R. v. AULIFF [2001] NSWCCA 393

IN THE COURT OF CRIMINAL APPEAL CCA 60784/00 POWELL JA SULLY J BELL J

Judgment 1 POWELL JA: The Appellant appeals from a conviction by a jury following a trial on indictment before Shillington DCJ. 2 In the indictment the Appellant was charged with three offences, they being: 1. that on or about 30 December 1998 at Sydney he did unlawfully cause to be taken by the complainant a stupefying drug, namely flunitrazepam, with intent to commit an indictable offence, namely, to have sexual intercourse without the consent of the complainant, knowing that she was not consenting. 2. that on 30 December, 1998, at Sydney, he did assault the complainant and that he, at the time of such assault, did commit an act of indecency on the complainant; and 3. that on 30 December, 1998, at Sydney, he did have sexual intercourse with the complainant without the consent of the complainant, knowing that she was not consenting. 3 At the conclusion of the trial the jury found the Appellant guilty of the offence charged in the first count, were unable to agree on the proper disposition of the offence charged in the second count, and found the accused not guilty of the offence charged in the third count of the indictment. The jury was then discharged without verdict on the second count and then the trial judge proceeded to sentence the Appellant in respect of the offence found proved. 4 Two grounds of appeal have been taken by the Appellant for the purpose of this appeal, they being: (1) that in all the circumstances, the verdict of the jury on count 1 of the indictment was unreasonable or unsatisfactory or unsafe, in that the verdicts on counts 1 and 3 of the indictment were inconsistent. (2) that in all the circumstances there has been a fundamental failure of procedure going to the root of the trial, by reason of the failure of the trial judge to make a formal order pursuant to s.54(b) of the Jury Act 1977 before permitting the jury to separate after inviting them to consider their verdicts. 5 The facts insofar as they were sought to be proved at the trial were that the complainant, who was a tourist and who had met the Appellant about a week prior to the offences said to have been committed, on 29 December 1998 went to a cinema in Darling Harbour with the Appellant, after which she and the Appellant went to a restaurant in Kings Cross for dinner. 6 The complainant had a glass of water with her meal and then went to the toilet twice at the restaurant, once during the meal and the second time when they moved to the bar area where she ordered a cup of tea. After her second trip to the toilet the complainant began to feel very weak and was unable to walk normally. Her evidence was that she told the Appellant she was feeling tired and asked him to take her to the place were she was then lodging. 7 The complainant's evidence was that she recalled that, after they entered the Appellant's car, she felt the Appellant stroking the inside of her thighs, but that she recalled nothing thereafter until 1.00 p.m. on the following day, when she awoke in her bed at her lodgings. When she awoke, so she said, the complainant felt weak and dizzy and noticed that her panty-liner was missing; she also noticed that her jewellery had been taken off, her contact lenses had been taken out and she was wearing a T-shirt. 8 There was evidence from the owner of the lodgings where the complainant was then staying, that in the early hours of the morning of 30 December 1998, having heard a noise she went to the room which was occupied by the complainant where she found the complainant slumped limply across her bed, with her clothing in a state of disarray: having done so she helped to remove the complainant's clothing, then put her to bed. 9 On the following day, 31 December 1998, the complainant telephoned a friend who, having advised her to see a doctor, later took the complainant to see a doctor who then referred them to a hospital where certain tests were carried out. 10 The complainant and her friend then went to the Kings Cross Police Station where they spoke to Sen.Cst. Clark, who drove them to the Royal North Shore Hospital where the complainant was examined by a Dr. Humphrey the career medical officer then on call for that hospital's Sexual Assault Unit. Dr. Humphrey then examined the complainant, who also made available to him her underpants and provided to him samples of her blood and urine. 11 When later examined, the complainant's underpants were found to be stained with semen, which, when later subjected to DNA testing following the provision by the Appellant of a blood sample, was found to be the Appellants. 12 When analysed, the urine sample provided by the complainant was found to contain traces of 7-Aminoflunctrazepam - a breakdown product of flunitrazepam (Rohypnol) - of oxazepam (Serepax) and of temazepam (Normison), each of those drugs being one of the benzodiazepine group of drugs, which group of drugs I understand to contain drugs commonly called tranquillisers, sedatives and hypnotics. Each of oxazepam and temazepam is on Schedule 4 of the Poisons List proclaimed under the Poisons and Therapeutic Goods Act 1966, while flunitrazepam is on Schedule 8 of that List. A doctor's prescription is needed to obtain each drug from a pharmacist. 13 On 3 January 1999 the Appellant was arrested and taken to Dee Why Police Station, where he was interviewed by Sen. Cst. Clark and Det. Barclay of Kings Cross Detectives, that interview not being electronically recorded as the Appellant declined to submit to an ERISP. According to Sen. Cst. Clark, the Appellant, during the course of that interview, said that, after he and the complainant had left the restaurant at Kings Cross, at the complainant's request he drove to Clovelly, where sexual activity, involving digital penetration but not intercourse in the conventional sense, took place. 14 Later, in March 1999, the Appellant's premises were searched pursuant to a search warrant. In the course of that search, the police officers took possession of (inter alia) a red dispensing vial containing a white emulsion, which emulsion, when later analysed, was found to contain flunitrazepam. 15 In due time the Appellant was indicted and brought to trial in October 2000. At trial, the appellant, while admitting that while he and the complainant were at Clovelly, sexual activity - but not extending to digital penetration - took place denied having committed any of the offences with which he stood charged. 16 The second ground of appeal which has been raised by the Appellant relates to what occurred on the second last day of the trial, after the learned trial judge had summed up to the jury. The relevant part of the transcript record is as follows: "JURY RETIRED TO CONSIDER ITS VERDICT AT 3.08 PM. HIS HONOUR: Mr. Stratton, I will continue your client's bail; he must remain within the building. SHORT ADJOURNMENT JURY RETURNED TO COURT AT 4.03 PM HIS HONOUR: Thank you, ladies and gentlemen. I have your note in which you seek to break off now and continue tomorrow. Now there is not (sic) problem about that. HIS HONOUR CAUTIONED THE JURY NOT TO DISCUSS THE TRIAL OUTSIDE JURY ROOM I will not be asking you to come back to court tomorrow morning. What I want you to do, if you would, is to go directly to the jury room and simply continue with your deliberations and the exhibits will be available out there. If you want to start a little earlier than 10 o'clock, that is a matter for you. Mr. Foreman, is there a consensus among you that you should perhaps start at 9.30 rather than 10 o'clock? In that case I will ask you all to be at the jury room at 9.30 in the morning to then continue. If you would now leave, thank you." 17 The first ground of appeal taken on behalf of the Appellant seeks to persuade the Court that the verdict by the jury in relation to the third count was logically inconsistent with the verdict of the jury on the first count. 18 In this regard it should perhaps be noted, first, that the complainant was able to give no evidence whatsoever as to what was alleged to have occurred between herself and the accused shortly after they entered the Appellant's car, and that the only evidence that was available to support that count was the conversation said to have taken place at the Dee Why police station when the accused was interviewed by the police officers. 19 Not surprisingly, in relation to that count the learned trial judge, on two occasions, gave a very strong McKinney direction, which direction, in my view, was thoroughly justified in the circumstances. That being so, it is hardly surprising that the jury was not prepared to find the Appellant guilty of the third offence with which he was charged. 20 But the fact that the jury was not prepared to find the accused guilty of that offence is, in my view, in no way inconsistent with the verdict of the jury on the first count. 21 The evidence which was before the jury included evidence to the effect that, on a number of occasions prior to 29 December 1998, the Appellant had made amorous advances to the complainant, which advances had been repelled. 22 Further, there was the evidence of the results of the DNA tests, and of the analyses of the sample of the complainant's urine which had been carried out; the evidence that the drugs, of which traces were found in the complainant's urine, could be obtained from a pharmacist only upon prescription; the evidence that the Appellant had in his possession, and was accustomed to use, flunitrazepam; and the Appellant's own evidence that, at a time when, so other evidence would seem to suggest, the complainant was in a comatose state, some form of sexual activity took place. 23 His evidence if accepted by the jury - as it seems to have been - would, in my view, justify the jury in finding that, even though they were not satisfied to the required standard, that the Appellant in fact put his intention into the effect, he was guilty of the offence charged in the first count. 24 As I am not able to see any logical inconsistency between the jury verdicts on the first and third counts (R. v. Markulevski [2001] NSWCCA 290), I would reject the first ground of appeal. 25 So far as the second ground of appeal is concerned, it seems to me that there are two answers to it. 26 The first is that, although it is true that there was no formal order made by the learned trial judge that the jury be at liberty to separate prior to returning a verdict, it is abundantly clear from the passage in the transcript record which I have set out above, that the jury sought the authority of the judge to leave and that the judge, having formed the view that it was proper that they be at liberty to do so, and having given the conventional warning about not discussing the matter with anybody during the course of the adjournment, then formally authorised them to leave and directed them to return on the following morning (see R. v. Radju [2001] NSWCCA 103; R. v. Phan [2001] NSWCCA 29). 27 But even if that is not, in substance, such an order as is required by s.54(b) of the Jury Act, it seems to me that there has been no substantial miscarriage of justice and, therefore, this Court is not called upon to intervene. 28 I would propose that the appeal be dismissed. 29 SULLY J: I entirely agree. 30 BELL J: I also agree. 31 POWELL JA: That is the order of the court.

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