you're saying yes.

47 WA was then taken to an entry in the police officer's notebook of a statement the applicant had made whilst in hospital on 20 February 2007. She agreed that in that statement she had said that she could not remember the man's name but that now she was sure that he had introduced himself as William. She explained that this was because she had time to think about it in hospital and things came back to her.

48 WA was then taken to a statement made on 8 June 2007 relating to the photographic identification procedure. She agreed that she said in the statement made following that procedure that she was 90 percent sure that the photograph she selected was the man she met outside the liquor store on 18 February. She had identified the wrong person but no-one had told her that.

49 She was asked about the third bottle of vodka that the applicant had purchased for her. She said it was a, "normal size bottle of vodka". She was asked whether it was 750ml bottle and she said it was. It was suggested to her that it was a half size bottle, that is a 375ml bottle. She said, "I don't remember".

50 WA concluded her cross-examination with insistence that she did not give consent for sexual intercourse.

51 Mr Drennan was another of the occupants of the house. He recalled waking on Sunday 18 February 2007 and going to the kitchen which was beside the applicant's bedroom. He noticed WA on the applicant's bed. He observed that she was asleep and she appeared to be cold so he entered the room and turned the air-conditioning off. He thought this was at about midday.

52 Later on, he thought it was that night, the applicant asked Mr Drennan to help take WA to the toilet. He said she looked very drunk and could not lift herself up. Mr Drennan helped to take her to the bathroom, lowered her pants and sat her on the toilet. He returned to his room and about ten minutes later the applicant came and asked him to help to take WA back to his room. He observed her to be still sitting on the toilet in a stooped position moving backwards and forwards. He thought she was slurring her words, trying to talk. He enlisted the help of another resident, Mr Ian Cameron, to help him to take WA back to the applicant's bedroom.

53 Mr Drennan saw WA on other occasions. He described one occasion when she was sitting up and watching television in the applicant's room and he thought she was conscious enough to know what was going on. There was a short conversation in which he introduced himself. Mr Drennan formed the impression that WA and the applicant were lovers. He saw that, "she was hugging up to him, he was hugging up to her".

54 At another point the applicant came to Mr Drennan's room and said that he wanted to show him WA. He described the applicant as feeling, "pretty proud of himself about the situation". Mr Drennan went to the door of the applicant's bedroom and from there observed WA lying on the bed half naked, although he could not recall which half.

55 Mr Drennan recalled that at one point he had a conversation with WA. He recalled that she seemed frightened, vulnerable and concerned that someone was going to hurt her. He took her by the hand and reassured her that no one was going to hurt her. He said that at this time WA appeared, "kind of hysterical. Like confused, dazed, wasn't sure where she was".

56 Mr Drennan said that there were times when WA was, "sober enough to have a conversation with, and you could have a little conversation with her", but that at other times, "she was just blotto, like just drunk too much".

57 On what must have been the Monday morning Mr Drennan fed WA some cereal. Later that day he went out and returned to the house with some takeaway Chinese food. He tried to feed her but said that she could not hold it down and started being sick. She asked for an ambulance. Mr Drennan said that the applicant and his wife were against the idea of an ambulance being called but that eventually a call was made. An ambulance attended and took WA away. The applicant went with her in the ambulance.

58 Mr Drennan also recalled that WA had a car which he observed on the morning of the Monday was parked in the driveway. This was at a point in time when the applicant was speaking about going to purchase more alcohol (the inference being that, contrary to her insistence, WA had parked the car in the driveway).

59 In cross-examination Mr Drennan agreed that he made the following observations: She was laying on the bed and Steve was laying beside. I can't remember what he was saying. I remember that she had her arm around his waist and appeared to be cuddling him. …I also remember at this time she jumped up and sat on top of Steve. She seemed like she was still drunk. I wasn't sure whether she was putting on a bit of an act.

60 It should be observed that whilst Mr Drennan had precise recollections of various events, his recall of when they occurred was less than complete.

61 Mr Cameron was another resident at the house. He recalled seeing the applicant on the Sunday morning return to the house with WA. He saw her drive her car into the driveway. The applicant had a cask of wine and WA had two bottles of vodka. They entered the house and went into the applicant's room. Mr Cameron made this observation about WA: Well when she got out of the car you could, even blind Freddy could have seen that she'd had too many, too much to drink, and she, when she, I think she said hello, that, even that was slurred and she had a lump on her head but I can't think what side it was.

62 Mr Cameron did not see WA again that day but the following day he saw her at around 8.00 to 8.30am and noticed that, "she was drunk".

63 The next observation made by Mr Cameron was later in the day when he saw an ambulance outside the premises and the applicant told him that they were taking WA away because, "she's had too much to drink".

64 Mr Craig received a call at 6.20pm on Monday 19 February 2007 to attend the applicant's home at Merrylands. The information provided was that there was an intoxicated 44 year old female who was unconscious. On arrival at the house he was directed to one of the bedrooms in the house where he saw WA lying across the bed and she appeared to be breathing but unconscious. He asked, "Can you hear me?" to which she opened her eyes and mumbled a few words. Mr Craig observed a large bruise on her head to the left forehead as well as bruising to her limbs and back.

65 WA was placed in the ambulance and the applicant requested to accompany her in the ambulance. They proceeded to Auburn Hospital.

66 Dr Unwin saw WA at Westmead Hospital at about 3.15pm on Tuesday 20 February 2007. She spoke to her "about what had happened to her" although Dr Unwin was not asked what was said. She then carried out an external and internal examination and took various swabs.

67 Dr Unwin found no injuries in WA's genital region. She observed bruises at four locations upon her body. There was a bruise to the left side of the forehead. There were three bruises each on the inner aspect of both the left and right forearms, something like the size of a 10 cent coin. There was a bruise on each of the upper left and right thighs which were bigger than a 50 cent coin. The fourth area of bruising was to the left side of WA's abdomen.

68 Dr Unwin described the bruising to the forearms and thighs as being purple in colour, indicating to her that they were relatively new, having been caused she thought in the last "48 hours or so". No attempt was made to clarify what range of time she had in mind by the "or so".

69 Dr Unwin was of the opinion that the injuries "could be consistent with a sexual assault" but allowed that they could have been sustained in some other manner.

70 Ms Maria Jones was the wife of the applicant. Her evidence was to the effect that she had spent the weekend with a friend in Stanmore and returned to the boarding house in Merrylands at about 2.00pm on Monday 19 February 2007. She went to the bedroom that she shared with the applicant and saw him on the bed with WA.

71 Ms Jones claimed to have witnessed the applicant attempting to have penile vaginal sexual intercourse with WA. WA had not given evidence about this because it was the effect of Ms Jones' evidence that WA was asleep or unconscious at the time. This was the evidence led in support of the third count in the indictment for which the jury returned a verdict of not guilty.

72 There were a number of deficiencies and inconsistencies in the evidence of Ms Jones. Her credibility was the subject of vigorous challenge. The trial judge gave the jury a warning about the potential unreliability of her evidence. The acquittal of the applicant in respect of the third count has no bearing upon the reliability of his conviction for the first two counts. For this reason the evidence of Ms Jones does not warrant further attention.

73 AF is WA's son and he was aged 17 as at February 2007. He did not see his mother when he arrived home from work on the afternoon of Friday 16 February and did not see her at all until he attended the Auburn Hospital on the evening of Monday 19 February 2007.

74 AF's evidence was that his mother had a problem with binge drinking of alcohol and, contrary to her evidence, he said that she was drinking to excess through the course of January and February 2007.

75 On the Monday evening he received a telephone call from the applicant who was using his mother's mobile. He had been trying to call his mother throughout that day without success. In the first telephone call the applicant said, "I have found your mother laying in a gutter, she doesn't look too well, I'll be taking her to hospital". The applicant indicated to him that his mother was being taken to Westmead Hospital. AF started to drive towards Westmead Hospital. A second phone call was received whilst he was en route in which the applicant informed him that his mother was now being taken to Auburn Hospital. He also said, "You (sic) don't have to get involved in this matter, I'm just trying to do the right thing, I'm a good Samaritan".

76 AF arrived at Auburn Hospital and was approached by the applicant who introduced himself. AF said that the applicant repeated that he, the applicant, did not have to get involved and that he was just trying to do the right thing. He described the applicant as looking, "quite scruffy, smelt like alcohol".

77 AF entered the Emergency Department and located his mother. He tried to converse with her without success. He described her as, "just laying there with her eyes open, facing into nothing".

78 AF attended to administrative matters with hospital staff and then walked outside where he again came in contact with the applicant. The applicant repeated that he did not want to get involved and that it had nothing to do with him. AF said that a woman then approached and told him not to believe a word of what her husband was saying. She said, "I saw it with my own eyes, I witnessed it as it happened, they were sleeping together in my own bed". AF said that he was quite shocked and did not know what to believe. The woman assured him that she was telling the truth. At this point the applicant walked away. AF then went home to await news from hospital staff.

79 Detective Hodges commenced her investigation upon becoming aware of the matter on Tuesday 20 February 2007. She attended the Auburn Hospital that morning and spoke with WA. She saw WA in bed and described her as being, "very hazy, very tired, a bit fuzzy". She said that WA "had issues trying to recall the past events" and "seemed to struggle when she spoke to me and she seemed a little bit upset".

80 Detective Hodges gave evidence of enquiries made of the Commonwealth Bank in relation to WA's account. Those enquiries revealed that $100 was withdrawn from the account at 11.50am on 19 February 2007 at an ATM in Merrylands Road, Merrylands. A further $40 was withdrawn from the account on that date at 11.53am from an ATM at the Stockland Mall at Merrylands.

81 Detective Hodges gave evidence concerning the investigation of the crime scene including the execution of a search warrant and of analysis of swabs taken upon the medical examination of WA. There was nothing found that supported WA's evidence that sexual intercourse with the applicant was without her consent.

82 In relation to the photographic identification procedure in which WA participated on 8 June 2007, Detective Hodges confirmed that WA had viewed 20 images of males and that she selected a male who was not the applicant. The applicant's photograph was included in the array.

83 The tape recording of the triple 0 call that was made on the afternoon of 19 February 2007 was tendered. The conversation with the operator included the applicant providing information that the subject was a 44 year old female who was intoxicated. He was asked whether she was conscious to which he replied, "Ah, well, put it this way, she's been asleep since yesterday". The operator asked whether the woman was presently awake and the applicant said that she was, "off and on". He was asked whether she was responding to the applicant to which he replied, "not very well".

84 The applicant was arrested on 28 April 2007 and agreed to participate in a police interview.

85 The interview was relatively lengthy and somewhat repetitious. The applicant's version, which was relied upon in the absence of giving evidence before the jury, was essentially this. He met WA outside the liquor store on the morning of Sunday 18 February 2007, much as she had described. Alcohol was purchased and the two went back to his boarding house. He claimed that apart from drinking and WA sleeping, nothing happened between them on the Sunday, although he did say that, "she was cuddling me up, cuddling up to me all night".

86 He said that when he first met her, "she looked like she'd had a few drinks but she wasn't like drunk". He said that she looked as though she hadn't slept, her hair was messy and she was not clean. However she was, "in control of her functions and everything". He noticed that she had some bruises on her body. On first arriving at the house she was introduced to both Mr Cameron and Mr Scott.

87 He recalled that at the boarding house she had fallen over on the kitchen floor. He said that late in the afternoon, probably 4.30 or 5.00pm on the Sunday, she had gone to the bathroom and had fallen over.

88 The applicant claimed that when WA woke on the Monday morning, "she was fine". It was at that point that WA asked him if he wanted to have sex with her. He replied, "it's up to you". He claimed that he said, "if you want to do it, it's up to you to take your clothes off". She took her own clothes off. She then got on top of him and then he was on top of her and they had penile/vaginal sex. He claimed that the sex lasted, "probably about three or four minutes if that". He said that WA was moving and taking part and that she was "yelling out, more, yeah. She wanted more. And they all heard it down at the house too". He was asked whether WA was under the effects of alcohol and he replied that he did not believe that she was at that stage.

89 It was after the sex that the applicant left, at WA's request, to purchase more alcohol and a packet of cigarettes. He claimed that he purchased a packet of cigarettes and a 375ml bottle of vodka and paid for those items with WA's keycard that she had given to him. He was asked whether he made any other withdrawals or purchases and he said, "No". Later in the interview he recalled that he had also purchased a carton of beer.

90 The applicant also recounted in the interview how the ambulance had been summoned for WA at some time in the afternoon/evening of Monday 19 February 2007. He said that when he arrived at the hospital he telephoned WA's son using her mobile phone to inform him that his mother was at the hospital. He continued, "my wife turned up, alright, and this is why this allegation has come up, alright, 'cause I know [WA] wouldn't have said this. My wife told [WA's] son that I raped her".

91 The applicant said that when his wife had arrived she had looked into the bedroom and at that time WA was asleep on the bed. WA was clothed, he thought. He was asked what happened at that time and he said, "nothing".

92 Later in the interview the applicant repeated his version that after arriving at the hospital, "everything was alright till Maria arrived up there and then she told [AF] that I raped his mother. And that's how it all started. This is what it all begun about". He was asked why he thought his wife had said that. He replied that it was because she was jealous.

93 The applicant was questioned about the statement that the police had obtained from Mr Drennan. He was asked about Mr Drennan's claim that the applicant took Mr Drennan to his bedroom and showed him WA lying partially naked on the bed. The applicant maintained that WA was not naked, and that she was covered. He said he took Mr Drennan to the room in order to introduce him to WA.

94 The applicant was also asked about AF's version of events. He denied having said to him that he had found his mother in the gutter and denied saying that he was trying to help his mother out and that he did not have to.

95 The trial judge has provided a report to this Court pursuant to s 11 Criminal Appeal Act 1912. He did so upon the request of the applicant against opposition by the Crown.

96 In R v Sloane [2001] NSWCCA 421; 126 A Crim R 188, Wood CJ at CL stated the following as to the purpose of such a report: [10] An important function of a Report under s 11 of the Criminal Appeal Act is to inform the Court of Criminal Appeal of any problems which might have emerged during the trial, which either do not appear on the face of the record, or which are imperfectly or ambiguously recorded.

[11] Another permissible and relevant function of such a Report is its use, by a trial Judge, to raise any matters of irregularity or otherwise, which may give cause for significant doubt in relation to a guilty verdict, and which again are not apparent upon a bare reading of the record.

[12] A third permissible reason for such a Report is its provision, in response to a specific request from the Court of Criminal Appeal, in relation to any matter which may be of concern to it.

[13] Otherwise, in times where there is in existence an adequate system for Court reporting, occasion for the provision of a s 11 Report should only arise in exceptional circumstances. Its use in order to justify, or to explain a decision for which reasons should have been provided, is not such a circumstance.

97 The report provided by the trial judge raises two matters. One is what he perceived to be a deficiency in the evidence of WA where she described the appearance of the applicant's wife as "pretty". This conflicted with the judge's own assessment of Ms Jones' appearance which he expressed in most unflattering terms. Senior counsel for the applicant disavowed any reliance upon the judge's observation in this respect.

98 The second part of the report is as follows: 2 The inference I draw from [WA's] presentation in the witness box was that her denial of consent to sexual intercourse could well have been the result of ex post facto rationalisation of behaviour she regretted once she regained sobriety.

99 It is to be observed that the only basis put forward for this conclusion as to a possible explanation for WA maintaining that the intercourse was without her consent was her "presentation in the witness box". No explanation is given as to how that "presentation" could give rise to such a conclusion. Moreover it is a conclusion expressed almost a year after the trial.

100 In his remarks on sentence of 28 August 2009 the judge offered the comment, "I myself had some difficulty in accepting the evidence of WA because it appeared to me that she was so intoxicated that she could hardly remember what had happened to her".

101 "Ex post facto rationalisation of behaviour she regretted" may be taken to mean that WA had a motive to have given evidence that was, at least, incorrect. I find it difficult to understand how demeanour could be a basis, let alone the sole basis, of divining a motive for a witness to maintain a version that is incorrect. There is contemporary controversy about the value of demeanour in the assessment of the reliability of testimony: see, for example, Who is telling the truth? Psychology, common sense and the law, McClellan CJ at CL, (2006) 80 ALJ 655.

102 The report in this case may be contrasted with that which was received by the Court in R v Appellant W, Court of Criminal Appeal, 9 March 1990, unreported. Gleeson CJ referred to the trial judge in that case as having reached a conclusion that convictions were unsafe and having conveyed that conclusion in a report which was "fully reasoned". Absent any reasons for the conclusion of the trial judge in the present case, I regard the report as being of no assistance.

103 There were a significant number of problems with the evidence of WA. It was the only evidence relied upon by the Crown to establish the applicant's guilt of the two offences for which he was convicted. It is clear from the foregoing survey of the evidence that her recollection of the time she spent with the applicant was seriously deficient and, in some important respects, demonstrably faulty. This is attributable to her gross intoxication.

104 There was evidence pointing to her having been intoxicated even before she met the applicant, perhaps for up to the entire 48 hour period from when her son last saw her. It affected her ability to recall events that occurred whilst she was drinking and for a considerable time after she had ceased drinking. It is apparent that she could recall very little when she was first spoken to by police but that details came back to her mind. Whether this restored memory was reliable or not could only be assessed with reference to evidence independent of her own. On a number of issues it was demonstrated to be wrong.

105 A number of specific matters were drawn to the Court's attention and there are further matters that are apparent upon a review of the evidence. They include the following.

106 WA insisted she had not consumed alcohol in the six week period between leaving a rehabilitation facility and meeting the applicant. Her son gave evidence that she had been drinking to excess throughout this period.

107 WA's evidence was that she was at home, and sober, on the Sunday morning before she went to the liquor store where she met the applicant. However, there was evidence that she had not been home for perhaps up to 48 hours and that she was intoxicated at the time she arrived at the applicant's boarding house.

108 She insisted that she parked her car on the street whereas there was independent evidence that she had parked in the driveway.

109 She could not recall meeting or even seeing anyone at the boarding house apart from the applicant's wife. However, she obviously saw both Mr Drennan and Mr Cameron. Mr Drennan even spoke with her and on two occasions tried to feed her. Both men were involved in carrying WA between the applicant's bedroom and the toilet, something she was "pretty sure" did not happen.

110 There was equivocation in the statement made by WA on 7 March 2007 - "if it happened" and "the benefit of the doubt is always there I guess". She agreed in cross-examination that she had moved from "a position where maybe something happened" to saying in her evidence before the jury that "it definitely happened".

111 Her intoxication caused her to make at least one ill-advised choice, that is to give her bank keycard and PIN to a man who was virtually a stranger, notwithstanding she was concerned about the limited funds she had in her account.

112 The confused state of WA's evidence concerning matters such as how much she had to drink, and when, and the size of the third bottle of vodka, was also indicative of faulty recall.

113 None of these matters individually would be capable of impugning the jury's verdicts. Senior counsel for the applicant relied upon the cumulative effect of such matters requiring that there be a reasonable doubt about his client's guilt, noting that the prosecution relied upon the evidence of WA alone as to the essential elements required to be proved.

114 The Crown contended that WA's evidence did not stand alone as the evidence of bruising to her body was capable of corroborating her account of non-consensual sexual intercourse. However, with evidence that she already had one mark on her body when she arrived at the boarding house, evidence that she was man-handled in being carried to and from the toilet, and suggestions that she may have fallen in the kitchen and bathroom, the submission accords the evidence greater value than it warrants. It is to be recalled that Dr Unwin's evidence was that the bruising was consistent with a sexual assault but that there may have been other causes.

115 A critical matter in my view was WA's evidence to the effect that the applicant was pestering her to engage in sexual activity but that she made it clear to him that she was only interested in drinking. This was contradicted by the evidence of Mr Drennan who at one time gained the impression that the two were lovers by the way that they were hugging each other. It may have been at that time, or perhaps another time, that he observed the two laying on the bed with WA cuddling the applicant with her arm around his waist. He also saw at this time that WA "jumped up and sat on top of Steve". At another time he observed WA to be lying on the bed half naked, whereas she insisted that she was fully clothed except when the applicant was having intercourse with her.

116 There are very good reasons to question the reliability of WA's evidence but no reason to question that of Mr Drennan. The Crown did not challenge or dispute his evidence.

117 The Crown submitted that there clearly were times when WA was so drunk that she would have paid no attention to the applicant putting his arms around her waist, or doing the same to him. It was submitted that this was a far cry from inviting the applicant to have sex with her. That may be so but it must be recalled that WA denied that she behaved in any fashion in the manner described by Mr Drennan. The applicant, on the other hand, contended that WA was behaving affectionately and that it was she who introduced the idea of engaging in sexual intercourse. What Mr Drennan observed was completely contrary to WA's version and entirely consistent with the applicant's.

118 The principles to be applied when a ground of appeal is raised that a verdict should be set aside because it is unreasonable, or cannot be supported, having regard to the evidence, are well known: see, for example, Dodds v R [2009] NSWCCA 78 where the principles were summarised by McClellan CJ at CL: [74] The appellant submitted that the verdict of the jury was unreasonable or cannot be supported by the evidence: Criminal Appeal Act 1912 s 6(1). The correct approach to this question by an appeal court has been considered by the High Court on a number of occasions: M v R (1994) 18 1 CLR 487; MFA v R (2002) CLR 606 at 614 at 615. I summarised the relevant principles in R v Habib [2005] NSWCCA 223 and discussed them in Kaliyanda v R [2007] NSWCCA 300. The court's task is to consider whether upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. The joint judgment in MFA offered the following by way of guidance: "The majority in M pointed out that '[i]n most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced'. In such a case of doubt, it is only where the jury's advantage of seeing and hearing the evidence can explain the difference in conclusion about the accused's guilt that the appellate court may decide that no miscarriage of justice has occurred: 'If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence'[56]. [75] In their conclusion their Honours acknowledge that it is not uncommon for some aspects of the evidence in a trial to be less than wholly satisfactory although juries are usually well able to evaluate conflicts and imperfections of evidence. "In the end, the appellate court must ask itself whether it considers that a miscarriage of justice has occurred authorising and requiring its intervention" [96].

119 In the present case the jury were well positioned to make an assessment of the credibility and reliability of WA's evidence. Full allowance should be made for the advantage they enjoyed in seeing and hearing her give evidence. They were given the benefit of a summing up by the trial judge in which a number of features relevant to the reliability of her evidence were highlighted for their consideration.

120 There are two further matters to which reference should be made. The first is that there was no evidence of complaint. There must have been some form of complaint that led to a police investigation being commenced and to a medical examination being carried out. Whether that complaint was unprompted or followed conversation between WA and somebody else, including her son who had been told by the applicant's wife that the applicant had sex with his grossly intoxicated mother, was not something that was explored. As there is no explanation for the absence of such evidence I will say no more about it.

121 The second matter concerns the opening and closing addresses of the prosecutor. There is no ground of appeal concerning those addresses but often when a ground of appeal is raised concerning the reasonableness of a jury verdict there is a question as to how the jury may have arrived at a verdict of guilty notwithstanding deficiencies in the evidence.

122 This is not a matter calling for determination but it can be observed that both in opening and closing addresses the prosecutor raised the possibility of the jury concluding that WA was incapable of consenting to sexual intercourse because of the level of her intoxication. In his opening address, the prosecutor informed the jury that the evidence would be that WA "wasn't fully conscious" when the accused commenced to have intercourse with her.

123 In his closing address, despite accurately summarising the evidence of WA to the contrary, he also submitted that And you don't need me to tell you, members of the jury, that if you drank that amount of alcohol that we are clearly dealing with, you would be very drunk. If you are that drunk, members of the jury, then the question is, well, could you have consented to sexual intercourse under those circumstances ? (Emphasis added).

124 Later, he came to the evidence of the state WA was in late in the afternoon of the Monday when, he reminded the jury, she was incapable of feeding herself. In this context he submitted: So, aside from - if I can call it the support that you get from Maria Jones' evidence - about there being something sexual happening in the room, you also get this other evidence as to the state of consciousness, or the lack of consciousness on the part of [WA] at some point after 2pm on the Monday. See, members of the jury, it is a situation where it is further support, in my submission to you, that clearly [WA] was in no position to give voluntarily (sic) consent to sexual intercourse, be it the first count or, indeed, the third charge in the indictment . (Emphasis added).

125 It was not WA's evidence that she was incapable of giving or refusing consent to intercourse. Her evidence was that she was conscious of the applicant initiating sexual activity with her and that she actively communicated to him that she did not consent. This was a confusing aspect to introduce for the jury's consideration. It seems to me that there is a possibility that the jury found the applicant to be guilty, despite the shortcomings in the evidence of WA, upon a view of her evidence that was entirely inconsistent with it.

126 I am left in a position of feeling considerable disquiet about the number and significance of the discrepancies and inadequacies in the evidence of WA. True it is that many of them are susceptible to arguments for and against their significance. However, it is the cumulative effect of them, coupled particularly with the specific matter I have mentioned of the conflict between WA and Mr Drennan about the nature of her behaviour towards the applicant, that leads me to conclude that there is a reasonable doubt about the accused's guilt and that this is a doubt that the jury ought also to have experienced.

127 The level of disquiet I have in relation to WA's evidence extends to her evidence in respect of the larceny count as well. With her recollection of events being so poor there can be no confidence in the accuracy of her evidence about what arrangement she made with the applicant as to the money she authorised him to withdraw from her bank account.

128 I am of the view that there has been a miscarriage of justice.

129 Leave to appeal should be granted. The appeal should be allowed, the convictions quashed and verdicts of acquittal entered. **********

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