• Lawyers in Sydney
• Lawyers in Melbourne
• Lawyers in Brisbane
• Lawyers in Perth
• Family lawyers
• Employment lawyers
• Criminal lawyers
• Wills and estates lawyers
• Find a lawyer

I certify that the preceding two [2] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.

Associate:

Date: 13 May 2016

BURNS J:

1. On 17 June 2013, the appellant was found guilty after a trial by jury of one count of sexual intercourse without consent. On 25 July 2013, he was sentenced by Nield AJ to five years imprisonment with a non-parole period of three years. The appellant appealed from his conviction. On 21 August 2014, this Court, differently constituted to the present proceedings, gave a decision on that appeal (O’Rafferty v The Queen [2014] ACTCA 35), quashing the appellant’s conviction and ordering a new trial.

2. In disposing of the appellant’s appeal on 21 August 2014, the Court regrettably overlooked a ground of appeal alleging that the verdict was unsafe and unsatisfactory, resulting in a miscarriage of justice. If that ground of appeal were upheld, the appellant would have been entitled to the entry of a verdict of not guilty, rather than the order that there be a new trial.

3. The Court subsequently determined that it did not have jurisdiction to re-open the appeal: O’Rafferty v The Queen (No. 2) [2014] ACTCA 52. An appeal to the High Court resulted in orders setting aside the order for a new trial, and remitting the matter to this Court for determination of the outstanding ground of appeal.

4. The remitted proceedings came before us on 12 February 2016 at which time we heard submissions confined to the remaining ground of appeal, that the verdict was unsafe and unsatisfactory. I have, for the reasons that follow concluded this ground fails, with the consequence that there should be a new trial based on the determination in O’Rafferty v The Queen [2014] ACTCA 35.

The test to be applied

5. In WA v R [2011] ACTCA 4, this Court considered the well recognised principles set out by the High Court in M v The Queen (1994) 181 CLR 487:

In R v Hillier (2007) 228 CLR 618, a case that related, like the instant one, to an appeal from a decision after a trial by jury in this Court, Gummow, Hayne and Crennan JJ at [20], endorsed what had been set out in M v R (1994) 181 CLR 487 “to provide authoritative guidance to courts of criminal appeal” in the following extract: It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. The passage from M v R is important both for spelling out what it is that the appellant court should look for where evidence is said to lack credibility, and also for the reinforcement it provides for considering the whole of the evidence when considering whether it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.

6. More recently, this Court in TI v The Queen [2015] ACTCA 62 applied, at [136] the principle enunciated by Hayne J (with whom Gleeson CJ and Heydon J agreed) in Libke v The Queen (2007) 230 CLR 559, where Hayne J said:

It is clear that the evidence that was adduced at the trial did not all point to the appellant’s guilt on the first count. But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard. In the present case, the critical question for the jury was what assessment they made of the whole of the evidence that the complainant and appellant gave that was relevant to the issue of consent to the digital penetration that had occurred in the park. That evidence did not require the conclusion that the jury should necessarily have entertained a doubt about the appellant’s guilt.

The appellant’s trial

7. The appellant was tried jointly with KE. The Crown case was that the appellant and KE committed sexual acts on MX (the complainant) on 17 May 2012 or 18 May 2012 at KE’s flat in Griffith in the Australian Capital Territory. The complainant was aged 16 at the time of these events, was living in a refuge and attending a local college. A friend of the complainant, DS, had been staying at KE’s two-bedroom flat from time to time.

8. On 17 May 2012, the complainant and DS went to KE’s flat at about 9.30 pm. The appellant, then aged 41, and KE, then 39 years old, were there as was the appellant’s nephew, UP. It was the complainant’s evidence that she had known KE for approximately two and a half months, and he had given the complainant and DS somewhere to stay on previous occasions when they had nowhere else to go. DS gave evidence that she met KE in December 2011, and approximately two months later she moved into the spare room in his flat. The complainant had also met the appellant on previous occasions and referred to him as Kevin. DS has also met the appellant previously and referred to him as “Rags”. The complainant, DS and KE all gave evidence at trial that the appellant and UP were present at KE’s flat on the night in question.

9. Both DS and the complainant consumed alcohol on 17 May 2012 and were quite intoxicated. DS went to sleep in one of the bedrooms and the complainant remained in the lounge room with the appellant, KE and UP. She continued drinking until she either fell asleep or passed out on a red couch in the living area. She regained consciousness on three occasions, and on each occasion various sexual acts were being committed on her. On the first occasion, much of her clothing had been removed, and KE was touching and licking her breasts. This was the basis of Count 1 on the indictment, alleging that KE had committed an act of indecency upon the complainant without her consent. At that time the appellant was engaging in cunnilingus and inserting his fingers into her anus. These events formed the basis of Counts 3 and 4 of the indictment, each alleging that the appellant engaged in sexual intercourse without consent. While this was occurring, UP was present.

10. The complainant lost consciousness again and later awoke. Someone was kissing her, and an unknown person had inserted his penis into her mouth. At the same time an unknown person was putting his fingers or an object into her vagina. The complainant lost consciousness again, and awoke on the third occasion to find KE on top of her engaging in penile/vaginal sexual intercourse. This was the basis of Count 2, an allegation against KE of sexual intercourse without consent. At some stage, DS, who was sleeping in a bedroom, awoke and left the flat after an argument with KE. Evidence suggested that DS left the flat at about 5.30 am. Only the complainant and KE were in the flat at that time. The complainant awoke later that morning in one of the bedrooms, dressed only in her bra and T-shirt. She got dressed and left the house. KE was asleep in the lounge room when she left.

11. The complainant went to school that morning and told two friends, HG and KQ, as well as DS, that she had been raped and that three men, KE, the appellant and UP, were involved. She was observed to be dishevelled and distressed. The zip of her pants was broken. The complainant contacted the refuge where she was staying and was picked up and taken to the refuge. The clothes she was wearing at the time of the incident were bagged, and she did not shower.

12. Later that morning the complainant was examined by a medical practitioner at Canberra Hospital, where linear abrasions to her genital area, consistent with blunt force trauma and friction, were observed. The complainant reported marked tenderness to her vagina and anus. Following this medical examination the complainant was interviewed by police.

13. Police executed a search warrant at KE’s flat at about 12 am on 19 May 2012. Both KE and the appellant were present at the flat, and were arrested. A subsequent forensic examination of KE’s underpants revealed that the DNA was consistent with that of the complainant. KE participated in an interview with police in which he admitted that both the complainant and DS had been at his flat on the night in question, but denied that any sexual activity took place. KE gave evidence at trial to the same effect, and his evidence that the appellant was present at the flat on the night in question was not challenged by the appellant in cross-examination. The appellant did not participate in any interviews with police and did not give evidence at the trial.

14. In respect of the appellant, the jury returned verdicts of guilty in respect of Count 3 (cunnilingus) and not guilty in respect of Count 4 (anal intercourse). The jury returned verdicts of guilty in respect of both counts against KE.

The evidence of the complainant concerning the appellant

15. The complainant’s interview with police on 18 May 2012 was recorded and played at the trial as her evidence in chief, as permitted by Division 4.2A of the Evidence (Miscellaneous Provisions) Act 1991 (ACT). At the commencement of the interview she gave a description of the relevant events:

A8 Either from the best of knowledge I was raped by two or three guys from twelve am this morning onwards to I don’t know what time. Um, what happened was I met up with a friend and we were going to go to her mate’s house, um, she’s known him for a while, so I thought it would be all “g”. Um, before then, I was drinking alcohol, by the time I got to my friend friend’s house, who is [KE], who lived at Manuka [redacted for legal reasons]. I was very drunk and tired. When we got there, my friend went and laid down on the bed and went to sleep. I stayed out in the lounge room and chatted to the people that were there, which included [KE], Kevin and [UP], Kevin’s nephew.

Q9 Yep. A9 After that I had a little bit more to drink then I finished drinking at around ten thirty, eleven. After getting to [KE]’s at, I think nine thirty, nine o’clock, I’m not too sure on the time. Um, I – yeah, pretty much I went and checked on my friend, she was asleep, so I was like, all right, cool. I came back out, have another drink, um, not feeling too good. I lied down on one of the couches. And I don’t know, um, I passed out at like – I don’t know, eleven forty-five, midnight. And then I don’t know what happened, but I do remember like kind of waking up and seeing three men around me, two were on top of me, one was licking my genitals, the other was sucking my nipples and playing with them. Um, then I don’t know what happened. Then the next time I went back and passed out. And then what happened was then the next time I opened my eyes, [KE], I think or Kevin, I don’t know, someone was fingering me. And then I went back into unconsciousness and then, yeah, the next time I opened my eyes, um, yeah, um, [KE] is now on top of me and has put his penis into my vagina. I couldn’t do much because one, I was underneath him, two, I think Kevin was kissing me, so I couldn’t talk and all that. And I didn’t feel like I could like move at all. And then pretty much, I pass out again and I wake up in the morning and pretty much I remember I was asleep on the couch. I vaguely remember like the things that I remember seeing, like to me it’s like really did that happen or is that a dream or yeah. And then when I awoke, I was on a bed with no clothes on from the waist down. I had my bra on, and my T-shirt that I was wearing. Um, I hopped out and looked around for my clothes. Um, I couldn’t find my underwear, I found boxers that I was wearing and my pants. Put them on, I saw [KE] asleep on the couch, and Kevin and [UP] were no where to be seen. They must have gone back to wherever they were staying. Um, and yeah, I left as soon as I could. Walked, - I was walking back to the refuge. And school was along the way, I stopped off at school, borrowed a friend’s phone to call the refuge to come and pick me up from school. And yeah, also I remember when I woke up in the morning, my vagina and my anus were really, really like were in extreme pain, like really aching and like yeah, sore.

16. Later in the interview she was asked about the person “Kevin” she referred to above:

Q95 Tell me about Kevin? A95 Um, Kevin, I think he’s Aboriginal, I’m thinking, he is dark skinned. I think I did over hear him one time talking. Yeah, he’s about sixty, I think, I’m not too sure, but that’s yeah. Yeah, I’ve not really talked to him like he is very quiet. Whenever I’ve seen him he’s been very, very drunk, yeah. Q96 Do you know Kevin’s last name? A96 (No audible reply) Q97 No? You say he’s Aboriginal or he’s dark skinned and would be about sixty? A97 Yep. Q98 Can you give me any sort of further description of him? A98 Dark hair, kind of curly and I think he’s got a beard, not a very long beard, but like yeah, um, tall, slender. Q99 When you say “tall” what do you mean? A99 Taller than me, I’m not sure how tall but - - - Q100 How much taller would he be than you, do you think? A100 About in between five and fifteen centimetres taller. Q101 Okay. And how tall are you? A101 I think I’m about one seventy-three centimetres. Q102 Okay. A102 I think, something around there. Q103 Yep. And you said he’s slender, a slender build. Is that right? A103 Yeah. Q104 Do you remember what Kevin was wearing? A104 Trackies, runners and I think a red T-shirt. Q105 Tell me about the trackies? A105 They had two stripes going down the side and they were like – I don’t know the word to describe it, you know, how trackies like they’re coming up the ankle, they don’t just like freely, like yeah. Q106 Okay. And what colour were they? A106 Black. Q107 And the stripes running down the sides? A107 I think they were either grey or white. Q108 And you said he was wearing a red T-shirt. Is that right? A108 (No audible reply) Q109 Tell me about the T-shirt? A109 Collared like T-shirt. Yeah, it was just plain red pretty much. Q110 Okay. It didn’t have any print on it or anything? A110 N’mm.

17. Later in the interview, the complainant returned to the account of the first incident:

Q150 Okay. And then you’ve said, it got to about eleven thirty, midnight and you’ve said you were going to go to sleep on the couch. Is that right? A150 Yep. Q151 Okay. And you’ve said the next thing you woke up and there were three men. Is that right? A151 Yep. Q152 Tell me everything you remember about that part? A152 Um, I opened my eyes, like just and I feel like shit and I just like, kind of like, look up, and I’m just like – I see [UP], Kevin and [KE]. Q153 And when you’re motioning with your hands, what do you mean, what are you going there? Where they were standing is that what you? A153 Yeah. Q154 Yeah. Do you think you’d be able to draw - - - A154 Where they where? Q155 On the couch yeah, when you woke up at that point, yeah. A155 My head and then Kevin was in the area, [UP] was over here and [KE] was like here. Q156 And the circles that you’ve drawn there for [KE] and Kevin, you’ve drawn them over the top of where you’ve indicated you were laying. What do you mean by that? A156 Um, they were touching me in those places, um, which is covered by the circles. Q157 Okay. A157 Yep. Q158 Okay. So you’ve woken up, you’ve got Kevin and [KE], you said that they were touching you in the areas covered by the circles. So tell me about touching? A158 Oh, do I have to again? Q159 I know it’s difficult we just need to try and get, for us, I’d like to get as much possible detail on everything that you remember. And so if you can run me through it. So just – you’ve woken up and you’ve seen [KE], [UP] and Kevin. And you’ve said that – you’ve indicate by the drawing, [KE] and Kevin were touching you. Just tell me everything about that part? A159 Well, um, [KE] was touching my breasts, sucking on them. Kevin was playing with my genitals using his mouth and fingers. Q160 And when you say... A160 Both anus and vagina, yeah, it was, yeah, and then I passed out again. Q161 So when you initially went to sleep what were you wearing? A161 Everything. Q162 Everything you described earlier? A162 Yep. Q163 And when you’ve woken up, the first time, to find [KE], Kevin and [UP] around you. What were you wearing then? A163 I couldn’t – oh, I was still wearing my bra and my T-shirt, no pants, no underwear, no boxers. Q164 Okay. So if I can take you to the part where you said that Kevin was touching and licking. Your vagina and anus is that what you said? A164 (No audible reply) Q165 Tell me everything you remember about that? A165 That’s pretty much what I remember about that. Q166 Okay. And you say he was touching and licking. Can you tell me – can you describe to me what was actually happening? A166 Yeah, he was fingering my anus and licking my vagina. Q167 Whereabouts on your vagina was he licking? A167 Near the clitoris and inside. Q168 Okay. And when you say “licking”, tell me more about that? A168 Sucking, licking. Q169 And you said that was around your – near the clitoris and also inside. And when you say, “inside”, what do you mean? A169 He stuck in his tongue and wiggled it around. Q170 Inside what though? A170 Inside my vagina. Q171 And when you say he was fingering your anus, tell me about that? A171 That was – that’s it, he was just fingering. Q172 How did you know he was doing that? A172 I could feel it. Q173 How did you - - - A173 I’ve been fingered before, not in the anus, but I know what fingering feels like, and if he was fingering my vagina, it would have felt different to my anus. Q174 How did you know it was his finger? A174 It was slim and he spread his two fingers apart, pretty much at one point, and I was like, nuh, it’s his fingers. Q175 Okay. A175 And that’s when I realised. Q176 So when you say he spread his fingers apart, how many fingers was he using? A176 Two Q177 Two. Okay. And at what point did he spread them apart? A177 I don’t know at random, random times. Q178 So you’ve woke up and Kevin was licking and sucking around your clitoris and also his tongue was going inside your vagina. Is that what you’ve said, just so I’m clear? A178 Yes. Q179 Yep. And at the same time his two fingers were inside your anus. Is that right? Okay. And how long did you think that lasted? A179 I don’t know. Q180 Don’t know? A180 My eyes were like open, I don’t know, it was a very short time and then, yep. Q181 Okay. And in terms of what you were feeling, can you tell me about that? A181 I was feeling very scared. I didn’t – like I was in shock pretty much. I couldn’t really like talk because my mouth was like really full of like saliva and stuff and I was like, yeah. Q182 Okay. And focusing on Kevin, did he say anything? A182 Not that I heard. Q183 Okay. And you said that [KE] was touching and kissing your breasts. Is that right? A183 (No audible reply) Q184 And you said earlier that your shirt and bra was still on at that stage. Is that right? A184 Yes. Q185 Okay. Tell me about what [KE] was doing? A185 Someone had lifted up my bra and my top, so it was revealing my breasts. [KE] was just like running his hands like over my belly up onto my breasts, sucking and licking wound my nipple and, yep. Q186 Do you remember which breast or – which breast he was doing that to? A186 Both. Q187 Both, okay. And you were laying on the couch, how were you positioned on the couch while this happening? A187 My hands were behind my head. One of my legs was up over the backside of the couch and the other one was touching the floor. Q188 Okay. So what part of your body were you laying on? A188 My back. Q189 You were on your back. And you had one leg over the back of the couch. Is that right? And the other one was down on – touching the floor. Okay. So it is fair to say your legs were slightly spread, yep? A189 Not slightly. Q190 They were quite spread? A190 (No audible reply) Q191 Okay. And you had both arms behind your head. Is that right? A191 (No audible reply) Q192 Okay. And where was [KE] in relation to you? A192 He was on my left side, um, right here. Q193 So if you were laying on your back and you let one of your legs was over the back of the couch, which leg was that? A193 That was my right. Q194 Okay. So what side was [KE] on you? A194 Left. Q195 On your left side, okay. And how was he positioned? A195 He was kind of leaning on me like holding like this arm down behind, he was leaning on this arm when it was behind my head, he was stretched over me running his hands down my tummy and up whilst sucking and licking on my breasts. Q196 Okay. And back to Kevin, where was he in relation to you on the couch? A196 He was down – he was pretty much right in-between my legs. Q197 What part of his body was between your legs? A197 His head. Q198 Okay. And where was the rest of his body. Do you remember? A198 Like he was kind of on the couch – he had one of his – like hands on my left leg keeping it on the ground whilst his other hand was like fingering my anus and licking my vagina and, yeah. Q199 And you said he inserted two of his fingers inside your anus. Is that right? A199 Yep. Q200 How deep inside your anus did his fingers go? A200 I don’t know, but it felt deep. Q201 So tell me why you thought it felt deep? A201 Because I could like feel it on the wall, like – I don’t know how to describe it but - - - Q202 All right. Just do the best you, mate. A202 It was like pushing up so it was like going against the wall of like the inside of my vagina. Q203 Okay, okay. And you say his two fingers, do you know which two fingers he was using? A203 (No audible reply) Q204 All right, okay. And you said the he’s inserted his tongue inside your vagina at one stage. Tell me about that? A204 It was very uncomfortable, I didn’t like it and he was flicking it in and out, up and down, sucking, yeah. Q205 Can you remember anything else that he was doing? A205 In what, like? Q206 When you said earlier that he was also licking around your clit, the clitoris, tell me about that? A206 Um, he was flicking his tongue, it felt like really quickly, that’s - - - Q207 And how was his tongue, like what motion was it moving in? A207 Like a snake’s tongue, like up and down. Q208 Okay. So what’s happened then? A208 I like passed out again, like yeah, like I don’t remember anything from there till the next time I woke up. Q209 Okay. So just – to take you back when you’ve first woken up and you found Kevin down around your vagina and [KE] running his hand up and down your stomach and touching and kissing and sucking your breasts. How did you know where [UP] was? A209 Because my head was like titled, so like my head was like that, so I could like just see Kevin and [KE] clearly and [UP] and like peripheral vision.

18. After a suspension of the interview, the complainant was questioned about what the appellant was wearing during this first incident, and she said that she could not recall. She said that the kitchen light was on, but it was “very dim” in the room where the incident occurred.

19. With regard to the second incident, no charges were laid as the complainant was unable to say who had been assaulting her. As the appellant has sought to rely on the complainant’s inability to identify the offender or offenders in the second incident, I will set out her evidence notwithstanding that no charges were laid. In her interview with police, and after the general description she gave as set out of [16] above, she said:

Q241 Okay, okay, no worries. So you passed out again and what happened then? A241 Either one, two, either Kevin is kissing my lips so I can’t talk and nuh, I can’t remember which one is which. Q242 Okay. So what was happening to you? A242 (No audible reply) Q243 If you don’t remember, that’s okay. So you’ve woken up and you said and you said someone is kissing you so you couldn’t talk. Is that right? A243 Yes. Q244 Okay. What else is happening to you? A244 Someone was down near my genitals again, yeah, um, just feeling around, um, yeah. Q245 And when you say feeling around what do you mean? A245 Like fingers just wandering from like my belly button like downwards just like, I guess you could say like caressing, like my thighs, my arse, um, my waist, all of that. Q246 And when you say caressing, you mean like fingers running over the top of your - - - A246 Yeah. Q247 - - - those areas you just mentioned. Is that right? A247 Mm. Q248 And when you say your “arse”, what do you mean there? A248 Um, grabbing and like it kind of felt like he was like massaging, I guess you could say. Q249 Okay. A249 But not. Q250 Okay. So the areas that while this person, you’re not sure who it was. Is that right? A250 I’m totally confused. Q251 That’s all right, take your time. A251 Um, I know that one time [KE] was kissing my lips but then I also – I remember it was either this time or like the next time that I woke up that Kevin was also, like they’d changed like spots. Q252 Okay. A252 So the other one was - - - Q253 So this second time you’ve woken up and someone was kissing you, so you couldn’t talk, you said earlier. Is that right? Yep. And someone was running their hands, caressing you and you felt like they were massaging you down your stomach and your waist and around your backside. Is that right? A253 (No audible reply) Q254 And you said earlier that they were touching, were they touching your vagina. Is that what your said earlier? A254 Well, yeah, they ran their fingers over. Q255 What parts of your vagina did their fingers run over? A255 The clitoris, the lips, yeah, that’s pretty much it. Q256 Okay. Did their fingers go inside you at all? A256 Not during that one I don’t think.

20. The complainant was also questioned by police concerning the third incident after her initial account as set out at [16] above:

Q257 Okay, okay. So what’s happened then? A257 I’ve like gone – like passed out again. Then the next time he’s pretty much the same but like their penis in my mouth. Q258 Okay. Tell me everything you remember about that? A258 Like they were kissing my mouth but then they – it was either the same person or someone else stuck in their penis, while someone else – I don’t know if it was their fingers or not, I couldn’t tell but something was in my vagina, um, going in and out. Q259 Okay. A259 Yeah, that’s - - - Q260 Okay. And you said that someone was kissing you. Tell me – describe the kiss for me? A260 There was biting of my lower lip, tongue, trying to get in. Then when my mouth like didn’t open, um, they got their fingers and like made it open, like forced my mouth open. Q261 Okay. How did they do that? A261 Held my forehead and like got their fingers like in between like my lips and like pulled down my forehead, lips and like forced open my mouth. Q262 Okay. Then what happened? A262 Then, um, that’s when they put the penis in. Q263 Tell me everything you remember about that? A263 It was like I was like choking and I couldn’t breathe and, yeah, and then I don’t really remember. Q264 Okay. What was their penis doing in your mouth? A264 Being thrusted into, I guess you could say. Q265 Okay. So when you say “thrusted into”, what do you mean by that? A265 The penis was being forced in and out of my mouth. Q266 Okay, okay. Was anything said – did anyone say anything to you? A266 If they did, I don’t remember. Q277 Okay. Did you say anything. A267 I couldn’t. Q268 Okay. A268 Like I remember no one had a hold of one of my legs and I arched my back and that was pretty much the only thing I could do. And then I think they – I don’t know, I think I heard, “Oi, Stop it cunt.” I’m not sure though. Um, yeah. Q269 Okay. Now in relation to the penis was being thrust into your mouth. Did you see that, like could you see the penis? A269 (No audible reply) Q270 No. Okay. And while the penis was being thrust into your mouth you also said that something was being inserted into your vagina. Is that right? A270 (No audible reply) Q271 Yep, okay. How far into your vagina was that they inserted whatever that – whether it was, whatever it may be? A271 Um, I don’t know, but it wasn’t like – it was – it was far but not far. Q272 What do you mean by that? A272 Like whatever it was it went in but I’m not sure like exactly how far. Q273 Okay. And this time when you’ve woken up how long – how long did this last? A273 In between like ten and twenty seconds. Q274 Okay. And then what happened? A274 I passed out again.

21. In a very brief cross-examination of the complainant, the appellant’s then counsel suggested to her that she could not say whether she has simply dreamed these events. The complainant rejected that proposition.

The complaint evidence

22. In examination in chief, the complainant said that when she saw her friends HG, DS and KQ at school on the morning of 18 May 2012, she said to them “Hey, guys. Something happened to me last night. I didn’t like it. Something happened at [KE]’s home whilst I was there.”

23. In her evidence, HG said:

All right. So you knew where she’d been. And you had a chat to her when – and what happened there? What did she say? --- She said that the night before, three men raped her. Okay. Did she say who those men were? --- Yes. And --- ? --- [KE]. Yes? --- KE and Kevin and Kevin’s nephew. And do you know Kevin by any other name? --- Rags. All right. So when you said that she told you that she’d been raped, if I can take you back a bit, did she give you any details of what happened before that? --- Just that they’d gone over to [KE]’s flat to have a bit of a drink, probably smoke some weed and just, like, chill out, basically. Okay, and – yes? --- And she told me – yes, she told me she was quite drunk and that she’d actually passed out. And when she passed out [DS] had had a fight with [KE] and had been asked to leave. And did she say anything else about what happened when she passed out? --- That she woke up with three men on top of her. And did she say anything else about them being on top of her? --- She said that they told her to, “Shut up bitch” and that she had tried to fight, but could not get them off her. And so as for what happened that morning when she arrived at school did she tell you what happened between then, and arriving at school? --- She just said that she’d basically gotten up and ran to school straight away. And when she arrived did you notice anything about her physical appearance? --- Yes. She was wearing no shoes. She has a tear in her shirt. Her jeans had no top button and the fly was broken, so they were gaping at the front and she just looked quite distraught, and was crying and yes.

24. KQ gave the following evidence about the complainant’s complaint to her on the morning of 18 May 2012:

Now, when [MX] approached you did you notice anything about her appearance? --- She looked distressed, a bit on edge. Not necessarily clean cut, maybe a bit dishevelled, I guess. ... Now, when you said that she looked upset how could you tell? --- [MX]’s generally a very bubbly person, very bright and energetic. She was none of those that specific morning. She was quiet and chose to be solitary, kind of, instead of talk to her friends. All right. And when you said she looked a bit dishevelled, how did she look dishevelled? --- Her – well, she showed me her pants were broken and --- Sorry, you’ve got a very soft voice. Can you speak up a bit? --- Sorry. And what was it that you say was broken? --- Her pants zipper was broken and --- It’s all right, take your time? --- she was wearing – her hair was a bit messy and she was wearing a bombers jacket which looked a bit, like, off to the side and wasn’t correctly put on. Like, if she had been dressed that morning correctly. Okay. Now you said that she went and spoke to [HG]? --- Yes. Your friend, [HG], and did [HG] say anything to you as a result of this conversation? --- She advised me that it was best that I should talk to [MX], that there was something wrong, and that – yes. So, did you talk to [MX]? --- Yes, and she told me what had happened. Now, just stopping you there, can you tell the court what [MX] said? Like, you’re [MX] and you’re telling it to me? --- She said to me, “I’ve been raped.” And I said, “When and where?” And she explained to me it was at the [redacted for legal reasons] and --- You said at someone’s flat. At --- ? --- [redacted for legal reasons], sorry. At[redacted for legal reasons] ? --- Yes. And I said, “When and by – when and who?” And she told me that it was that morning, early that morning. And she asked me if I knew who was man named [KE], and I had known of this man’s name because of our other friend [DS], has mentioned his name before. So, I knew him as [DS]’s friend or associate. And so she said that is was [KE] and you knew of this name of this person, [KE]. So you had not met [KE] before? --- I had not, no. And did she say anything else about what was? --- Yes, she also mentioned when explaining the incident that other --- Remember, just like you are telling it to me, like you are [MX]? --- Sorry. She said that his – sorry, than another man was involved – sorry Can I have one second? Certainly, take a moment, take a breather --- She said Kevin, the name Kevin, and his nephew were involved. I cannot specifically remember all the details of the incident that she told me, but those were the names mentioned.

25. DS gave evidence of her contact with the complainant on the morning of 18 May 2012:

And when did you next see [MX]? --- I next saw these are the next morning ... That morning I was outside – I was at the front of the school and [MX] found [HG] and I there between the hours of 9 and 9.30. And she was catatonic, she was very, very disconnected, looked like she had been crying, was shaking. Yes, I – we asked her – yes. So when you say she was catatonic, what was she like normally? --- Yes, normally she was a very friendly person. She – she was very careful not to display emotion, like, she was always very, very happy, even of something might have been a bit off. So she would never show any emotion if she did not have any choice but to, so – yes. All right, so you said that she looked distressed and so did you have a conversation with her? --- Yes, I did. So the first thing was we asked her how she was and she just basically went straight out with it and said that Rags, [KE], and she mentioned some – a third person, that she was not sure who he was but suspected to be Rags’ cousin, had raped her. And she did not actually specify that it was penis to vagina intercourse but she did imply it and that was definitely how we interpreted it. She explained that she was going in and out of consciousness throughout the incident and that – yes, that that was pretty much all she could remember from it, and that she was just – could not really communicate much more than that. Me and [HG] decided to start asking her some simple important questions like if she had had a shower so she could get a rape kit and then our friend [KQ] came into the conversation and we decided to take her to the refuge and the – one of the workers there, [K], took over it from there. But we explained what happened and [MX] became very emotional at that point, basically, just expelled all her emotions so – yes. And did you notice anything about her physical appearance? ---She was wearing the same clothes as she was the night before except I cannot remember exactly what it was. But I definitely noticed that at the time.

26. At Canberra Hospital on 18 May 2012, the complainant was seen and examined by Dr Catherine Sansum, a medical practitioner employed by the ACT Clinical Forensic Medical Services. The examination occurred between 11.35 am and 1 pm. Dr Sansum gave evidence by reference to notes taken on 18 May 2012. These notes were prepared by nurse, Cathy Billing, as Dr Sansum asked questions of the complainant. Dr Sansum later reviewed the notes to confirm their accuracy. In questioning the complainant, Dr Sansum used a pro forma document called a Medical Evidence Record. This document allowed the person completing it to ask questions of the complainant about possible aspects of the alleged assault and to circle a printed response on the form depending on the answers from the complainant. For example, the document provides four answers which may be circled, depending on the response by the complainant, being “No”, “Yes”, “Attempted” and “Unsure”. By reference to the Medical Evidence Record, Dr Sansum said that the complainant told her that she remembered being held or grabbed by KE and the appellant, and that KE and the appellant had been “lying on” her. The complainant said that her vagina and anus had possibly been penetrated by the appellant, but was unsure regarding the exact nature of the penetration. Dr Sansum said that the complainant told her that there had been oral contact by KE to her vagina, anus, mouth and breasts, and oral contact by the appellant to her vagina.

27. Dr Sansum performed a physical examination of the complainant and identified three 2 to 3 millimetre superficial linear abrasions, or scratches, in the area where the complaint’s labia majora meet the base of the vagina. She said that these abrasions were caused by “a combination of blunt force and friction.” Because of their location, these abrasions were unlikely to have been caused by everyday activity on the part of the complainant. Other evidence

28. Expert evidence concerning forensic testing of samples taken from the complainant and other items, such as KE’s underwear, was given by Majca Keglovic, a forensic biologist employed by the AFP. She gave evidence of locating DNA consistent with that of the complainant on tape lifts taken from the inner surface of KE’s underwear. I will refer to this evidence in slightly greater detail below.

29. KE gave evidence that he, the appellant and UP were at his flat on the evening of the 17 May 2012 when the complainant and DS attended around 9.30 pm to 10 pm. He said that a couple of other people, who he identified as “Luke and Rodney Elg(?)” were also present playing video games and drinking. He said that Luke and Rodney left at about 10.30 pm. DS went to sleep on the bed in KE’s bedroom, leaving the appellant, KE and UP with the complainant in the lounge room. He said the complainant laid down on a couch because she was not feeling well, and that he, KE, fell asleep on another couch in the lounge room. He was woken by DS speaking loudly on the telephone. He and DS then had an argument, and DS phoned her boyfriend who came to pick her up. This was about 5.30 am. He next awoke when the complainant was leaving the flat. She told him that she was going out to buy cigarettes, which she referred to as “bumpers”. He denied engaging in any sexual activity with the complainant, nor did he see the appellant or UP do so.

The appellant’s submissions

30. The appellant submitted that the complainant was an unreliable witness on account of her intoxication and her limited opportunity to identify the appellant as one of the perpetrators. He further submitted that there were inconsistencies in the complaint evidence, and in particular, that in her interview with police the complainant said that it was only the appellant who had performed cunnilingus on her, and that she had told Dr Sansum that both the appellant and KE had engaged in that conduct. The appellant also pointed to evidence that persons other than the appellant, KE and UP had been present at the flat from time to time on the night of 17 May 2012, and that DNA from a male who was not the appellant (or KE) was located on each of the complainant’s breasts, and in the underpants of KE.

The respondent’s submissions

31. The respondent accepted that the complainant was intoxicated on the night of the 17 May 2012, resulting in her lapsing in and out of consciousness. It submitted, however, that intoxication of itself does not mean that her account cannot be relied upon. It submitted that there was significant corroboration of her assertion that she had been sexually assaulted.

32. With respect to the inconsistencies in the complainant’s recitation of the events in question, the respondent submitted that it was clear from the complainant’s interview with the police that she could not nominate who was engaging in all of the activity she was subject to over the entirety of these incidents. She was, however, quite clear in her description of the conduct making up Count 3. The respondent also suggested that there was potential for the notes of the history given by the complainant to Ms Billings at the Canberra Hospital to be erroneous or misleading. It pointed to the fact that a number of the questions in the document completed by Ms Billings appear to have internally inconsistent answers recorded.

33. The respondent submitted that the appellant’s submissions revealed a misunderstanding of the import of the DNA evidence, and the inferences that can be drawn from that evidence. With respect to sample 19-1, a tape lift from the inside front of KE’s underpants, the DNA analysis showed that apparent saliva was detected and a mixed a DNA profile from a minimum of two individuals was obtained. The complainant and KE were not excluded as contributors to this mixed DNA profile. The profile obtained was approximately 170 billion times more likely if KE and the complainant contributed to the DNA profile than if it had originated from KE and an unknown, unrelated individual selected at random from the Australian Caucasian subpopulation. The evidence in relation to sample 19-2, a tape lift taken from the inside front and back of KE’s underpants, showed that apparent saliva was detected and a mixed a DNA profile from a minimum of three individuals was obtained. The DNA profile was separated into a major, major and trace DNA component. KE and the complainant were not excluded as contributors to the major, major component of the sample. There was insufficient information in the trace component to determine the source. The profile obtained was approximately 140 billion times more likely if KE and the complainant contributed to the major, major component obtained than if it originated from KE and an unknown, unrelated individual chosen at random from the Australian Caucasian subpopulation. The respondent submitted that the DNA evidence did not, in fact, exclude the possibility that the appellant was the source of the trace DNA found on sample 19-2. In relation to various swabs taken from the complainant’s vagina, anus and genital area, the evidence was that because of the sites from where these samples were taken there was potential for the complainant’s DNA to overwhelm any other material at a very low level. The respondent further submitted that the appellant’s submission that a DNA from a male who was not the appellant, or KE, was located on the complainant’s breasts is only partially correct, because this result related to a swab from the right breast only.

Consideration

34. A fair assessment of the evidence led by the Crown at the appellant’s trial is that the conviction of the appellant was not inevitable. There was ample evidence to support the conclusion that the complainant was assaulted as she alleged. There was, in addition to the evidence of the complainant herself, evidence of immediate complaint and medical evidence of injury consistent with her complaint. The discovery of the complainant’s DNA on the inner surface of the underwear of KE also supports the conclusion that the complainant was sexually assaulted as she alleged. There were, however, weaknesses in the Crown case identifying the appellant as one of the assailants. The complainant had limited opportunity, in poor lighting conditions, to identify the appellant as one of the assailants. There was no DNA evidence linking the appellant to the offences, and the complainant was heavily intoxicated at the time of the offences. On the other side of the ledger, however, there was evidence that the appellant was present at KE’s flat on the night the offences occurred, and the complainant had previously met the appellant and clearly identified him as engaging in cunnilingus. The fact that the complainant had previously met the appellant does not remove the well recognised dangers of identification evidence completely, but this was not a case of identification of a previously unknown person. In my opinion, the DNA evidence was neutral concerning whether the appellant had committed the offences with which he was charged. It was not evidence that he committed the offences, but neither was it inconsistent with him having done so. Conclusion

35. The fact that conviction was not inevitable does not mean that the conviction was unsafe or unsatisfactory. It would be understandable if the jury entertained a reasonable doubt about the guilt of the appellant, but this was not a case where a reasonable jury must have held a reasonable doubt. In my opinion the remaining ground of appeal should be dismissed, and the appellant should be retried in accordance with the decision of this Court on 21 August 2014.

I certify that the preceding thirty-five [35] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns.

Associate:

Date: 13 May 2016

WIGNEY J:

1. I have read the reasons to be published by Burns J. I agree that the remaining grounds of appeal (the “unsafe and unsatisfactory” ground) should be dismissed and that a new trial should be ordered. I also agree with his Honour’s reasons. I wish only to add a brief additional observation about one aspect of the appellant’s submissions in support of his appeal.

2. The appellant’s main submission in support of his contention that the conviction was unsafe and unsatisfactory was that the complainant’s identification evidence was unreliable.

3. The complainant’s evidence in chief, which was mainly in the form of the record of her interview by the police, is extracted at length in the reasons of Burns J. Her evidence identifying the appellant as the person who performed cunnilingus on her on the night in question is to be found primarily at answers 159, 164 – 170, 178 and 196 – 198. Those answers must be considered in the context of the complainant’s evidence that she had met the appellant on previous occasions and referred to him as “Kevin”.

4. The appellant submitted that the complainant’s identification evidence was unreliable because, aside from nominating him as the person who performed cunnilingus on her, the complainant did not say that she was able to observe the facial features, or hair, or clothing of the person who was performing that act. The appellant also pointed to similarities in the descriptions the appellant gave in her evidence of the appellant and the appellant’s nephew, who was also present in the apartment on the evening in question. He contended that the complainant’s evidence was incapable of excluding the reasonable possibility that his nephew, or someone else, was responsible for the act attributed to him by the complainant.

5. Those submissions must be considered in the context that the appellant’s counsel at trial did not ask the complainant a single question in cross-examination concerning her evidence nominating or identifying the appellant as the person who performed cunnilingus on her. It was not suggested to the complainant in cross-examination that she did not have the opportunity to, or could not, see the facial features or hair of the person performing the act. It was not suggested to her that, given the apparent similarity in appearance of the appellant and his nephew (if indeed that was the case), she could not be sure that it was the appellant who was performing the act. In effect, the only question put to the complainant in cross-examination, beyond having her agree that she gave various answers during the police interview, was that she could not say whether or not the incident that she had described was not a dream. The complainant maintained that it was not a dream.

6. The fact that the appellant, through his counsel, did not challenge or test the complainant’s identification evidence at trial does not mean that the appeal court is relieved of the burden of examining the evidence. Identification evidence may still be sufficiently unreliable, inadequate or tainted to lead an appeal court to conclude that it was not open to the jury to convict, even if the evidence was not challenged or tested at trial. This, however, is not such a case. The identification evidence, unchallenged and untested as it was, was capable of supporting a conviction.

7. As Burns J has pointed out, there were undoubtedly weaknesses in the complainant’s identification evidence given her state of intoxication, the fact that she slid in and out of consciousness during the events on the night in question and the general difficulty she must have had identifying who did what during the somewhat chaotic events. Those weaknesses are not, however, sufficient to support a finding that it was not open to the jury to convict the appellant, or that a jury must, as distinct from might, have entertained a doubt about the appellant’s guilt. The other matters relied on by the appellant, including the DNA evidence, supposed inconsistencies in the complainant’s evidence and the evidence of what the complainant told the doctor at the hospital, also do not support such a finding for the reasons given by Burns J.

8. Having considered the entire trial record, I am not satisfied that it was not open to the jury to convict the appellant, or that a jury must have entertained a reasonable doubt about the appellant’s guilt. The appellant’s appeal must be dismissed.

I certify that the preceding eight [8] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Wigney.

Associate:

Date: 13 May 2016