Solicitors:
Absolve Legal (Applicant)
Office of the Director of Public Prosecutions (NSW) (Respondent)
File Number(s): 2017/114253
Decision under appeal Court or tribunal: District Court
Date of Decision: 1 May 2019
Before: Berman SC ADCJ
File Number(s): 2017/114253
[2]
Judgment
R A HULME J: I have read the judgments of Adamson and Ierace JJ in draft and substantially agree with their analyses. Their conclusions accord with those I have reached upon my assessment of the evidence.
I particularly endorse what their Honours have said about what I would describe as the futility of assessing the behaviour of sexual assault complainants by reference to stereotypical expectations. The criminal law has moved past the era in which this was often prominent in a defence to a sexual assault allegation. Jurors applying a sensible and mature understanding of human behaviour are far less likely now to be persuaded by such propositions.
One matter that Ierace J describes as "more concerning" is the complainant's description of her behaviour during the course of the assaults. The concern is that she "awoke" to find the applicant kissing her and that after that incident concluded she again fell "asleep". She then became aware of the applicant touching her.
Having regard to her description of "drifting in and out" and her evidence of being intoxicated, I do not perceive her account as describing a state of being completely awake and then completely asleep. More likely, she was describing an intoxicated haze in which she slowly came to realise the first activity, lapsed in consciousness when it concluded, and then was roused to greater consciousness by the applicant's further interference with her.
I agree that the jury's verdicts were not unreasonable or unsupported by the evidence.
I agree with the reasons of Ierace J that leave pursuant to r 4 of the Criminal Appeal Rules should be refused in respect of Ground 2.
I agree that although leave to appeal in respect of Ground 1 should be granted, the appeal against conviction must be dismissed.
ADAMSON J: I have had the benefit of reading the reasons of Ierace J in draft. I agree with the orders which his Honour proposes and, substantially, with the reasons. I wish to add the following further reasons of my own.
As to ground 2, I am not satisfied that the Crown's closing address to the jury occasioned any miscarriage of justice. It is of significance that nothing was raised at the time about the closing address and no exception was taken to the trial judge's summary of the submissions in the summing up.
Having regard to my responsibility in respect of the unreasonable verdict ground (ground 1), it is appropriate that I confirm that I have read the transcript of the evidence and reviewed the exhibits. There is nothing about the complainant's account that causes me to have a doubt about the applicant's guilt, much less one that might not have been removed by the advantage the jury had in seeing and hearing the evidence of the witnesses. As Ierace J has observed, it is neither useful nor instructive to speculate about how a person in the complainant's position might have reacted in the circumstances of the case as presented by the Crown.
The jury had the opportunity of seeing and hearing the complainant give evidence about what she experienced and how she reacted. It is plain from the jury's verdicts that they accepted the complainant as a materially credible and reliable witness. While there are discrepancies in the evidence which have been referred to by the applicant in his submissions, this is not an unexpected consequence of difficulties in recollection over time. The first version given by the complainant to the police shortly after the offending conduct was consistent with the Crown case at trial. It was also consistent with the objective evidence. Further, the complainant gave an explanation, which the jury can be taken to have accepted, as to why she refrained from giving the same detail to her mother: namely, that she was hoping that her mother would be able to guess from her distress what had happened to her.
There is, in my view, nothing inherently implausible about the complainant having apologised in the morning for what had occurred. It is not uncommon for those who bear no, or little, responsibility to apologise, either because it is an instinctive reaction, the product of insecurity or for some other reason. The jury had an undoubted advantage in assessing the evidence concerning the apology and forming a view about what it meant in all the circumstances. The jury plainly rejected the contention that the complainant was apologising because she was actually responsible for the sexual contact with the applicant and had, as the applicant contended, initiated the contact.
Nor do I consider the circumstance that the complainant fell asleep again after having been kissed to cast any doubt on the veracity of her evidence. She was affected by alcohol and in shock. She may well also have been in denial about what had occurred and reluctant to believe that it had actually happened. There is no such thing as an "objective" or even typical response to that kind of event since individuals respond differently to such events. The jury can be taken to have understood and appreciated that the complainant responded in a particular way which they must have regarded as consistent with the applicant's guilt of the offences charged.
For these reasons, I am not persuaded that ground 1 has been made out.
IERACE J: On 30 January 2019, the applicant, Kennith Maughan, was indicted at trial before a jury at Newcastle District Court of one count of indecent assault and one count of sexual intercourse without consent, pursuant to ss 61L (since repealed) and 61I respectively of the Crimes Act 1900 (NSW). On 11 February 2019, the applicant was convicted of both counts. On 1 May 2019, on the first count, which had a maximum penalty of 5 years imprisonment, he was convicted without any further penalty pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW). On the second count, which had a maximum penalty of 14 years imprisonment and a standard non-parole period of 7 years, he was sentenced to 4 years' imprisonment commencing on 1 May 2019, with a non-parole period of 2 years, expiring on 30 April 2021. The total term will expire on 30 April 2023.
The applicant filed a notice of appeal against his conviction, advancing two grounds, which are best understood against an overview of the factual background and issues in the trial.
[3]
The factual background
On the Easter long weekend of 2016, a party of 15, comprising a mixture of adults, teenagers and children, gathered at a remote rural location known as the Barrington Country Retreat in the Hunter region of New South Wales. They stayed in two houses on the property, one bigger than the other and having a communal kitchen and lounge area where they would all gather at night. Its furnishings included a number of lounge chairs and a pool table. Five bedrooms radiated from this communal area, three with double beds and two each with two single beds. The weekend away was organised by two women who were close friends, VD and Tracey Woelms, and those in attendance were members of each of their extended families.
The applicant, who was then aged 60, was the husband of Helen Ritter, who was one of two of Tracey Woelms' sisters who were present, the other being Linda Allen. Also present was Linda Allen's daughter Kate Allen, Kate's partner and their young daughter. The complainant, who was aged 19 at the time, was a daughter of VD. Others in that family group included the complainant's younger sister, AD, who was then aged 17, VD's partner RH, and his four children, the oldest being a daughter SH, aged 15 at the time. The applicant and the complainant had not met before that weekend.
On the Friday night, being Good Friday, they all gathered in the larger house for dinner, after which they played various games and pool. The adults, including the applicant and the complainant, had alcoholic drinks. The complainant's evidence as to her alcohol consumption over the night was that she had two vodka and watermelon "cruisers", one before and the other during dinner, and thereafter she drank between three and seven vodka and sodas, pouring the vodkas herself from a 750ml bottle that she brought with her and that only she accessed. She noted the next day that she had drunk "almost half" of that bottle.
They went off to bed at various times over the course of the night until, at around 1:30am, only two remained: the applicant and the complainant. By then, each of the five adjacent bedrooms was occupied by at least one person.
[4]
The complainant's evidence
The complainant's evidence from that point was to the effect that they played one or two games of pool and then left the lounge area for an adjoining veranda, explaining: "I think [the applicant] was having a cigarette or something, so we went on the verandah".
They sat on the verandah for about ten minutes, talking. At one point, the complainant complimented the applicant's wife, Ms Ritter. In evidence, the complainant said:
"… I was saying that I thought she was so funny and nice and everything, and then he didn't really respond to that at all … He switched the conversation … He started telling me that I was beautiful and stuff like that and asked how old I was."
The complainant said that she found that "quite weird" and went back inside. She was feeling "pretty drunk" and needed to sleep. She was supposed to have set up a bed earlier in the evening in a room with two single beds occupied by her sister AD and stepsister SH, but had forgotten to do so. The only spare single bed was in a bedroom occupied by Linda Allen, but the complainant did not know her and preferred to not share a bedroom with her. There was a rug on the lounge room floor, and she decided to sleep on that. She lay down and fell asleep, with the light still on.
The complainant awoke to the applicant kissing her on the mouth. She was on her back and the applicant was lying to her right side. The light was off, but there was some light from a pilot-type light on a television. The complainant said she was half asleep, confused and in shock. She lay still and felt that she could not move. After she had been awake for about five seconds, she turned her head to the left, and the kissing stopped. This incident was the basis of the count of indecent assault.
The complainant again fell asleep; she was "drifting in and out", because she was intoxicated. She then became aware of the applicant touching her. She was wearing a loose long-sleeve shirt, high-waisted shorts and hip-length briefs. He was still on her right, leaning on his left arm and rubbing his right hand over her shirt, over her stomach and chest. He then moved his hand into her shorts, under her briefs, shuffling in closer as he did so, and inserted two fingers into her vagina. She grabbed his wrist and pushed it away. The insertion by the applicant of his fingers in the complainant's vagina was the basis of the second count. In relation to both counts, the Crown case was that there was an absence of consent since the complainant was asleep.
The complainant got up and stood facing and leaning against a lounge, which was at least a two-seater lounge in length. She felt the applicant touching the back of her thighs. She sat cross-legged on the other end of the lounge and thought she again fell asleep.
She was next aware of the voice of Ms Ritter, yelling: "Ken, what are you doing?" (with Ken being a reference to the applicant). She could not see Ms Ritter, and realised that the applicant was in front of her, blocking her view of Ms Ritter. She thought she said "sorry", as an instinctive reaction. The applicant and Ms Ritter went into their bedroom. The complainant moved to another lounge in the room and fell asleep.
Early the next morning, the complainant was woken by Linda Allen, who moved the complainant into her bedroom so that she could continue to sleep undisturbed. The complainant still felt intoxicated and fell back asleep, until she was woken by Ms Ritter. The complainant's evidence was that:
"She sat on the bed and she said 'Don't worry about what happened' and I couldn't remember what she was talking about because I'd just woken up and I just couldn't remember anything and I just said 'Sorry' because I thought she meant that I'd like said something I shouldn't have or something like that … I didn't remember and she said … that her and Ken were going to let it go ... she just kissed me on the forehead and then left.
I was trying to remember what had happened and then I had like a glimpse of memory of being on the lounge and I just knew something had happened with Ken and then I just had to go see my mum, so went through the girls, [SH] and [AD's room], they had a door in their room to get outside, 'cause I didn't want to go back through the lounge room … cause I was scared to see Ken."
The complainant agreed that in her statement to police she had said to Ms Ritter, "I'm so sorry for what I've done". She said that when Ms Ritter first started talking to her, she did not realise that the behaviour that Ms Ritter was referring to involved the applicant. The complainant said: "She didn't mention Ken till the last sentence before she kissed my forehead and that's when she said 'Me and Ken are going to let it go.'" She described what happened when she arrived at the other house, where her mother VD, her mother's partner RH and his four children were staying:
"I still couldn't completely remember what had happened, I just said - I started crying and she said to me, 'Have you been raped?' and I was like, 'I don't know'. She was like, 'Was it Ken?', I'm like, 'Yes, I don't remember what happened.'"
The complainant also had a vague recollection of telling her mother that Ms Ritter had "talked to me as if I've done something wrong".
[5]
VD's evidence
VD's evidence of what she recollected the complainant telling her at that point was a more amplified version. VD said:
"She was crying and shaking and looked just shocked … I asked her what's wrong and you could tell me anything … She just said, 'Mum it's so terrible, you can't fix it'. She said, 'I didn't give consent, I didn't say it was okay' and she just kept saying, 'I didn't give consent mum'. … I said to her … 'Ken has done something to you hasn't he?' Well she's just kept saying 'Mum I didn't give him consent' and she said, 'I can't remember everything but Helen came in the morning and said, 'I'm going to let this one go …' and she said, 'I just kept saying to her I'm so sorry' because she said, 'I couldn't remember everything that had happened then.'"
[6]
Ms Woelms' evidence
Ms Woelms said that she was called across to the other house and spoke to the complainant:
"I asked her how she was and what had happened to her. … She said that she was playing pool and … everyone left and she was the last one playing with Ken but she said that she went to go to bed and she woke up, all she remembers that she woke up laying on the lounge and he was on top of her and she was moving her head and she couldn't do anything else … she said that Ken made her a drink and she didn't finish it and she went to go to her bedroom and she said she just fell to the floor."
[7]
The applicant's evidence
The applicant gave evidence that he had one or two light beers before dinner and two glasses of wine with dinner. After dinner, he had "a few Sailor Jerrys … and dry", which he described as "a dark rum", which he had with dry ginger ale.
The applicant said that he and the complainant were alone from about 2:00am. He had a few more "Sailor Jerrys" after the others had gone to bed. He did not pay attention to whether or what the complainant was drinking, other than at one point they "cheers-ed" each other, but he did not know what was in her glass. They played pool for about half an hour. After the last game, he was tired and wanted to go to bed. At no point did they go onto the verandah. He was not a smoker. He turned off the light over the pool table, got a glass of water to take with him and asked her if she wanted one, which she did.
The applicant said that:
"[The complainant] started talking about herself and she was saying like, 'You and Helen have a really good relationship.' You know, 'You're so lucky, you guys … my life's fucked, you know … I don't know what to do, I'm just really unhappy with my life and stuff', and she sort of went over to the lounge and plonked herself down on it and she's like … she seemed to be getting really down, you know, and it was only me and her there … so I went over and sat beside her and said, 'You're only young. You've got your whole life ahead of [you]. Don't get down like this, you're going to be fine' … She said, 'Do you think I'm pretty?' and I said, 'Yeah, you're gorgeous. It's going to be fine. Don't worry.' … there was no one else there and she was getting down, you know. I'd seen her a little bit upset earlier in the evening and I just wanted to reassure her and didn't want to leave her alone depressed … and we were sort of leaned in there and she leaned in towards me and we kissed … She was a very passionate kisser, you know. She sort of put her tongue in my mouth and it was - it was very passionate kissing. It all just happened real quick … I kissed her back. She was sort of moving her body around and thrusting and sort of moaning a little bit. It was very passionate. She said, 'Stick it in me.' I had my hand sort of on her hip and I undid her top button and put my hand down her pants a little bit. … Then I had a moment of clarity and I thought - and I pulled my hand out and sat, you know, sat back up … she sort of moved down onto her knees … She said, 'What? What? What's wrong?' and I said, you know, 'I've got to go to bed,' and she sort of put her head up and said, 'What?' … Then I heard Helen's voice say, 'Who's that?' … I stood up, tapped her on the shoulder and I stood up."
The applicant said that Ms Ritter told him to go to bed, which he did. There was a conversation between her and the complainant, but he could not hear what was said. The next morning, Ms Ritter asked him what was going on the night before. The applicant said:
"I explained that [the complainant] was, you know, getting very down on herself and I tried to console her and we started kissing, and Helen was like, 'Sh', and she left."
[8]
Ms Ritter's evidence
Ms Ritter's evidence was that she woke up, realised that the applicant was not in the bedroom, and got up. She opened the door and heard whispers. She noticed movement from the other side of the lounge room and saw the applicant sitting on a lounge and a woman kneeling before him. There was moonlight from a "full moon" coming in through glass doors and there was a light on in the kitchen area. She could not make out what was being said. The woman lifted her torso upright and Ms Ritter recognised the complainant. She pretended she had just walked in on the scene by asking, "Who's that?" The applicant put his hand on the complainant's shoulder and said, "Up you get". Ms Ritter walked over to them. The applicant stood up. Ms Ritter gestured to him and said, "What the fuck?" He said nothing and she said: "Get to bed". He then went to their bedroom. The complainant immediately said: "It wasn't him. It wasn't him. It was me. It was me. I'm sorry. Please don't be angry at me". The complainant put her head in her hands and Ms Ritter said to her, "It's all right. I'm not angry at you but I think you should get up and I think you should go to bed". The complainant was huddled over with her hands in the area of her waist, out of view. She then stood up, threw her arms around Ms Ritter and again said, "It wasn't him. It wasn't him. It was me. It was me. I'm so sorry. Please don't be angry at me". Ms Ritter pulled the complainant's arms off her, made the complainant look at her, and said, "I am not angry at you but I think you need to go to bed … let's go and find you a bed".
Ms Ritter took the complainant by the hand and led her towards the bedroom where Linda Allen was sleeping. The complainant said, "I don't want to sleep in there", and Ms Ritter said, "Okay. I will make you a bed up in this room", and she turned around to go into the room where her sister AD and SH were and opened that door. The complainant also refused to sleep in that room, so Ms Ritter led the complainant to a lounge that was immediately outside the bedroom used by her and the applicant, got her a pillow and a blanket and the complainant lay down there.
Ms Ritter attributed to the complainant a degree of contrivance in her response to Ms Ritter's intervention. Ms Ritter said:
"She put her head in her hands and was doing a bit of a whimpering noise. I took that to be crocodile tears … before she got up, she looked to me like she was secretly trying to do her pants back up … I just ignored that. I thought, 'okay, fine.'"
And later, Ms Ritter said of the complainant:
"She seemed alert. She seemed embarrassed. She seemed remorseful. She was concerned I think - I don't want to say what she - she seemed articulate. She knew what she was saying. She could walk. She could talk. She was defying me about going to bed. I had no reason to suspect that she was dazed, confused."
Ms Ritter said that during the night she got up to check on the complainant, because she was concerned for her mental health, in light of her sister, Ms Woelms, having told her on the Thursday night that the complainant had mental health issues. She saw that the complainant was watching "a video clip or a movie" on an electronic device. The complainant in evidence denied that she was awake.
Ms Ritter gave evidence that the following morning she asked the applicant what he had been doing. The applicant replied to her that the complainant:
"… had got sort of upset about her life, was feeling insecure, saying something about her looks and he was consoling her. He didn't want to be up with her but they'd all gone to bed and left [him] there with her … he had his arm around her and he gave her a kiss on the cheek. He was consoling her and he said next minute her tongue was in his mouth and I was just like, okay I've heard enough …"
Ms Ritter confirmed she woke the complainant the next morning, again wanting to give her reassurance because she was concerned about the complainant's mental health. She said to the complainant:
"… I don't know what was going on out there last night but I want you to know that I am not angry at you and I don't want you to lay in bed all day being embarrassed to face me."
According to Ms Ritter, the complainant reacted as follows:
"… she looked at me like she didn't know what I was talking about and I did not believe that she didn't know what I was talking about and I said: 'Come on … something was going on out there last night' and she turned her head away from me and she said 'Oh God don't tell me that happened'…"
In response, Ms Ritter said to the complainant:
"Well something was going on and I just want you to know that I am not angry at you and I'm not sure how you're coping with things in your life right now and if you want to come and talk to me about things, you can, and if you don't want to talk to me about your problems then that's okay too but just please know that I know you're sorry and I am not angry at you."
[9]
The meeting
Later that morning, following the complainant's complaint to her mother, there was a heated confrontation in the bigger house ("the meeting"). Present were VD, Ms Woelms, Ms Ritter and the applicant. VD had left the complainant behind in the other house. VD's evidence was that Ms Ritter said that she had heard something and came out. She saw the applicant and the complainant sitting on separate lounges and said to the applicant, "What are you doing", and told them to go to bed. Ms Woelms also gave evidence that Ms Ritter had said she saw them sitting on separate lounges. Ms Woelms asked the applicant what he had done, and he replied, "I've done nothing. Nothing happened". VD then said, "What the hell have you done to my daughter? I've got a distraught daughter. You must've done something", to which he replied, "Okay, I kissed her". Ms Woelms then demanded that he leave. The applicant and his wife packed up immediately and left the property.
The applicant's evidence as to what he said at the meeting was, "Well, I kissed her. I did not sexually assault her". This version was supported by Ms Ritter, but had not been put to either VD or Ms Woelms. In her evidence, Ms Ritter denied that she had said that she saw the applicant and complainant sitting on separate lounges. Her evidence as to what she said was as follows:
" … [VD] said, 'I just want to know the truth' and I said, 'Well you go up to your daughter and you get her to tell you the truth because when I came out here last night they separated on the lounge and they were fully clothed and I understand that might not sound very good to you … but she said it wasn't Ken and you need to go and get her to tell you the truth.'"
As well, counsel for the applicant brought out that Ms Ritter had included a version in her statement to police to the effect that she told VD and Ms Woelms that on the previous night, the complainant had said "sorry" to her. Neither of these versions was put to VD or Ms Woelms, and they were not corroborated by the applicant's evidence.
[10]
Further evidence of complaint
The complainant's evidence was that over the Saturday morning, her memory of what had happened the night before returned. She recalled more detail while her mother was at the meeting, including the sexual intercourse. She said that when her mother returned:
"I didn't tell her straightaway because she just came running back saying 'You didn't get raped he just kissed you' and … I just was crying … My memory was still quite vague at that point so I don't think I told her everything that I could remember … I don't think I said anything at that time I think I waited till the night time … I don't think I told her exactly because it was just too hard to say."
The complainant said that following her mother telling her that she hadn't been "raped", she later told her mother: "there was more than that, but it wasn't sex", meaning penile-vaginal intercourse.
VD gave evidence that the following day, being Easter Sunday, the complainant told her that she was "remembering everything" and then told her mother everything she remembered to that point. VD said that, a month later, she made notes of that conversation and gave them to police, who incorporated the contents into a statement by her dated 25 June 2016. Parts of the content of that conversation were led from VD, by consent. VD's account of what the complainant said included that the applicant made her a drink before they went onto the verandah, that when she woke on the rug the applicant was on top of her trying to kiss her and that she moved her head from side to side to stop him. In response to VD telling her that Ms Ritter had said she came into the room and saw them sitting on different lounges, the complainant responded: "That didn't happen I don't remember Helen coming into the room I just remember Helen coming into me in the morning".
The earliest record of what the complainant told police, which was also the first contemporaneously-made record, came from the evidence of Sergeant Karina Nixon, who said that on Easter Monday, in response to a phone call, she and a colleague attended the complainant and her mother and made a notebook record of her complaint. The notebook entry was read in its entirety in the trial. It was as follows:
"[The complainant] was quiet and appeared to be quite timid. I said, '… I'm Karina Nixon from Newcastle police. Can you tell me what happened?' She said, 'We were playing pool and everyone went to bed. We were on a family holiday. I was talking on the veranda to Ken and he told me that I was beautiful. I went inside and passed out on the floor. I woke up with him on top of me, kissing me. I moved my head away but I couldn't get up. He kept putting his hands down my shorts. He didn't say anything. He put his fingers into my vagina. After about 10 minutes Helen came in. I think I got up to get away'. I said, 'Had you been drinking?' She said, 'I'd have [sic] about 12 to 14 vodkas'. I said, 'How drunk did you feel?' She said, 'I couldn't move properly'. I said, 'Did you tell anyone what happened?' She said, 'I told mum about 10 to 10.30. Mum confronted Ken about midday and then Ken and Helen left.'"
[11]
Evidence of DNA
Two statements of agreed facts, pursuant to s 191 of the Evidence Act 1995 (NSW), were tendered. One of the statements included the following sentence:
"DNA matching the accused was found on various parts of the pants and underpants belonging to [the complainant], that were worn by her on the evening of 25 March 2016 and morning of 26 March 2016."
The statement noted that other unknown contributors' DNA were also located on the two garments and that it was possible that the contributions by the accused and others were as a result of secondary transfer.
[12]
Evidence of the applicant's good character
The applicant was a retired dentist with no prior criminal convictions.
The applicant's sister gave evidence of his good character. She worked as a teacher and was married with five children. She described the applicant as truthful and "a kind, generous, loving brother". She had been to many parties with the applicant and had not seen him acting inappropriately with women of any age. In her experience, he acted respectfully towards women and the allegations were very inconsistent with his character as she knew it.
[13]
An attack on Ms Ritter's credibility
The Crown attacked Ms Ritter's credibility, suggesting that her evidence of what she saw in the lounge room was deliberately untruthful, in order to assist the applicant. The version by VD and Ms Woelms of Ms Ritter telling everyone at the meeting that the applicant and the complainant were on "separate lounges" when she entered, was exculpatory of the applicant and inconsistent with her evidence of what she saw.
Ms Ritter said that the following day, being Easter Sunday, the applicant told her that he had touched the complainant's top and:
"… on the outside of the crotch initially and then there had been an indication from [the complainant] verbally to go further than that and I believe, my recollection is that he put his hand down inside of her shorts on the outside of her pants."
Ms Ritter agreed that, when police took her statement in September 2016, she had not included this conversation, nor had she included it in a handwritten account that she made around 30 March 2016 and sent to the applicant's solicitors.
[14]
The grounds of appeal
The applicant relied upon the following grounds of appeal:
"1. The conviction cannot be supported having regard to the evidence.
2. There was a Miscarriage of Justice in that the Crown's closing address to the Jury:
a. relied on the complainant's character by suggesting that the complainant was not the kind of person who would have engaged in sexual activity with an older man in the circumstances of this case;
b. reversed the onus of proof in that he suggested that the complainant was 'quiet and appeared to be quite timid' and that 'the jury might think that she would not be the type of girl, when sober, to unload her problems…' or 'the type of person' who would seduce and engage in sexual activity consensually with an older man;
c. Implied, by portraying the complainant as a 'shy', 'quiet', 'reserved', 'timid' 'girl' that the complainant lacks sexual experience in the sense understood by s 293(3)(a) Criminal Procedure Act, in the absence of material, admissible or otherwise, to support that proposition. He further diverted the jury from the actual evidence of the witnesses at the trial (including the complainant's family members) that she was neither quiet nor timid not reserved nor shy on the night of the events leading to the convictions. Further, by raising this in his final address, he precluded the defence from making an application pursuant to s 293;
d. directly implied that the applicant was of bad character by suggesting that 'a man of good character' would not have failed to publicly state that the complainant initiated the sexual conduct, but only denied sexually assaulting the complainant when confronted about his conduct."
It is convenient to consider ground 2 before ground 1.
[15]
Ground 2: Miscarriage of justice
The four aspects of this ground are founded on alleged shortcomings in the Crown's address, to which objection was not taken at the time. Accordingly on this ground, pursuant to r 4 of the Criminal Appeal Rules (NSW), leave is required to appeal.
[16]
Reversal of the onus of proof: grounds 2(a) and (b)
The submissions in support of this ground do not identify the relevant passages in the transcript to which exception is taken. Although there is a reference in the ground to the word "shy" in quotation marks, the Crown appears not to have used that word in his address at all. Otherwise, the first three aspects of the ground, being 2(a)-(c), appear to relate to the following passages from the transcript of the Crown's address:
"What's your impression of [the complainant] after seeing her on the TV screen giving her evidence last Wednesday and Thursday? It's a matter for you. I suggest you would find her to be intelligent, articulate, definitely quietly spoken, stoic. According to her little sister [AD] she was a girl who tended to keep things to herself, this is [the complainant].
There's no evidence that [the complainant] was telling all and sundry that she started to piece together her recall of what had happened. You recall what [AD] said about her big sister when she too was at the town house at Kotara on Easter Monday, when the police had arrived. She couldn't really hear what was being discussed. She didn't make it her business to do so and her sister didn't make it her business to tell her sister what had happened.
The more convincing account of what [the complainant] was like comes from [AD]. A recall of singing in the car on the way up, but not on the way home. Her sister who she enjoyed a friendly rivalry with … [AD's] little snippets about her big sister tie in nicely with the observation of Sergeant Karina Nixon, the officer who gave evidence yesterday … She described her as, and she was quoting from a statement that she made, '[the complainant] was quiet and appeared to be quite timid'. The Crown suggests to you that that description could very well fit [the complainant] that you saw on the screen last week and suggests that you might think that she would not be the type of girl, when sober, that would be telling a 60 year old man that she hardly knew, 19 year old [the complainant], unloading her problems, her personal problems. Maybe she'd talk about problems at uni, but [the complainant] that you saw last week, [the complainant] that was observed by Sergeant Nixon, [the complainant] that was described by little sister [AD], is she the sort of person who would say - the type of person, from what you saw, do you think she'd be the type of person who would say, when sober, to a 60 year old man, after she'd started to seduce him, to 'Stick it in me'?"
And later:
"Context. Sit back and look at what [the complainant] says happened on that Saturday morning, both before and after she finally got some sleep. It was put to [the complainant] that she in effect, latched on to the accused, started telling him about her personal problems and put her tongue down his throat and she and the accused kissed and things progressed to the point of the accused suddenly stopping and taking his hand out of her pants. If you believe her account of what happened, the night progressed as an enjoyable Friday of the long weekend. Once again, maybe she talked about uni problems, but if she's sober, is she going to be unloading with a person she hardly knows? The reserved girl you saw on the screen last Wednesday and Thursday? It's hard to imagine a sober [the complainant], 19 at the time, wanting to latch on to a 60 year old man in a five bedroom house full of, take out of the equation her sister [AD] and her half-sister [SH], the house is full of people she doesn't know. Would she act like that if she was sober?"
In written submissions, the applicant contended that the Crown was effectively inviting the jury to ponder "Why would such a nice girl do this?", in relation to the applicant's account of the complainant revealing her personal problems and acting in a sexually provocative manner towards him, and that to do so reversed the onus of proof.
In my opinion, neither of the above passages extracted from the Crown address could be accurately paraphrased, in part or as a whole, in those terms. Rather, the Crown specified aspects of the complainant's presentation as a witness and of the descriptions and evidence of her behaviour by those who knew or had observed her, that were at odds with the behaviour attributed to her, in terms of what she said and did, by the applicant when they were alone. That was an exercise in plausibility that the jury were entitled to do, in determining whether the applicant's account, either by itself or in conjunction with other evidence, left them with a reasonable doubt as to his guilt on either count. Such an exercise does not constitute a reversal of the onus of proof in relation to the counts on the indictment. Indeed, it would have been artificial for the jury to ignore any significant conflicts in the evidence between the complainant's behaviour as described by the applicant, and their independent assessment of her, having regard to the evidence.
[17]
Evidence of the complainant's sexual experience: ground 2(c)
The relevant parts of s 293 of the Criminal Procedure Act 1986 (NSW) are as follows:
"293 Admissibility of evidence relating to sexual experience
(1) This section applies to proceedings in respect of a prescribed sexual offence.
(2) …
(3) Evidence that discloses or implies:
(a) that the complainant has or may have had sexual experience or a lack of sexual experience, or
(b) has or may have taken part or not taken part in any sexual activity, is inadmissible.
(4) Subsection (3) does not apply:
(a) if the evidence:
(i) is of the complainant's sexual experience or lack of sexual experience, or of sexual activity or lack of sexual activity taken part in by the complainant, at or about the time of the commission of the alleged prescribed sexual offence, and
(ii) is of events that are alleged to form part of a connected set of circumstances in which the alleged prescribed sexual offence was committed,
(b) if the evidence relates to a relationship that was existing or recent at the time of the commission of the alleged prescribed sexual offence, being a relationship between the accused person and the complainant,
(c) if:
(i) the accused person is alleged to have had sexual intercourse (within the meaning of Division 10 of Part 3 of the Crimes Act 1900) with the complainant, and the accused person does not concede the sexual intercourse so alleged, and
(ii) the evidence is relevant to whether the presence of semen, pregnancy, disease or injury is attributable to the sexual intercourse alleged to have been had by the accused person,
(d) if the evidence is relevant to:
(i) whether at the time of the commission of the alleged prescribed sexual offence there was present in the complainant a disease that, at any relevant time, was absent in the accused person, or
(ii) whether at any relevant time there was absent in the complainant a disease that, at the time of the commission of the alleged prescribed sexual offence, was present in the accused person,
(e) if the evidence is relevant to whether the allegation that the prescribed sexual offence was committed by the accused person was first made following a realisation or discovery of the presence of pregnancy or disease in the complainant (being a realisation or discovery that took place after the commission of the alleged prescribed sexual offence),
(f) if the evidence has been given by the complainant in cross-examination by or on behalf of the accused person, being evidence given in answer to a question that may, pursuant to subsection (6), be asked,
and if the probative value of the evidence outweighs any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission.
(5) A witness must not be asked:
(a) to give evidence that is inadmissible under subsection (2) or (3), or
(b) by or on behalf of the accused person, to give evidence that is or may be admissible under subsection (4) unless the court has previously decided that the evidence would, if given, be admissible.
(6) If the court is satisfied:
(a) that it has been disclosed or implied in the case for the prosecution against the accused person that the complainant has or may have, during a specified period or without reference to any period:
(i) had sexual experience, or a lack of sexual experience, of a general or specified nature, or
(ii) had taken part in, or not taken part in, sexual activity of a general or specified nature, and
(b) the accused person might be unfairly prejudiced if the complainant could not be cross- examined by or on behalf of the accused person in relation to the disclosure or implication,
the complainant may be so cross-examined, but only in relation to the experience or activity of the nature (if any) so specified during the period (if any) so specified.
(7) On the trial of a person, any question as to the admissibility of evidence under subsection (2) or (3) or the right to cross-examine under subsection (6) is to be decided by the court in the absence of the jury.
(8) …"
The term "prescribed sexual offence" is defined in s 3 of the Criminal Procedure Act 1986 to include offences pursuant to ss 61I and 61L of the Crimes Act.
It is not apparent how the applicant submits that s 293(3)(a) was relevant, since he has not explained what precise application would have been made, had he known in advance what the Crown intended to submit to the jury. Assuming that the Crown had alerted the defence at the outset of the trial of the nature of its intended ultimate submission to the jury in the extracted passages, the applicant would first have had to establish that, using the words of ground 2(c), those passages:
"… [i]mplied, by portraying the complainant as a 'shy', 'quiet', 'reserved', 'timid' 'girl' that the complainant lacks sexual experience in the sense understood by s 293(3)(a) Criminal Procedure Act …"
Such an application would not have been likely to succeed. The term "shy" was not used. The submission assumes that a person who is "quiet", "reserved" and/or "timid" is necessarily sexually inexperienced, which does not follow. The term "girl", as defined in the Australian Oxford Dictionary and the Macquarie Dictionary, includes the meaning "a young woman". While I would not endorse the term "girl" rather than "woman" to describe a 19-year-old female, it has accepted currency in the community as meaning a young woman, which the complainant was. Further, in the excerpted four paragraphs, the Crown twice referred to the complainant's age at the relevant time, being 19 years old.
It was open to the Crown to submit to the jury that, applying their life experience, it would be surprising for the complainant, aged 19, to be sexually attracted to the applicant, aged 60, particularly to the point of proactively tongue-kissing him and inviting penile-vaginal sexual intercourse.
[18]
Implication of applicant's bad character: ground 2(d)
Ground 2(d) relates to an aspect of the cross-examination of the applicant, as to why he did not tell the complainant's mother and others at the meeting that the complainant had initiated the sexual contact between them. The effect of his response was that firstly, it was inappropriate in view of the hostility being levelled at him at the meeting, particularly from Ms Woelms. Secondly, because Ms Woelms was yelling at him, there was no opportunity to do so. It was not in dispute that Ms Woelms was very hostile to the applicant at and after the meeting, and that once he admitted kissing the complainant, she told him to immediately leave the premises.
In his address, the Crown said:
"Does the account the accused gives make sense? Bear in mind, he doesn't have any onus of proof. He doesn't have to prove what he said happened, happened. But that said, what he said is part of the evidence you have got to consider and we have a man who, on the morning after his sexual encounter with [the complainant], a sexual encounter that he says she initiated, he's being accused of being a predator by Tracey Woelms.
We know that [VD] has come from her distressed daughter. Other than admitting to having kissed her, and denying that he'd sexually assaulted her, he makes no mention of [the complainant] having actually kicked things off.
The Crown suggests that as Tracey Woelms was unloading on him, both out on the veranda and later in the morning when she apparently was following him around, giving it to him, a man of good character would pipe up and say, 'Listen, she was coming on to me'. Surely he would be getting that out there, putting some balance into that mayhem that was unfolding at [the house where the encounter took place]."
In her address, counsel for the applicant dealt with the issue succinctly:
"He is described as someone whose personality doesn't change when he's drinking and you might think that someone, who has the character that he has been described as having and he's now 62, someone who is respectful would hardly engage in suddenly saying that the young girl had initiated it all in the context of what was going on."
In my opinion, the cross-examination of the applicant on that issue, and the manner in which the Crown addressed the jury on it, was not particularly probative of the factual issues in dispute and was of little assistance to the Crown case. Although tactically questionable, it was open to the Crown to test his assertion that, as a person of good character, his account was to be preferred, including his relevant behaviour at the meeting. A submitted inconsistency between his behaviour and what the jury might expect from the applicant as a person of prior good character did not imply that the applicant was in fact a person of bad character.
In his address, the Crown fairly conceded the relevance of good character to the jury's task, which was reinforced by a direction by the trial judge early in the course of his summing up.
[19]
Misrepresentation of the complainant's sobriety
In written submissions, ground 2 was developed to contend that in the same passages the Crown also misrepresented the evidence as to the complainant's sobriety. The applicant submitted that there was no evidence to the effect that she was sober at the relevant time, and therefore, her manner and behaviour when she is sober was irrelevant.
The witnesses agreed that all the adults were drinking alcohol during the night, and were affected to varying degrees. There were various descriptions of the complainant's state of sobriety during the evening. Her mother, who retired to the other house at around 11:30pm, described the complainant as "tipsy" at that point. Ms Woelms went to bed shortly after VD left and described the complainant before she left:
"I'd call her happy … I remember at the doorway [the complainant and her mother, VD] were having a bit of a dance together … [VD] just wanted to hug her and kiss her goodnight and [the complainant] is trying to dance and going, 'Come on, Mum, don't go to bed yet.'"
Linda Allen thought the complainant was "intoxicated", before her mother left the house. Following the departure of VD, and Ms Ritter retiring to her bedroom, the applicant and complainant played pool with Linda Allen and her daughter Kate Allen. The complainant's evidence was that she continued to drink vodka during these games. Kate Allen thought she was drinking water, other than dark-coloured drinks that she saw the complainant and applicant "cheers-ed" each other with. She said that she retired after her mother, but had a cigarette on the verandah first.
Linda Allen said that she did not notice the complainant drinking alcohol during these pool games, but assumed that she did. She went to bed about two hours after VD left the house, thus suggesting a time of around 1:30am, and described the complainant as "fine" at that time.
Three witnesses gave evidence as to the complainant's apparent state of sobriety at the time of the alleged assaults: the complainant herself, the applicant and, immediately after the assaults, Ms Ritter. As noted earlier, the complainant's evidence was that she was "drunk".
The applicant was asked how the complainant appeared, in terms of her sobriety, at about midnight. He said: "She was, you know, merry, tipsy, I don't know". He was asked how she appeared around 2:00am, and he replied: "Oh she seemed fine. She was having a good time. She was playing [pool] better than me". He was then asked how she was at the time he got the glasses of water, which on his account was immediately before the conversation that led to the sexual contact:
"Q. Again, how did she seem in terms of her capacity to function?
A. She was fine."
Ms Ritter's evidence was that over the evening she saw the complainant have three to four alcoholic drinks. She said that when she (being Ms Ritter) went to bed, which was as VD was leaving to retire to the other house, being about 11:30pm by VD's evidence, Ms Ritter "didn't think of [the complainant] as being intoxicated". As to the time she observed and had a conversation with the complainant in the lounge room immediately following the sexual contact with the applicant, she again gave the same answer. She was asked:
"Q. And how did [the complainant] appear to you at that stage, and what I'm asking is what was the state of sobriety, intoxication?
A. I didn't think of her as being intoxicated. I thought of her as being terribly embarrassed."
Although neither the applicant nor Ms Ritter described the complainant as "sober", their evidence, contrary to that of the complainant, was to the effect that at that time, her functioning was not apparently affected by alcohol. It was open to the Crown to invite the jury to contemplate whether, based on their assessment of the complainant, there was a reasonable possibility that she may have acted in the manner they described, if she was had been in that state of sobriety.
The Crown's submissions were intended to address the defence scenario that the complainant spoke candidly to the applicant about her personal problems, instigated tongue-kissing and proactively sought sexual intercourse with the applicant at a time when her capacity to make such decisions was unaffected by alcohol, as implied by the evidence of the applicant and Ms Ritter. Indeed, the defence case as advanced by counsel for the applicant, Ms Evers, was that the complainant was either sober or approaching sobriety at the time of the sexual contact. In her opening address to the jury, she said:
"… gradually [the complainant] had stopped drinking and in fact she wasn't drinking very much towards the end of the night and was in fact getting more and more sober."
Counsel for the applicant put to the complainant in cross-examination that after her mother went to bed, she drank only water and "started sobering up", having had only one alcoholic drink subsequently, and at the time she and the applicant were playing pool, she was winning because she was "sobering up". In an exchange with the trial judge before addresses, counsel for the applicant said:
"Every witness, both who are pro, if I can put it that way, pro [the complainant], all say that she's quite sober, she goes to bed late, she's playing pool, she's obviously compos [sic]."
Following the Crown's address, counsel for the applicant did not make a submission objecting to the aspect of the Crown's address now complained of and, contrary to what she had said to the trial judge before addresses, submitted to the jury:
"The Crown has, as you've heard, repeatedly gone on about the fact that [the complainant] was young and for some reason kept saying she was sober. There's no suggestion she was sober, but as part of his whole submission to you was that she was sober, sober, sober, sober. 'Would a young sober person do this?' There's no suggestion she was sober. The issue here is whether she was as intoxicated and so out of it as she says she is."
The trial judge, in summing up to the jury, concisely summarised the submissions of both parties on the point, to which no exception was taken by them. The jury deliberated from 1:13pm on Tuesday 5 February 2019 until the following Monday morning and had the trial transcript. In my opinion, this aspect of ground 2 does not give rise to a concern that the jury would have misunderstood the evidence as to the complainant's state of sobriety or the submission that the Crown sought to make.
[20]
Conclusion in relation to ground 2
The applicant was represented by a very experienced junior counsel, in a trial that involved less than five days of evidence. At the conclusion of the Crown's address, none of the matters in ground 2, including the fifth matter raised in submissions, was raised with the trial judge. Two were dealt with in the applicant's address to the jury. Ground 2 in each of its aspects is without substance and in my opinion, leave to appeal should not be granted.
[21]
Ground 1: The convictions cannot be supported having regard to the evidence
This ground does not involve "a question of law alone" and therefore the applicant requires leave to appeal pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW). The principles that apply to an unreasonable verdict ground of appeal are well known. In Dickson v The Queen (2017) 94 NSWLR 476; [2017] NSWCCA 78 Bathurst CJ said (Johnson and Fullerton JJ agreeing) at [84]-[85]:
"The principles on which a court will set aside a verdict as unreasonable are well established. In SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [11]-[14], the Court stated the approach to be adopted was that laid down in M v The Queen (1994) 181 CLR 487; [1994] HCA 63 at 492-494, namely that the Court is required to make its own 'independent assessment of the evidence'. If after taking into account the primary responsibility of the jury in determining the question of guilt or innocence and the benefit of the jury having seen or heard the evidence, the Court is left in doubt as to the reasonableness of the verdict, the verdict should be set aside. In M supra the Court also stated (at 494) that '[i]n most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced' and '[i]t is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt … that the court may conclude that no miscarriage of justice occurred': see also MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [59].
As was pointed out by Hayne J (Gleeson CJ and Heydon J agreeing) in Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113], for a verdict to be unreasonable it is not enough that a review of the evidence shows only that it was possible for a jury to reach a different conclusion. However, for a court to conclude there was no miscarriage of justice, it is not sufficient that there was evidence on which a jury could convict. If after giving full weight to the primacy of the jury, the court is left in reasonable doubt as to the verdict, it is only where the jury's advantage in seeing and hearing the evidence is capable of resolving the doubt that the court can conclude that there was no miscarriage of justice."
The applicant advanced a theory at trial that the complainant had deliberately fabricated her allegations of him sexually assaulting her, motivated by her embarrassment at her sexual involvement with the much older applicant, who was present with his partner Ms Ritter, and fear that she would tell her mother. In written submissions in respect of this ground, the applicant submitted that aspects of the complainant's evidence were implausible, contradictory or contrary to other evidence in the trial that was reasonably reliable, and that when considered in combination, it was not open to the jury to be satisfied beyond reasonable doubt that he was guilty of the offences.
[22]
The complainant's claim they went onto the verandah contradicted by other evidence
The complainant said that she and the applicant went onto the verandah after playing pool, while the applicant said they did not. The applicant sought to discredit the complainant's explanation that they had gone onto the verandah so that the applicant could have a cigarette, by eliciting convincing evidence from Ms Ritter and her family that he was not a smoker. However, the complainant's evidence that the reason they went onto the verandah was so that the applicant could have a cigarette was only in absolute terms when it was put to her in leading form. In her evidence in chief, she was uncertain, saying: "I think [the applicant] was having a cigarette or something, so we went on the verandah". When it was put to her that the applicant was not a smoker, she said: "Okay, well we were on the verandah. I'm not a hundred per cent sure if he was having a cigarette or not, I guess. I thought he was".
Accordingly, I do not regard the complainant's evidence as to why they went on the verandah as being contradicted by other evidence.
[23]
The implausibility of the complainant's explanation for sleeping in the lounge room on a rug
The applicant's version did not involve the complainant either sleeping or lying on the floor at any stage. The applicant suggested in written submissions that it was implausible that the complainant would have lain on the rug to sleep, since there was a spare bed in Linda Allen's room, and that the complainant's explanation in evidence as to why she did not was not credible. That explanation was that she "barely knew Linda", since she had met Ms Allen for the first time that day, and she "didn't want to hog her room when she was in there". I also note there was likely a significant age discrepancy, as Ms Allen was there with her daughter and grandchild.
It was suggested that the complainant could have slept in the bedroom occupied by AD and SH. As I noted earlier, the complainant's evidence was she had intended on sleeping in there and had meant to make up a bed on the floor in that room, but had not done so. AD was not asked in cross-examination if there was a spare bed available in that room. In any event, Ms Ritter's evidence was that following her intervention in the lounge room, the following happened:
"I said [to the complainant]: 'Okay. I will make you a bed up in this room', and I turned around to go into the room where her sister and [SH] were and I opened that door."
Therefore, there was no evidence contradicting the complainant's account that there was no bed made up for her in that room.
The applicant accepted the evidence of Ms Ritter that after her intervention in the lounge room, she tried to encourage the complainant to sleep in either Linda Allen's room or that of AD and SH, but the complainant declined both options, instead preferring a chair in the lounge room. That evidence is strikingly consistent with the complainant's account that shortly before, when she came into the lounge room from the verandah, she preferred sleeping in the lounge room to either of the two proposed alternatives.
As to the plausibility of the complainant choosing a rug to a lounge chair, the complainant explained that she was drunk, urgently needed to sleep, usually slept without a pillow and preferred a hard surface. That evidence was not challenged in cross-examination of her sister AD or mother VD, as to their knowledge of the complainant's sleeping habits.
[24]
The implausibility of an absence of complaint or retreat at the time of the assault
The applicant submits that, on the complainant's version of what occurred, it was physically possible for her to call out for assistance from her family and others who were sleeping metres away and her failure to do so was inconsistent with her having been sexually assaulted. On her version, it is also implausible that she did not tell the applicant to stop, given that it took five seconds for her to turn her head to stop the kissing and some minutes before she pushed away the applicant's hand.
In the same vein, the applicant submitted that if the complainant had been sexually assaulted, then following the intervention of Ms Ritter, she would not have volunteered to spend the balance of the night alone, immediately outside the applicant's bedroom and in the same room where the assault had occurred, particularly when she had other, safer, options. However, in order to test the hypothesis, if the jury accepted the complainant's evidence that she was very intoxicated and moments before had been drifting in and out of sleep, that had to be factored in on her decision-making capacity at that time.
Caution must be exercised in gauging the parameters of the likely behaviour of a sexual assault victim vis-à-vis the perpetrator, during and following the assault. Behaviours that may not seem sensible, logical or otherwise plausible to those who have not endured that experience may not necessarily be indicative of implausibility or inconsistency with an allegation of sexual assault: see Rao v R [2019] NSWCCA 290 at [98]. In this case, the complainant explained that when she realised what was being done to her by the applicant, she experienced shock which rendered her unable to speak or move. The movements she eventually made were minimal, and even so, she had no recollection of how she made her way from the rug to the lounge chair. In the experience of criminal courts, those who work with sexual assault victims and as increasingly understood by the broader community, such a reaction is a common feature of the reaction of a victim to sexual assault, and therefore a claim of shock, immobility and silence by a sexual assault complainant is not necessarily indicative of implausibility.
[25]
The complainant's claim that she was drunk was contradicted by other evidence
The applicant submitted that the evidence of others as to how much alcohol was consumed by the complainant, and her apparent state of sobriety, was inconsistent with her claimed state of drunkenness at the time of the sexual contact with the applicant. Multiple witnesses gave evidence that the complainant had alcoholic drinks that evening, including corroborative evidence of her having cruisers and other mixed vodka drinks. However, she was not described by any witness as being "drunk", or otherwise heavily inebriated.
I have already reviewed the evidence relating to the extent to which the complainant consumed alcohol that evening, and her state of sobriety at the time of the sexual contact. Of particular significance is the complainant's evidence that she continued to drink vodka while she and the applicant played pool and while they were on the verandah, which was not contradicted by the applicant. That period of time is not quantified in the evidence, but on the applicant's version, it was long enough for one game of pool and on the complainant's version, one or two games and the period on the verandah. As well, there was the drink with which they "cheers-ed" each other.
Ms Woelms' evidence supported the complainant's account that only she drank from her 750ml bottle of vodka. The complainant's evidence was that her bottle had been full at the beginning of that night and the next morning, she noticed it was almost half empty. Accordingly, the complainant's evidence that she was drunk when she lay on the rug, and indeed was still drunk when she awoke the next morning in the bedroom in which Linda Allen had slept, is consistent with her evidence of what she drank the night before. To the extent that Ms Ritter's evidence strongly implied that the complainant was not drunk, either when Ms Ritter intervened in the lounge room or when they had a conversation the next morning, the jury were entitled to entertain reservations as to the reliability of Ms Ritter's evidence.
[26]
The complainant's apologies to Ms Ritter were inconsistent with the complainant's allegations
The applicant submits that the complainant would not have apologised to Ms Ritter, both immediately following the sexual activity and the next morning, if she did not believe that she was at least jointly responsible for that activity.
The apology made by the complainant when Ms Ritter intervened in the lounge room, according to Ms Ritter, was: "It wasn't him. It wasn't him. It was me. It was me. I'm sorry. Please don't be angry at me". The terms of that apology involved an exoneration of the applicant as well as an acceptance of responsibility. According to the complainant, the words she used were: "Sorry", or "I'm sorry for what I've done", said by her to have been uttered in a state of intoxication and tiredness, and from habit. This is supported by the complainant saying: "When I know I haven't done something right, I just always think it's best to say sorry". Her evidence was that her apology repeated the next morning was one word: "Sorry".
Equally, however, it might be said that if the complainant had fabricated the sexual assaults, it was hardly in her interest to concede an apology to Ms Ritter, but her first complaint to her mother, made minutes after that conversation with Ms Ritter, included the apology she had just made to her, even though she had no memory of what she was apologising for. Her explanation on her version that she presumed she must have said something inappropriate is not implausible, in my view, given what she recalled Ms Ritter saying to her and that she claimed at that point to have no memory of the night's events, but was aware that she had been drunk.
The jury were entitled to reject the evidence of what Ms Ritter claimed in her statement to police that the complainant had said to her that morning, particularly as the complainant had not been given the opportunity to comment on it.
[27]
The complainant's reaction of shock and subsequent drowsiness to the sexual assault
There are two aspects of the evidence that are more concerning, in my opinion. The first concerns the complainant's evidence of her response to the assaults. The complainant's evidence was that, when she awoke on the rug to the applicant kissing her on the mouth, she was in shock and could not move or speak, although after some seconds she managed to turn her head, which had the desired effect of causing the applicant to stop kissing her. It is entirely plausible that in that situation, waking to the realisation that she was being kissed on the mouth would evince a mental and physical response of shock and immobility. However, one normally associates the experience of shock as an adrenaline response. The complainant's evidence was that having turned her head, she again fell asleep which, on its face, might be thought to be an unlikely transition in a matter of seconds from the experience of shock. She did not know how long she was asleep for, describing the experience as "drifting in and out". Similarly, after the sexual intercourse which prompted her to stand up, at which point the applicant felt the back of her thighs, the complainant sat on the other end of the lounge chair and again fell asleep.
To the extent that the proposition of transitioning from shock to sleep in a matter of seconds appears contradictory, it is reconciled by her evidence as to the degree of her inebriation and tiredness. The complainant's account that on re-entering the lounge she realised she had to sleep immediately, to the extent that she effectively dropped down on the lounge floor and fell asleep, is consistent with her evidence of experiencing a significant level of inebriation as well as tiredness, as was her behaviour the following day. She said that when she was woken the next morning by Ms Ritter, she was still "drunk". Her mother gave evidence that when she returned from the meeting and spoke with the complainant, the complainant said she had been vomiting. The complainant said that she slept much of that day, being Easter Saturday. Accordingly, the complainant's evidence of inebriation and tiredness when she fell asleep on the rug, if accepted, resolves any concern arising from her evidence that twice during the incident, she moved from shock into sleep.
[28]
Reliability of the complainant's memories and account
The other evidentiary issue was the reliability of the complainant's evidence as to what occurred on the Friday night after everyone except she and the applicant had retired, given that she awoke on Easter Saturday morning with no memory of those events, and that her memory of it was restored subsequently. This issue was not a feature of the defence case at trial; to the contrary, the applicant submitted to the jury that from the time she was woken by Ms Ritter, the complainant well-remembered what had transpired the night before and chose to concoct a story to mask her role as the instigator of the sexual activity between her and the applicant. However, as part of this Court's independent assessment, if there is evidence that on its face raises an issue of reliability, this Court must be independently satisfied that the complainant's account was reliable, at least with respect to the facts in issue in respect of each count.
The complainant's evidence was that she recalled the kissing and the sexual intercourse "probably an hour" after she first spoke to her mother on Easter Saturday morning, which was by the time that her mother returned from the meeting. However, her mother's note of what the complainant told her on Easter Sunday, although not made contemporaneously with the conversation and not the subject of cross-examination of the complainant, was to the effect that by then the complainant still had not recalled Ms Ritter's intervention. By the next day, Easter Monday, that was part of the account the complainant gave to police.
Prior to speaking to the police on the Easter Monday, the complainant's only awareness of the applicant's account was the feedback from her mother in respect of what was said at the meeting, being that he kissed her, and on the applicant's version of the meeting, had not sexually assaulted her. For reasons earlier expressed, the jury were entitled to place little weight on what Ms Ritter told police that she had said at the meeting.
The complainant's account, given as early as on the Easter Monday to police, was partly corroborated by the agreed statement of facts as to the results of the testing of DNA swabs taken from her clothing, as well as the evidence of the applicant as to the sexual contact between them, which in itself is indicative of the reliability of the complainant's independent recollection. The applicant's evidence confirmed that he had placed his hand inside her shorts and touched her in the area towards her crotch, thus corroborating the complainant's recollection to that limited extent.
In her evidence, the complainant purported to exercise a degree of care about what she recalled, and what she did not. She explained there remained a gap in her memory from when she was lying on her back on the rug following the sexual intercourse, to when she was standing and leaning against the lounge.
The crucial aspect of the complainant's evidence as to what occurred was her recollection of the acts that founded each count and whether she had consented to them. Her evidence was that she first had an image or "flashback" of her and the applicant on the lounge shortly after Ms Ritter mentioned "Ken", in Linda Allen's bedroom, and immediately knew she had not consented, and the precise acts of both counts came to her within the first hour. Her evidence of an immediate recollection of there being an absence of consent was corroborated by the terms of complaint that she made to her mother when she first spoke to her, on Easter Saturday morning. She gave a credible explanation as to why she did not tell her mother precisely what had occurred, when she first recalled it shortly afterwards, which was essentially because she was embarrassed. The defence had available to it the notes made by her mother concerning the account given by the complainant on Easter Sunday. There was no suggestion in cross-examination that it did not include the kissing and the sexual intercourse. In any event, they were part of the account she gave to the police on Easter Monday.
In his summing up, the trial judge repeatedly referred to the necessity for the jury to be satisfied not only as to the truthfulness of the complainant's evidence on the facts in issue, but also its reliability, on one occasion referring to it as central to their task:
"The real issue in this case for both counts concerns the reliability of [the complainant's] evidence. Unless you are satisfied beyond reasonable doubt that what [the complainant] said was an honest and reliable account of what happened that night, then you cannot convict the accused."
[29]
Conclusion in relation to ground 1
The jury, properly instructed, clearly found the complainant's evidence to be reliable. Having read the trial transcript and had regard to the other evidence in the trial, I am left in no doubt as to the reliability of the complainant's evidence on the facts in issue and the reasonableness of the verdicts in respect of both counts. In respect of ground 1, I would grant leave to appeal and dismiss the appeal against conviction.
I propose the following orders:
(1) Grant leave to appeal in respect of ground 1;
(2) Dismiss the appeal in respect of ground 1;
(3) Refuse leave to appeal in respect of ground 2.
[30]
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Decision last updated: 27 March 2020