MITCHELL, Malcolm v R

CASES CITED : R v Button [2002] NSWCCA 159, [2002] 129 CrimR 342 R v Murphy [2000] NSWCCA 297

PARTIES: Malcolm MITCHELL (Appellant) Regina (Respondent)

COUNSEL: D DALTON SC (Appellant) P M MILLER (Respondent)

SOLICITORS: Legal Aid Commission (Appellant) Solicitor for Public Prosecutions (Respondent)

IN THE COURT OF CRIMINAL APPEAL CCA 2007/3084

HODGSON JA KIRBY J HISLOP J

21 NOVEMBER 2008 Malcolm MITCHELL v R Judgment 1 HODGSON JA: The appellant was tried before his Honour Sorby DCJ and a jury from 21 February 2007 to 1 March 2007 upon the following two counts: (1) On 21 November 2004 he did have sexual intercourse with [the complainant] without consent knowing that he was not consenting in circumstances of aggravation, namely that immediately before he maliciously inflicted actual bodily harm on [the complainant] (contrary to s 61J(i) Crimes Act 1900); and (2) On 21 November 2004 he did maliciously damage the property of [the complainant], namely a statue (contrary to s 195(a) Crimes Act 1900). 2 The appellant was convicted on both counts; and he was sentenced on the aggravated sexual assault matter to imprisonment for a period of eight and half years with a non-parole period of six years, and on the malicious damage matter for a period of twelve months, to be served concurrently. 3 The appellant appeals against his conviction.

Crown case 4 The Crown case consisted primarily of the evidence of the complainant, which was to the following effect: (1) The complainant was a 55 year old man. On Sunday 21 November 2004 he was at the Oxford Hotel at Darlinghurst having a few beers with a friend TS. At about 8.15 pm another friend TL arrived and they played pool and drank beer. There he also met the appellant, with whom he had had casual sexual contact in 1988 and 2001. By about 10 pm TS and TL had left the hotel, and the complainant asked the appellant back to his unit for a joint. (2) Then the complainant and the appellant took a taxi to the complainant's unit at Woolloomooloo, where they shared a joint and had a fill-in conversation on what had happened since they last met. The complainant went to the toilet. (3) When the complainant came out of the toilet, the appellant was holding a hammer belonging to the complainant. The appellant then hit the complainant in the cheekbone with the handle, and said, "get down or I'll kill you". The complainant sat down, and the appellant said that "you're a black fella who doesn't go with black fellas"; that he had offered $1,000 to TS and $3,000 to TL and they didn't want him; and that the complainant was keeping white boys for himself. The appellant struck him with his fist on his right ear, and said, "I'll kill you". (4) The appellant then upended a table in the room so that porcelain statues fell off and shattered. He then saw a life-size styrofoam statue of Napoleon in the complainant's room and said, "What are you doing with that?" And went over saying words including "Captain Cook" and "occupation", and he smashed at the statue with a hammer, threw it over and jumped on it, causing it to break into three pieces. (5) The appellant then said to the complainant "take your clothes off", the complainant asked why, and the appellant hit him on the elbow with the hammer really hard. The complainant removed his clothing because he thought that otherwise the appellant would kill him. The appellant then looped a belt of the complainant, reefed it around his neck and his left arm, dragged the complainant to the settee, and said, "get on your back". The complainant did this and said "What are you doing?" and the appellant then hit him above his left eyebrow and again on his cheek. (6) The appellant then said "I'm going to show you what a black fella does" and said "get your legs up", and hit him on the Achilles tendon; and when the complainant's legs were up, the appellant hit the complainant on the buttocks and testicles with the belt (which had broken) and pushed the handle of the hammer into his anus, to the extent of about 8 to 10 inches. He then pulled it out and licked the complainant's sphincter. (7) The appellant then said "You can put your legs down and let me help you tidy up", to which the complainant said "You put me in fear of my life please just go". The appellant then went to the door, opened it, and said in a little boy's voice "You won't tell anybody will you, you won't tell", and left. This was shortly before midnight. (8) The complainant sent a text message to a lady friend VS to the effect that he could not meet her the next day, and then lay on the floor, where he remained until the Tuesday afternoon, apart from getting up when VS and her sister RS came to the unit at 7.15am on the Monday. On that occasion, they were there for about 10 minutes, and the complainant said to them that somebody bashed him. (9) The complainant did not speak to anyone again until VS came to the unit about 2pm on the Thursday, when the complainant told her what the appellant had done in detail, including what he had done with the hammer. (10) At about quarter to six the same day, a friend ML came to the unit, and the complainant told him he had been bashed and raped with a hammer. ML took the complainant to Sydney Hospital, where he was examined by Dr Leaf. (11) On the Friday, the complainant went to Royal Prince Alfred Hospital, spoke to a counsellor at the sexual assault unit, and then went to the police. (12) The complainant in 2005 participated in telephone conversations with the appellant, recorded by the police pursuant to a telephone interface warrant, these conversations occurring on 23 March 2005 (twice), 5 April 2005 and 13 April 2005. 5 Evidence was given by TS and TL of events at the hotel on the Sunday, including evidence from each that the appellant had offered money to have sex with them. TL also gave evidence that he went to the complainant's flat on the Tuesday or Wednesday, and when the complainant said he had been sexually assaulted by the appellant with a hammer. 6 VS gave evidence of receipt of a text message at 12.22am on the Monday "Hi Darls, will have to cancel 2M [tomorrow] that is unless you all can bear to see what a mate has done to me and my home. Not a good look either but then OK XXX". VS and RS visited the complainant at about 7.30 or 8am on the Monday, and found him in shock and shaking. VS said she next saw the complainant on the Tuesday at 1pm or 2pm; when the complainant said he had been raped by a friend, that he had used a hammer and a belt, and had him over the bed. 7 RS gave evidence that she had visited the complainant with VS on the Monday morning, and that the complainant was shaken up and had bruising; and that they'd returned to see him in the afternoon of the same day. 8 ML gave evidence that he took the complainant to Sydney Hospital. Dr Leaf gave evidence that the complainant told him he had been assaulted, giving an account which included that a hammer had been inserted into his rectum, and that this was non-consensual. Dr Leaf's anal examination of the complainant was "unremarkable", and there were no tears or bruising. 9 Dr Patricia Brennan, a forensic specialist, gave evidence that Dr Leaf's findings did not preclude penetration by the hammer handle, as described by the complainant. 10 Ms Sharon Neville, forensic biologist, gave evidence that the DNA profile of the major contributor to the lower 11 centimetres of the hammer handle was the complainant's, while the appellant could not be excluded as a minor contributor; and that the mixture of DNA on the hammer head matched the DNA profiles of both the complainant and the appellant. 11 There was evidence from police officers as to monitored telephone calls, a conversation with the appellant at the time of his arrest and a record of interview with the appellant. 12 There were transcripts of the telephone calls in evidence. The first telephone call included the following exchanges (V.1 is the appellant and V.2 is the complainant): V.1 Well I thought it was a, I thought it was a mutual thing and that's what you wanted.

V.2 What, for you to smash me around with a hammer and stick it up my arse? Are you kidding?

V.1 No, I didn't smash you around with it. I thought that's what you wanted me to do, so that's what I did. And I wouldn't …

V.1 I've got no idea of why you wanted me to do it. You told me you wanted me to do it.

V.1 Put that thing up you with the hammer on it, I dunno. You're confusin' me, mate. Look, just leave it alone, I, where would you like this go? Do you wanna have a, have a coffee or somethin'? 13 The second telephone call included the following exchanges: V.1 Yeah, well neither could I, I was quite surprised at you wanted me to do, myself. So I did what you wanted me to do and then - - -

V.2 Well I didn't really want you to stick a hammer up my arse.

V.1 Well mate, you didn't show much resistance, that's what you wanted.

V.2 What, much resistance with a belt around my neck.

V.2 Yeah, a bit. You know, I still wanna know why it happened?

V.1 Well I don't know why, I, I'm just, I'm tellin' you know I thought that's what you wanted, that's what, well I was pissed out of my brains. 14 In a conversation with police at the time of his arrest, on 14 April 2005, the appellant referred to "S and M" and said he was "real drunk", and also said this: I don't remember hitting somebody a, oh, I might have, I remember his legs were in the air and he goes 'go on, do it, do it, do it for me'. So and I, I said, 'look, I can't, mate,' and I pushed it up a little bit, that's when I took off. I didn't lick his bottom or anything like that … 15 In his record of interview with police later on 14 April 2005, the appellant denied that he had assaulted the complainant physically or that he had inserted the hammer into the complainant's anus or licked the complainant's anus, or that he had deliberately hit the statue of Napoleon, although he said that he may have knocked the statue over as he left the complainant's unit. The appellant said that he remembered the complainant rubbing the handle of the hammer and that he asked the appellant to get on his knees and asked him, "can you see anything going in?", and the appellant told police that he did not touch the hammer or lick the complainant's bottom. The appellant said that he and the complainant "had some smoke and, and he had some trips and other stuff there on his little coffee table … and he had the bottle amyl nitrate … whereas I only have the amyl nitrate if I'm having anal sex … I can't remember if we actually had, if I had done fellatio on him or not. I dunno if, I can't remember if we had, if we actually touched or anything like that, I remember cuddling, remember have a few cones … from the bong with him …"

Appellant's case 16 The appellant did not give evidence and no witnesses were called on his behalf. 17 The following propositions were put to the complainant in cross-examination: (1) That the complainant invited the appellant back to his unit for some brief casual sex; (2) That there had been discussion at the Oxford Hotel between the appellant and the complainant about "S and M" and that this was "S and M" gone wrong; (3) There was discussion between the complainant and the appellant about dominant or passive roles, and about amyl nitrate and amphetamines; (4) That the complainant asked the appellant to take his clothes off so that he could admire the appellant's body, and that they cuddled; (5) That the complainant took hold of the hammer and rolled it around his own thigh area, and that there was discussion on dominant or passive roles, in which the complainant suggested to the appellant that the complainant wanted the hammer involved in the sexual encounter; (6) That there was further conversation between them about the statue of Napoleon in which the complainant became upset and offended and asked the appellant if he was into the dominant role; (7) That the complainant asked the appellant to get on to his knees whilst the complainant was holding the hammer near his own anal area and that he asked the appellant "can you see anything going in?"; (8) That at some stage the appellant went towards the door as if to leave, that there was some yelling and the complainant told the appellant "you fuck off" and at that point the appellant turned round while the complainant was sitting with the hammer between his legs, motioning towards his own anal area with the hammer. (9) That the appellant then headed back towards him and pulled the hammer away from him and threw it away; (10) That as the appellant was coming towards him, that this was when the statue of Napoleon was knocked over; and (11) That the complainant had inserted the hammer into his own anus. 18 The complainant denied these propositions.

Grounds of Appeal 19 The appellant relies on the following grounds of appeal: 1. The trial judge erred in failing to direct the jury in accordance with s 165(1)(c) Evidence Act 1995 with respect to the complainant's ingestion of alcohol and marijuana.

2. The jury's verdict is unreasonable and/or cannot be supported having regard to the evidence pursuant to s 6(1) Criminal Appeal Act 1912.

Failure to direct jury 20 Section 165 of the Evidence Act 1995 is in the following terms: 165 Unreliable evidence

(1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence:

(a) evidence in relation to which Part 3.2 (hearsay evidence) or 3.4 (admissions) applies, (b) identification evidence, (c) evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like, (d) evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding, (e) evidence given in a criminal proceeding by a witness who is a prison informer, (f) oral evidence of official questioning of a defendant that is questioning recorded in writing that has not been signed, or otherwise acknowledged in writing, by the defendant, (g) in a proceeding against the estate of a deceased person - evidence adduced by or on behalf of a person seeking relief in the proceeding that is evidence about a matter about which the deceased person could have given evidence if he or she were alive.

(2) If there is a jury and a party so requests, the judge is to:

(a) warn the jury that the evidence may be unreliable, and (b) inform the jury of matters that may cause it to be unreliable, and (c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.

(3) The judge need not comply with subsection (2) if there are good reasons for not doing so. (4) It is not necessary that a particular form of words be used in giving the warning or information. (5) This section does not affect any other power of the judge to give a warning to, or to inform, the jury. (6) Subsection (2) does not permit a judge to warn or inform a jury in proceedings before it in which a child gives evidence that the reliability of the child's evidence may be affected by the age of the child. Any such warning or information may be given only in accordance with section 165B. 21 Relevant evidence on this matter included evidence from the complainant to the following effect. The complainant drank a couple of beers at his house and then attended the Oxford Hotel at about 8pm and was drinking schooners of New. By 9.30pm he had drunk two schooners of beer and a soft vodka before the appellant joined their group. He would have had another two beers after the appellant joined them, and the appellant also drank one or two schooners. They left the hotel shortly after 10pm and, although he had consumed a couple of beers at home and then four schooners of New and two shots of vodka at the hotel, he said his state of sobriety was "total", explaining "I've been a heavy user of alcohol for a long time and it didn't affect me". When the complainant and the appellant got to the complainant's house, they drank more beers and shared a joint of marijuana. The complainant said the joint and additional beer had no affect on his sobriety but then said "I was slightly stoned but it didn't incapacitate me or make me any less mobile than usual". 22 In the appellant's record of interview, he said this: "...This is, it was consensual and it was, it got a little bit frantic there at one stage because he was doing some sort of chemicals and I don't do chemicals or anything, speed and all that sort of stuff I just, my body, I'm, I'm an athlete and I just couldn't, and over the years I've just had that rush, you know, to have a sniff of that bottle and, and that's all, but, no, and I wasn't, oh, no, I just couldn't take any of that, that speed stuff that he had, and I just, I was already drunk, I think, from the Oxford Hotel because I remember at the Oxford Hotel my mate, he got shut down from drinking, my white mate, and I actually said to one of the bar staff he, he's OK, he's not screaming at anybody, just frustrated. But he nearly got us evicted, because he was being a bit loud. ..". 23 In the trial judge's summing up, the trial judge did not deal with the detail of the consumption of drugs and alcohol by the complainant or the appellant. At one stage, he said this: "In cross-examination [the complainant] said that at the Oxford Hotel there was never any discussion with the accused about S and M, and he had never practised it. He denied that there was, any discussions with the accused about dominant or passive roles. [The complainant] said that in the unit he and the accused had a beer and made general conversation and smoked a joint. He said there was no discussion about amyl nitrite or amphetamines. He said the conversation was friendly. He said the conversation was friendly. He said the accused appeared to be sober." 24 Later, the trial judge said this: "… Before you can convict the accused on the evidence of one witness, you must carefully scrutinise and evaluate that evidence in the light of the criticism made of it by counsel for the accused in regard to count 1 on the indictment. It is only after such careful scrutiny and the evaluation and if you are satisfied that the evidence is truthful, reliable and accurate, that you can use the evidence as a basis of a conviction on charge 1 on the indictment.

I have given you this direction of law in this case because the case against the accused rests entirely on the evidence of the complainant. When that is the position, the direction I have just given you is one I have to give you as a matter of law. The warning is not given to you because I have any particular view abut the evidence. It is because the law requires that I give such a direction to you. " 25 An affidavit has been provided by the appellant's barrister at the trial, which asserts the following: 4. I did not seek a direction from the trial judge that there be a warning under s165 Evidence Act that the evidence of the complainant may be unreliable due to his consumption of alcohol or cannabis. 5. On reflection, the fact that I did not seek such a direction was an oversight and, therefore, an error on my part. To the best of my memory, there was certainly no tactical basis for not seeking such a direction. 6. The decision of Button & Griffin [2002] NSWCCA 159 has been drawn to my attention by senior counsel for the appellant. I did not seek a direction from His Honour regarding the accused's level of intoxication in relation to the consideration of whether the accused knew the complainant was not consenting. On reflection, this was an omission on my part and the request should have been made. 7. The absence of any request for such a direction was an oversight and an error on my part; to the best of my memory, there was certainly no tactical basis for not seeking such a direction. 26 Mr Dalton SC for the appellant submitted that, having regard to the evidence to which I have referred, the level of the complainant's alcohol intoxication was clearly a relevant consideration for the jury. The trial judge should have directed the jury that the complainant's evidence may well have been rendered unreliable as a result of the alcohol and drugs he had consumed leading up to the subject incident: see R v Murphy [2000] NSWCCA 297 at [63]-[93]. 27 Mr Dalton submitted that, while there had been no request for a re-direction in this regard, the affidavit of the appellant's counsel showed that this had been an oversight rather than a tactical decision, and the failure to give the direction as required by s 165 had led to manifest injustice. 28 In my opinion, there was no relevant error by the trial judge and no miscarriage of justice in this respect. 29 The intoxication of the complainant had not been made an issue in the case. It had not been raised in cross-examination. The question of whether, by reason of what the complainant had drunk, the complainant was in a condition such as to affect the reliability of his evidence was not a matter on which the court had knowledge and experience over and above that of the jurors. The same applies in relation to the complainant's evidence that, having shared marijuana, he was "slightly stoned". 30 It had been suggested in the appellant's record of interview that the complainant had ingested "chemicals" or "speed stuff", and it was put to the complainant in cross-examination that he used amyl nitrate, which the complainant denied. In my opinion, that material did not raise a reasonable basis for the trial judge to give any directions to the jury about the possible effect of drugs other than alcohol and cannabis. 31 This case was very different from the case of Murphy, where there was substantial evidence that the complainant was affected by alcohol in a way likely to impact on the reliability of her evidence, and could not even remember getting home after the events which were the subject of the complaint. In this case, in my opinion, a direction in accordance with s 165(c) was not required.

Unreasonable verdict 32 Mr Dalton submitted that the jury's verdict was unreasonable. The jury should not have been satisfied beyond reasonable doubt that the events occurred as alleged by the complainant or that, even if it were the case that such events occurred without the consent of the complainant, it was proved beyond reasonable doubt that the appellant knew that what was done was not consensual. 33 He submitted that the circumstances were that the complainant, who had shared prior sexual encounters with the appellant, invited the appellant back to his unit to share a joint after they had been drinking together at the hotel for some time. The complainant sought to suggest in his evidence that the appellant was sober, even though in a phone conversation of the 23 March, the complainant seemed to accept that the appellant was "pissed out of his brains". The complainant made no complaint as to being sexually assaulted until some two days after the event, despite numerous opportunities. There was no evidence of any injury to the complainant's anus despite his claim of having been sexually assaulted there with a hammer without consent. 34 Mr Dalton submitted that the intercepted telephone conversation displayed the complainant showing uncertainty about what had happened. There were inconsistencies in the complainant's accounts given at various times, for example his statement to VS that the appellant had him over "the bed"; and his evidence at the committal proceedings that he had been hit with the head of the hammer, not the handle as he said at the trial. 35 Mr Dalton submitted that the intercepted telephone conversation consistently and convincingly conveyed that the appellant believed that whatever had happened was consensual, and that the appellant had been seriously intoxicated at the time. These were matters that should appropriately have been drawn to the jury's attention, but were not: cf R v Button [2002] NSWCCA 159, [2002] 129 CrimR 342 at [79]-[86] and [140]-[154]. 36 In my opinion, the reasonableness of the jury's verdict must be assessed having regard to the way the case was conducted before them and the issues actually raised. 37 The appellant's counsel at the trial, in his affidavit, has asserted that it was an error on his part not to have sought a direction from the trial judge regarding the appellant's level of intoxication in relation to the consideration of whether the appellant knew the complainant was not consenting. However, the position taken in the appellant's defence at the trial was that events described by the complainant had not happened at all; and in relation to that approach, it would have been counter-productive to suggest that the appellant was seriously intoxicated at the time. 38 It is true that the intercepted telephone calls would have been consistent with a defence that, although events occurred of the general nature alleged by the complainant, the appellant understood them to be consensual. However, the position adopted in the appellant's record of interview, and in the conduct of the trial, was that events of that nature had not occurred, and in particular, that the complainant had inserted the hammer into his own anus. It would have been open to the appellant to take the position at the trial that the telephone intercepts disclosed a true picture, to a greater extent than the record of interview, which was given in the presence of the appellant's partner. However, that was not the approach taken, and there is and could be no suggestion that this was other than a reasonable forensic decision. 39 The trial judge appropriately directed the jury to the effect that, if they were satisfied beyond reasonable doubt that the events described by the complainant occurred, and occurred without his consent, they also had to be satisfied beyond reasonable doubt that the appellant knew that the complainant was not consenting. The verdict of the jury indicates that they were so satisfied; and having regard to the way the case was conducted, I do not consider that this decision was unreasonable.

CONCLUSION 40 For those reasons, in my opinion, the appeal against conviction should be dismissed. 41 KIRBY J: I agree with Hodgson JA. 42 HISLOP J: I agree with Hodgson JA. **********

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