R v Fardon [2010] QCA 317

SUPREME COURT OF QUEENSLAND

CITATION: R v Fardon [2010] QCA 317

PARTIES: R v FARDON, Robert John (appellant)

FILE NO/S: CA No 137 of 2010 / DC No 148 of 2009

DIVISION: Court of Appeal

PROCEEDING: Appeal against Conviction & Sentence

ORIGINATING COURT: District Court at Southport

DELIVERED ON: 12 November 2010

DELIVERED AT: Brisbane

HEARING DATE: 4 November 2010

JUDGES: Muir and Chesterman JJA and McMeekin J / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS: 1. The appeal be allowed. / 2. The conviction be set aside. / 3. A verdict of acquittal be entered.

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE – CONTROL OF PROCEEDINGS – OTHER MATTERS – primary judge refused appellant’s pre-trial application for a no jury order pursuant to s 590AA(2)(da) Criminal Code 1899 (Qld) – appellant submitted adverse pre-trial publicity may affect jury deliberations – whether primary judge erred in refusing to make a no jury order / CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – appellant convicted of rape after a trial – complainant gave evidence of non-consensual anal penetration – appellant submitted that the jury could not have been satisfied of his guilt beyond reasonable doubt based on the evidence of the complainant – whether verdict unsafe or unsatisfactory / Criminal Code 1899 (Qld), s 590AA(2)(da), s 614, s 615, s 668E(1) / Penalties and Sentences Act 1992 (Qld), s 161B / Arthurs v The State of Western Australia [2007] WASC 182, cited / Hin**ch v Attorney-General (Vic) 164 CLR 15; [1987] HCA 56, cited / Jago v District Court (NSW) (1989) 168 CLR 23; [1989] HCA 46, cited / Kingswell v The Queen (1985) 159 CLR 264; [1985] HCA 72, cited / MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, applied / *R v Ferguson; ex parte A-G (*Qld) (2008) 186 A Crim R 483; [2008] QCA 227, considered / R v Smith [1995] 1 VR 10; (1994) 73 A Crim R 384, cited / The Queen v Glennon (1992) 173 CLR 592; [1992] HCA 16, cited / The State of Western Australia v Martinez (2006) 159 A Crim R 380; [2006] WASC 25, cited / TVM v The State of Western Australia (2007) 180 A Crim R 183; [2007] WASC 299, cited

COUNSEL: D O'Gorman SC, with M Nolan, for the appellant / M B Lehane for the respondent

SOLICITORS: The Advocacy & Support Centre for the appellant / Director of Public Prosecutions (Queensland) for the respondent

[1] MUIR JA: Introduction

The appellant was convicted of rape after a two day trial and on 14 May 2010, was sentenced to 10 years' imprisonment. It was declared, pursuant to s 161B of the Penalties and Sentences Act 1992 (Qld), that he had been convicted of a serious violent offence. He appeals against his conviction and sentence.

[2] There are two grounds for the appeal against conviction. The first is that the judge who heard an application by the appellant under s 590AA(2)(da) of the Criminal Code 1899 (Qld) that he be tried by a judge sitting without a jury, erred in not making the order. Section 614(1) of the Code refers to such an order as a "no jury order" and I will adopt that terminology. The second ground is that the verdict was unsafe and unsatisfactory in the sense that it was "unreasonable, or can not be supported having regard to the evidence".¹

[3] Before considering the grounds of appeal, it is desirable to summarise the evidence before the jury and the background relevant to the sentencing of the appellant. The rape offence was particularised by the prosecution as an act of anal penetration with the penis or another body part. The appellant was sentenced on the basis that the anal penetration was digital.

The complainant's record of interview

[4] In an interview with a police officer on 3 April 2008, the complainant gave evidence to the following effect. She was born on 12 January 1947 and was in a sexual relationship with the appellant at the time of the alleged rape. They had known each other since she was 13 and they had been "sort of teenage lovers". On the morning of 2 April 2008 the appellant came to the complainant's unit at Palm Beach and took her for a drive to Brisbane. Shortly after their return to the complainant's unit, they had sexual intercourse before going to the Surf Life Saving Club at Tallebudgera at about 3.30pm. They returned to the complainant's unit at around 6.00pm and the appellant then departed for Brisbane.

[5] The complainant, who had been drinking heavily, was a willing participant in sexual intercourse which continued "for quite some time". The complainant told the appellant that she had "enjoyed it because [she] did but [she] didn't realise that, that he done what he did to [her] up the backside".

[6] The appellant knew that the complainant "hated it that way" [i.e. anal intercourse] and had said to her that he would never do it again. This exchange occurred:

"MS:Well, (i/u) I didn't realise...

SS:Yep.

MS:You know that there was anything wrong.

SS:So um, so he's having intercourse with you up his [sic] bottom...

MS:Yeah.

SS:Uh up your bottom...

MS:Yeah but I don't know (i/u)...

SS:And they said that you were screaming?

MS:I was screaming yeah the neighbours heard me. The neighbours heard screaming.

SS:And what were you saying when you were screaming?

MS:Oh I just kept saying don't hurt me, please don't hurt me, please don't hurt me.

...

MS:You're hurting me.

...

MS:That's what I said.

SS:...'You're hurting me' what did you mean?

MS:Because it hurt when he was pushing it up me backside.

...

MS:Um, I told him to stop and he did and that was it.

SS:So he stopped when you told him to stop?

MS:Yeah, yeah. But I didn't realise that neighbours complained about me screaming."

[7] The complainant found a tube of KY gel on her dressing table the morning after the incident. She thought that the appellant may have used it, but didn't know, "It happened so quick".

[8] The interviewing officer later covered the same ground. She returned to what had happened at the surf club and to the alleged anal penetration. She reminded the complainant of her saying that she was screaming, "don't hurt me, don't hurt me" and asked:

"SS:... then what's happened?

MS:Well I don't know he just said to me that he wasn't hurting me when he was ... I just kept screaming and screaming ...

…

MS:Because it was hurting me that's why."

[9] The complainant said that she had told the appellant many times that, "I don't like it that way." Asked to tell the officer "about that" she said:

"Well uh, once before he tried it once before it's twice it's happened

...

And I said no I don't like it that way. Yeah so."

[10] The questioning continued:

"SS:You, you said its happened to you twice before?

MS:Yeah.

SS:Okay um, we'll talk about that in a minute. So you told him many times you don't like it that way?

MS:Yeah.

SS:Yep um, so after you were screaming and you told him to stop what's happened then?

MS:He stopped.

SS:Okay.

MS:Yeah. The neighbours could hear me all round you know that's what I was worried about and see he, I fear that he's going to blame me because I didn't really want to go to the doctor's but um, I couldn't sit down I couldn't do anything you know and that and it was just so painful for me.

…

MS:That Police lady told me ….

SS:Yep.

MS:That there was complaints from the neighbours."

[11] The complainant later said she was "paralytic drunk" at the time of the incident. She explained that she meant she wasn't herself, she "was sort of drunk".

[12] After the incident the complainant and the appellant went to the surf club. The interviewer asked some questions about that and about the appellant's clothes and car. She then brought the conversation back to a past incident of anal penetration (wrongly assuming, as she had done earlier, that there had been more than one such prior incident).

"SS:Okay. You told me that you told Robert many times that you don't like it that way ….

MS:Yeah.

SS:Um, because it happened twice before.

MS:Yeah.

SS:What can you tell me about that?

MS:Well he has tried it this will be the second time (i/u) I've been before to Doctor GRIFFITH."

[13] The complainant said that the appellant had "tried it twice to me [i.e. anal intercourse] ... Up the back passage (i/u) that hurts".

[14] The other anal penetration was said to have occurred in the complainant's bedroom on an unspecified date. The complainant said that she "screamed then too that time". The transcript records:

"SS:And tell me about that?

MS:Well it, I told him that um, he can touch up the front only and (i/u) and been doing it that way when, unacknowledged to me.

SS:Mmm Hmmm

MS:You know I never even knew that he did it that way until I realised until I seen the sheets this morning.

SS:(i/u) I told him he could touch me ….

MS:Yeah.

SS:Up the front only ….

MS:Yeah up the front only."

[15] And a little later in respect of the earlier incident:

"SS:Yep but this day you told him that you didn't want to have sex anymore like that ….

MS:Yeah.

SS:Do you remember back to that day?

MS:No I don't.

SS:No?

MS:I can't yeah.

SS:But do you remember when you were having sex with him? Or making love with him?

MS:Um, no I don't."

[16] The complainant re-affirmed that on the earlier occasion on which she had been penetrated anally she had screamed and told the appellant to stop.

[17] The interviewer said, "Okay and you told him you didn't like that", to which the complainant responded, "No I told him I didn't like it when he knows I don't like it that way". The interviewer then asked, "Did you give him consent to do that?", to which the complainant responded, "No I've never give him consent. I've never like (sic) it that way and I never will".

[18] It is difficult to distinguish in this part of the transcript whether the complainant was speaking entirely of the past or partly discussing the subject incident. It would seem most likely that most of the discussion concerned only the earlier incident. The complainant did say however that, "Twice it has happened the neighbours have put complaints against me". That is plainly a reference which includes the subject incident. She also voiced concern about "being kicked out of the unit for screaming".

[19] Towards the end of the interview, the complainant expressed concern that the appellant may not want to have any more to do with her. The interviewer re-visited the question of consent in respect of the subject incident and this exchange occurred:

"MS:Up the front well I just told him that he could, he could have sex with me that way but not the back way.

SS:Okay.

MS:But I didn't realise because I didn't know what that ….

SS:Where ….

MS:What the gel meant, I seen that this morning and ….

SS:Okay when did you tell him?

MS:Yeah.

SS:That he could have sex with you up the front way but not up the back?

MS:I told him that yesterday, yeah.

SS:Okay yesterday.

MS:Yeah.

SS:Before or after?

MS:Before, before it happened.

SS:Okay.

MS:Yeah before that happened yeah. But he's told me he wouldn't touch me that way again."

[20] The complainant said that "you don't use that, that KY gel for nothing" and explained that it was a substance used in anal intercourse. She said when she discovered it she showed it to a female friend with whom she had spent the night and that prior to this she did not know what KY gel was.

The complainant's cross-examination

[21] Cross-examined on closed-circuit television by counsel for the appellant, the complainant gave the following evidence. The complainant and the appellant were about the same age. They had been friendly since they were teenagers. She started seeing the appellant again possibly about two years before the incident. Asked how she knew that the appellant injured her, she responded:

"How do I know? I don't know, but for him to have done, he must have did something. What caused the bleeding and that? ... but there must have been something, because it was blood – there was blood, poo and hair on the sheets, the blankets and that ..."

[22] Asked what happened after she and the appellant had sex, she responded, "Well, I didn't realise that he'd hurt me like he did". She said that after their sexual encounter they left the bedroom and went to the surf club. She said, non-responsively in answer to a question, that a girlfriend came around to see her that night and she was sore but didn't realise that she'd been hurt by the appellant.

Other evidence

[23] Dr Griffiths, a medical practitioner, gave evidence of having examined the complainant on 3 April 2008. He said, of the complainant's anal area:

"... There was an area of inflammation and a superficial tear or excoriation down the natal cleft, which is the part between the buttocks, which possibly was a chronic problem. It may not have been acute, but it had a little bit of blood in it I believe and may have been re-injured, and more pertinent was the fact there were two small fissures there - little tears in the anus."

[24] He said that the complainant had told him that she had emptied her bowels that morning. He observed that "emptying the bowels may have actually partially re-opened the fissures". His evidence was that the damage he saw was consistent with something having been inserted in the anus. The condition of the natal cleft area was thought to be unrelated to the incident.

[25] Another medical practitioner, Dr Lincoln, examined the complainant on 3 April 2008. She noticed some bruising and swelling at the back of the anal opening. An internal examination revealed some localised red bruising of the lining of the rectum. The marks were consistent with the insertion of a penis or forefinger. She did not see any "other significant injuries like tearing or deep splits to the anal opening". Dr Lincoln did not observe any fissures.

[26] Mr Alford, an employee of the surf club who knew the complainant, saw the appellant pass her a drink in the main bar of the surf club at about 3.30pm on 2 April 2008. He noticed "love bites" on her neck and observed that the complainant, with whom he conversed, appeared her normal self and seemed unaffected by alcohol.

[27] Ms Charabaroc, a neighbour of the complainant, gave evidence of hearing the complainant "crying and screaming" in her unit after lunch on 2 April 2008. She heard her say "Don't do that". She saw the appellant and the complainant leave the unit at about 3pm and return later with a friend of the appellant's named Mark. Either after the appellant left with Mark or early on the morning of 3 April, the complainant had told her that the appellant "... had a cream and he put his hand in her bottom and penis in her bottom ... she had blood on her sheets. She was bleeding".

[28] She said that the complainant was "very upset about it". In cross-examination, Ms Charabaroc accepted that in the conversation she had with the complainant, she also mentioned the state of the bed linen. She accepted that after hearing the words "Don't do that" she heard no further noise coming from the unit.

Admissions by the defence

[29] It was admitted by the defence that the purple bottom sheet taken from the complainant's bed had on it an area of red/brown staining which tested positive for the possible presence of blood and a partial DNA profile which matched that of the complainant. The following admissions were made in respect of the floral top sheet from the complainant's bed:

"a.Numerous yellow/brown stains were observed on both sides of the sheet. These all tested negative for the possible presence of blood.

Six red/brown stains were observed on one side (side A) and another red/brown stain was located on the other side (side B). These all tested negative for the possible presence of blood.

Three of the stains on side A were sampled. In respect of one of those a mixed DNA profile was obtained which indicated the presence of DNA from two contributors, the complainant and the accused.

Two areas near the centre of side A tested positive for the possible presence of seminal fluid. The DNA profile of these matched the accused."

The failure to make a no jury order on the pre-trial application under s****590AA(2)(da)

The appellant's submissions

[30] The application by the appellant for a no jury order was based primarily on the contention that pre-trial publicity may affect the deliberations of the jury. It was submitted to the primary judge that there had been years of sustained and negative publicity concerning the appellant. He was the first person dealt with under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) and had been the subject of a number of decisions of the Supreme Court of Queensland, the Queensland Court of Appeal and the High Court. The primary judge was taken to various publications and transcripts from media reports referring to the appellant in terms such as: "rapist", "serial rapist", "serial child rapist", "sex fiend", "sex predator", "infamous sex offender" and "the State's most wanted sexual predator".

[31] He was the first person in Queensland held in prison after completing the full term of his sentence. Upon release from prison, he was driven from the housing allocated to him as a result of the actions of local residents, and between 13 July 2007 and 8 May 2008 he was the subject of some 181 news items.

[32] Reference was made to the primary judge's reasons in which her Honour said:

(a)The appellant "... has been routinely portrayed in negative and derogatory terms and labels applied to him tend to the extravagant at times";

(b)He "... has been variously described as: a rapist, serial sex rapist, sex fiend, sexual predator, sexual offender, notorious sexual offender, infamous sexual offender, serial sex predator and a monster";

(c)His prior criminal history "has been repeatedly exposed";

(d)The material before the court ".... certainly establishes repeated negative and sustained interest in Mr Fardon";

(e) The appellant "... has been the subject of sustained negative emotive and, at times, alarmist media coverage which has repeatedly branded him and disclosed prior offences".

[33] Against that background, it was submitted, that the primary judge erred by:

(a)Concluding that it "... may be that by the time of trial any lingering prejudice from dated publications has dissipated";

(b)Placing too much emphasis upon R v Ferguson*; ex parte* A-G (Qld)²; and

(c)Placing too much emphasis upon the possibility of the appellant raising the defence of honest and reasonable mistake of fact, a defence that was not raised.

The primary judge's reasons

[34] In her reasons, the primary judge observed that the matter raised issues favouring both the grant and refusal of a no jury order. She concluded that she must approach the application without any preconception or presumption about the appropriate mode of trial. She referred to the way in which the appellant had been "routinely portrayed in negative and derogatory terms" in the media but noted that the period covered by the material before her concluded more than a year before the hearing date. She noted also that much of the material before her did not reveal the full content of the item with which it was concerned or the prominence given to its publication.

[35] The primary judge observed that the media coverage largely coincided with proceedings in the Supreme Court, the Court of Appeal and the High Court in 2003, 2004, 2006 and 2007. She concluded also that there appeared to have been little media coverage relating to the appellant after he was charged with the subject offence. The primary judge proceeded to discuss protections against improper influence and bias afforded by the nature of a jury trial, the trial judge's directions and warnings to the jury, and the provisions of the Jury Act 1995 (Qld), including s 69A. Her Honour quoted, at some length, from the reasons of the court in R v Ferguson*; ex parte A-G (Qld).*³ Her Honour's reasons in that regard included:

"In Ferguson the Court of Appeal said at [26], '[T]here is an abundance of authoritative statements that even where a trial is accompanied by adverse publicity, even adverse publicity concerning the accused's previous criminal convictions, the Court should be slow to conclude the resultant risk of unfairness to the accused is intractable, because the jury is unlikely to be amenable to the directions of the trial Judge to ignore the adverse publicity and render the verdict based on the evidence.'

And later at [39]-[40], 'The jury trial has not been regarded and should not be regarded as an exotic and delicate contrivance, the integrity of which cannot survive jurors' knowledge of matters adverse to an accused gained other than through admissible evidence.'

I accept Mr O'Gorman's submission that the test applied in cases such as Ferguson is more onerous than applies to this application."

[36] Her Honour then turned to consider matters which favoured a jury trial and said:

"The final matter that, I think, arises on this application is whether the trial will involve factual issues which require the application of objective community standards, for example, reasonableness. This is the circumstance referred to in s 615(5) in which a Court may decide to refuse the order.

Here the defendant and complainant have known each other for some years and have a history of prior consensual contact. The complainant alleges that she did not consent to the particular activity charged.

As well as determining what happened, the trial involves a contest about whether the complainant consented to whatever took place.

Given their prior dealings a defence of honest and reasonable mistake of fact about consent may fall to be considered by the trier of fact. Mr O'Gorman conceded that was a possibility. Given the statement the complainant has made to police, as they were presented in the Crown submissions I would put the prospects higher than a possibility."

[37] Her Honour later concluded that the matters which would arise on trial were ones which required "the application of objective community standards" and that, by implication, it was desirable that they be ruled on by a jury.

Consideration

[38] Sections 614 and 615 of the Criminal Code relevantly provide:

614 Application for order

(1)If an accused person is committed for trial on a charge of an offence or charged on indictment of an offence, the prosecutor or the accused person may apply to the court for an order (no jury order) that the accused person be tried by a judge sitting without a jury.

(2)The application must be made under section 590AA before the trial begins.

…

615 Making a no jury order

(1)The court may make a no jury order if it considers it is in the interests of justice to do so.

(2) However, if the prosecutor applies for the no jury order, the court may only make the no jury order if the accused person consents to it.

(3)If the accused person is not represented by a lawyer, the court must be satisfied that the accused person properly understands the nature of the application.

(4)Without limiting subsection (1), (2) or (3), the court may make a no jury order if it considers that any of the following apply—

(a)the trial, because of its complexity or length or both, is likely to be unreasonably burdensome to a jury;

(b)there is a real possibility that acts that may constitute an offence under section 119B would be committed in relation to a member of a jury;

(c)there has been significant pre-trial publicity that may affect jury deliberations.

(5)Without limiting subsection (1), the court may refuse to make a no jury order if it considers the trial will involve a factual issue that requires the application of objective community standards including, for example, an issue of reasonableness, negligence, indecency, obscenity or dangerousness."

[39] Having regard to my conclusion that the appeal should be allowed on the other ground it is unnecessary to decide whether the appellant has established that the exercise of the primary judge's discretion miscarried. I will however make a few brief observations in relation to the exercise of the discretion under s 615. There had been a great deal of adverse publicity concerning the appellant over a lengthy period of time arising, in particular, from the application to him of the provisions of the Dangerous Prisoners (Sexual Offenders) legislation. The protracted public vilification of the appellant made it likely that some jurors would have knowledge of his infamy despite there being little adverse publicity about the appellant (if that was the fact) in the two years preceding his impending trial. There was thus ample justification for the making of a non jury order.

[40] The appellant's argument, in substance, was that the countervailing considerations on which the primary judge relied were insufficient to outweigh the possibility of prejudice to the appellant resulting from his public notoriety. An obvious question for the primary judge to resolve was whether any notoriety attaching to the appellant would be likely to be such that the safeguards relied on by the primary judge and discussed at some length in Ferguson, would assure the appellant a fair trial.

[41] There were some matters which supported the primary judge's exercise of her discretion. The alleged offence occurred, not only in the course of an existing sexual relationship between the appellant and the complainant, but, if the complainant's evidence was to be accepted, by way of a brief deviation from consensual sexual activity terminating immediately after the complainant's oral protest. Although the alleged act of anal penetration might be regarded by some or all members of the jury as distasteful, it was not conduct likely to provoke strong emotions or prejudice against the appellant. Moreover, the issues confronting the jury were likely to be confined ones of whether any anal penetration had been consensual and, if not, whether the appellant had acted under "an honest and reasonable, but mistaken, belief in the existence of" consent.

[42] The latter issue was rightly regarded by the primary judge as involving the application of objective community standards and therefore falling within s 615(5).

[43] The primary judge placed considerable weight on the reasons of this court in Ferguson, while acknowledging that the onus on an applicant for a stay of proceedings was more onerous than the burden on an applicant under s 615. Her Honour was correct in that regard, but it is perhaps more helpful when considering cases such as Ferguson to recognise that the public policy considerations involved in applications to stay proceedings are substantially different from those which arise under s 615. It is the function of the Executive and not of the courts to decide whether a person should be prosecuted.⁴ Consequently, the staying by the Court of criminal proceedings is regarded as "most exceptional".⁵ Freedom of expression in a democratic society carries with it the possibility that there may be some risk that a jury may be influenced by pre-trial publicity. But despite this, as Brennan J explained in The Queen v Glennon:⁶

"Administration of the criminal law cannot be made hostage to conduct amounting to contempt of court, even if the contempt be flagrant. If it were otherwise, the perpetrators of crimes which shock the public conscience, such as those charged in Murphy v. The Queen ((1989) 167 CLR 94), would oftentimes go untried and unpunished, for pre-trial publicity prejudicial to an accused is stimulated by the notoriety of the accused and the heinousness of the crime. Yet it would undermine the criminal law's protection of society and its members to refuse to allow the law to take its ordinary course in these cases. The administration of criminal justice by the courts, which proceeds inexorably to its conclusion in each case, would be adventitious if trials could be halted by a punishable contempt. In cases where a punishable contempt is committed – at least where the contempt is flagrant – public obloquy would be substituted for jury verdict and trial by media would supersede trial according to law. No community governed by law could acknowledge that persons outside the control of the State could possess such a capacity for disrupting the administration of criminal justice."

[44] The overriding consideration in the exercise of a discretion under s 615 is whether it is in the interests of justice to make the order. And, as Deane J said in Hinch v Attorney-General (Vic):⁷

"The ability of a society to provide a fair and unprejudiced trial is an indispensable basis of any acceptable justification of the restraints and penalties of the criminal law. Indeed, it is a touchstone of the existence of the rule of law."

[45] Section 615 provides, in the appropriate case, a useful mechanism by which the Court can avoid the possibility of an unfair trial.

The unsafe and unsatisfactory ground

The appellant's submissions

[46] Counsel for the appellant submitted to the following effect. A properly instructed jury could not be satisfied beyond reasonable doubt that the only rational inference to be drawn from the evidence was that the appellant raped the complainant. The prosecution case relied heavily on a video recording of the police interview of the complainant and on her pre-recorded trial evidence. The jury thus did not have an advantage not available to the appellate court.

[47] Because of the disjointed, non-sequential way in which the complainant's account of events emerged in the police interview, it was difficult to ascertain the true facts.

[48] The following evidence should have made it impossible for the jury to be satisfied beyond reasonable doubt that the appellant engaged in non-consensual anal sex:

(a)The complainant stated that the appellant stopped when asked to do so;

(b)The complainant said that the activity complained of was something she did not "like" as opposed to something to which she had not consented;

(c)Shortly after the alleged rape, the complainant accompanied the appellant to the surf club where she was observed to be her normal self;

(d)The complainant was unsure of and/or could not remember what happened;

(e)The complainant's accounts of what actually happened contained inconsistencies;

(f)The complainant did not realise that anything was wrong for more than 15 hours after the incident;

(g)The events in question must be seen in the context of a long term acquaintance and sexual relationship of and between the complainant and the appellant.

Consideration

[49] In MFA v The Queen,⁸ Gleeson CJ, Hayne and Callinan JJ said in relation to the test to be applied when determining if a verdict is unsafe or unsatisfactory:

"Where it is argued that the verdict of a jury is unreasonable, or cannot be supported, having regard to the evidence, the test to be applied is that stated by Mason CJ, Deane, Dawson and Toohey JJ in their joint judgment in M v The Queen. That test was accepted and applied by this Court in Jones v The Queen. In M, it was pointed out that it was once common for expressions such as 'unsafe or unsatisfactory', or 'unjust or unsafe', or 'dangerous or unsafe' to be used in place of the language of s 6(1) of the Criminal Appeal Act, and corresponding statutes in other jurisdictions, and that such expressions might cover different parts of the statutory provision, referring, for example, either to a verdict that is unreasonable, or cannot be supported, having regard to the evidence, or to a miscarriage of justice because an accused has not had a fair trial according to law.

Speaking of cases where what is in question is whether a verdict is unreasonable, or cannot be supported having regard to the evidence, the joint judgment said:

'Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it 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.'" (footnotes deleted)

[50] In their joint reasons in MFA v The Queen, McHugh, Gummow and Kirby JJ said:⁹

"The majority in M pointed out that '[i]n most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced'. In such a case of doubt, it is only where the jury's advantage of seeing and hearing the evidence can explain the difference in conclusion about the accused's guilt that the appellate court may decide that no miscarriage of justice has occurred:

'If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.''' (footnotes deleted)

[51] There were some obvious difficulties with the prosecution case. The complainant, as the transcript reveals, suffered from some intellectual impairment. The extent of the impairment and its effect, if any, on the complainant's memory and comprehension were not the subject of evidence. It was apparent however that the complainant's disability was productive of a lack of coherence in the narrative provided by her in her police interview.

[52] It is clear from the interview that at the time of the incident the complainant was either unaware that she had been penetrated anally or, if aware, did not object to the penetration. Her reference in the interview to screaming because the appellant was hurting her, came after she mentioned what neighbours had said about hearing screaming. She repeated her evidence about neighbours hearing screaming and, after a substantial digression, she was taken back by the interviewer to her account of the incident. The complainant said, referring to vaginal intercourse, that the appellant was using his penis. The discussion continued:

"SS:And then what's happened after that?

MS:When um, that was it and then you know we came back out and was just was talking and that.

SS:Okay you said to me before we came in here that there was screaming and you told him no.

MS:I did I told him to stop because he was doing it up back (i/u)...

SS:Okay.

MS:And it was hurting (i/u).

SS:So, so you were having, having intercourse at the front passage...

...

MS:And that didn't hurt.

SS:Yep and then what's happened?

MS:And then I think he, he did it up the back...

SS:Yep.

MS:I'm not sure because I, because that's where the damage was done.

SS:Okay so...

MS:Yeah.

SS:So you were having intercourse and he's gone up the back passage...

MS:Yeah.

SS:But what do you mean 'the back passage' what do you call...

MS:Well (i/u) I didn't realise...

SS:Yep.

MS:You know that there was anything wrong.

SS:So um, so he's having intercourse with you up his [sic] bottom...

MS:Yeah.

SS:Uh up your bottom...

MS:Yeah but I don't know (i/u)...

SS:And they said that you were screaming?

MS:I was screaming yeah the neighbours heard me. The neighbours heard screaming.

SS:And what were you saying when you were screaming?

MS:Oh I just kept saying don't hurt me, please don't hurt me, please don't hurt me.

SS:Mmm hmm.

MS:You're hurting me.

SS:Mmm hmm.

MS:That's what I said.

SS:Mmm hmm. 'You're hurting me' what did you mean?

MS:Because it hurt when he was pushing it up me backside.

SS:Yep.

MS:And I didn't know you know...

SS:Yep.

MS:He said he put it up the front but he didn't.

SS:Mmm hmm.

MS:Yeah.

SS:Did you tell him stop?

MS:I did but you know he said to me that he wasn't hurting me when he, when he did hurt me.

SS:So you said 'don't hurt me, don't hurt me' when did you tell him to stop?

MS:Um, I told him to stop and he did and that was it.

SS:So he stopped when you told him to stop?

MS:Yeah, yeah. But I didn't realise that neighbours complained about me screaming.

SS:So told him to stop...

MS:Yeah.

SS:And that's when he stopped?

MS:Yeah.

SS:Yep.

MS:But I don't know the name of the neighbours who, who um, complained...

SS:Okay.

MS:Because um, there was um, complaints from neighbours and, and that.

SS:Okay so when you screaming 'don't hurt me, don't hurt me' and he was saying 'I'm not'...

MS:Yeah.

SS:And then you've told him to stop and he's stopped?

MS:Yeah he's stopped then yeah.

SS:Yep okay.

MS:Yeah and I think that that's when the damage was done I don't know...

SS:Yeah.

MS:I'm not sure.

SS:Yep, yep."

[53] It is difficult to glean from that passage whether the complainant is stating an actual recollection of having experienced pain and of having asked the appellant to stop, or whether she is reconstructing what has happened as a result of talking to her neighbour or neighbours and of her understanding the next day derived from the soreness to her anus and the state of her sheets. There is an inconsistency between her implicit assertion in the above quotation that she cried out when suffering pain as a result of anal penetration and the other evidence that she didn't understand that she had been anally penetrated until the following day. Taken with the balance of her interview, it is clear that the complainant made no objection on 2 April 2008 to any of the sexual activity in which she and the appellant had engaged that day.

[54] It is difficult to understand why the complainant did not associate her pain with penetration of her anus if such penetration caused her pain. She said, early in her interview, that she had been drinking "so heavily" that she didn't remember what happened. Inebriation could provide an explanation for her failure to appreciate the source of her pain. But her evidence about the extent of her inebriation is internally inconsistent and inconsistent with the evidence of Mr Alford. She had earlier said that she had two rum and cokes to drink at the club. Later, she said she didn't know how much rum she had "because it was [a] full bottle like that", meaning that rum had been poured from a bottle which was full initially. The complainant's words were interpreted by her interviewer as, "But you said that you had um, a full bottle". Later, the complainant said that she and the appellant were both drinking rum and coke and they were doing this "at home" in the lounge room. She corrected this to a statement that the rum and coke was consumed after they returned from the club where "he bought me rum and coke". She was then asked, "So where, what time did you have the big bottle of rum?" The complainant said she couldn't remember and the discussion moved on to the topic of what happened in the bedroom. The window of opportunity for drinking prior to the incident was quite limited. The complainant's evidence was that she and the appellant returned to her unit from Brisbane at about 3.30pm and then went over to the club. The return from Brisbane must have been earlier as the incident was of a substantial duration and occurred before the appellant and the complainant went to the club. The complainant's evidence was that intercourse commenced virtually immediately upon their return to her unit from Brisbane. CCTV film footage establishes that they entered the club at 3.31pm and left at 5.01pm. At about 4.50pm, Mr Alford spoke to the complainant, who appeared her normal self and unaffected by alcohol.

[55] Once it is accepted that the evidence does not support the conclusion that the complainant was heavily under the influence of alcohol at relevant times, it becomes impossible to explain why she would have been unaware that anal penetration had taken place if the penetration was the cause of her pain. The prosecution did not advance any other cause. Counsel for the respondent submitted that an explanation may lie in the complainant's intellectual impairment. But there was no evidence that the complainant's senses, feelings or nervous system were in any way abnormal.

[56] Some time "after lunch" Ms Charabaroc heard the complainant crying and screaming and heard her call out "don't do that". She accepted that after those words were spoken, the noise stopped immediately. This evidence and the absence of any evidence of complaint or protest to the appellant by the complainant about the nature of his actions causing her pain suggests that it was the pain and not the way in which it was inflicted which provoked the cries and words spoken by the complainant.

[57] The absence of a complaint to the appellant about anal penetration is highly relevant to the question of whether a defence of mistake had been negatived. The complainant gave evidence of "making love" and of "having intercourse for quite some time". In this context she said, "I told him I enjoyed it because I did but I didn't realise that he had done that, that he done what he did to me up the backside". Even in the unlikely event that the complainant was unaware of having been anally penetrated the appellant could not be expected to understand that the complainant was ignorant of what he was doing. He was undoubtedly aware however, that the complainant was manifesting no signs of disapproval of his conduct.

[58] When in her interview the complainant said, in effect, that she gave permission for vaginal penetration but not for anal penetration, it is unlikely that she intended to convey that the consent or lack of consent was expressed by words rather than by conduct. That was not something clarified in the interview.

[59] The prosecution, and counsel for the respondent on appeal, relied substantially on the complainant's account in her interview of what was said by her to the appellant on and after an earlier occasion on which she said anal penetration had taken place as proof of non-consent. In that regard, the complainant made inadmissible assertions, to which there was no objection, that the appellant knew she "hated it that way" and "knows that I don't like it that way". She said that at an unspecified time in the past the appellant had told her that he would "never do it to [her] again" and that she had told the appellant "many a times that … [she didn't] like it that way".

[60] It is difficult to gauge from the complainant's evidence in this regard whether everything that was said by her and the appellant about anal penetration was said on the earlier occasion on which anal penetration occurred (it is reasonably clear, despite the interviewer's misunderstanding that the complainant was referring to only one such occasion prior to the incident) or whether the topic of anal penetration arose from time to time in discussions between them.

[61] But a conclusion that the complainant made her dislike of anal penetration known to the appellant on more than one occasion in the past, or even at the beginning of their sexual encounter, does not establish, necessarily, that any anal penetration in the incident was non-consensual. The question of consent or the existence of an honest and reasonable belief in that regard by the appellant must be decided also by reference to the appellant's acts and the complainant's responses, and absence of responses, leading up to and at the time of anal penetration. It is also relevant, as counsel for the appellant submitted, that the thrust of the complainant's evidence about what she had said in the past to the appellant about anal penetration was that she "didn't like it".

[62] The complainant's preoccupation with what her neighbours may have heard and actual and/or potential complaints by them about noise gives rise to concern also. She mentioned such matters repeatedly in the course of her interview. The complainant had a concern that neighbours' complaints about noise might result in her having to move from her unit, giving rise to a possibility that the complaint was provoked by a desire to provide some justification for the noise made during the incident.

[63] It seems to have been assumed by the complainant and by counsel on the trial that any pain which provoked the noises heard by Ms Charabaroc was the result of anal penetration. The complainant, however, was also sore "in the front passage" and passing urine hurt her. She told her interviewer that the appellant had "used a fist" when "he was fingering" and that it hurt her. It is therefore by no means clear that the complainant's pain and discomfort was associated with anal penetration. After all, the thrust of her evidence was that she did not understand until the next day that anal penetration had taken place and that her understanding was derived from her soreness in her anal/rectal region and from seeing the tube of KY gel.

[64] The complainant mentioned the use of the fist after the conclusion of one of the three tapes used in the interview. The interviewer raised the matter when recording resumed. Counsel for the appellant submitted that the way in which this evidence had been obtained diminished its reliability. Of more concern, however, is the disjointed nature of the interview, its inconsistencies, general lack of coherence, and the difficulty in identifying when relevant matters referred to by the complainant are said to have occurred or are likely to have occurred. I make no criticism of the interviewing police officer. Plainly the task of extracting a coherent narrative from the complainant was a difficult one.

[65] The combination of the evidentiary difficulties identified above leads me to conclude that after making allowance for the limited advantage enjoyed by the jury, who saw a video recording of the police interview and of the complainant's evidence-in-chief and cross-examination, there is a "significant possibility"¹⁰ that an innocent person has been convicted. In my view it was not open to the jury to be satisfied beyond a reasonable doubt of the appellant's guilt.

[66] I do not consider that it would be appropriate to order a retrial. The difficulties with the complainant's evidence identified above would be present on any retrial. Also, the appellant has been held in custody since 3 April 2008 pursuant to the Dangerous Prisoners (Sexual Offenders) Act in consequence of his having been charged with the subject offence. In my view the appellant has been in prison for a period as long as, if not longer than, any term of actual imprisonment likely to be imposed were he to be convicted on a retrial.

[67] The sentence of 10 years imprisonment (in excess of 12 years if pre-trial custody is taken into account) imposed by the primary judge, with respect, failed to reflect the alleged nature of the appellant's offending conduct, namely a non-consensual act of digital penetration in the course of consensual sexual activity between persons in a longstanding sexual relationship which, if specifically objected to, was immediately discontinued. The appellant was sentenced on the basis that the penetration had been digital. The primary judge was not referred to decisions which would have provided more relevant sentencing guidance: sentences imposed for rape after the breakdown of a marriage or longstanding de facto relationship.

Conclusion

[68] For the above reasons I would order that:

(a)the appeal be allowed;

(b)the conviction be set aside;

(c)a verdict of acquittal be entered.

[69] CHESTERMAN JA: I agree with the orders proposed by Muir JA and with his Honour’s reasons for proposing those orders. I add some observations of my own on the appellant’s challenge to the refusal of the District Court Judge to make a “no jury order”.

[70] The relevant provisions, s 614 and s 615 of the Criminal Code, have been set out in the reasons for judgment of Muir JA. I will not repeat them. Very similar enactments in s 118 of the Criminal Procedure Act 2004 (WA) have given rise to some differences of judicial opinion.

[71] Appeals from no jury orders are likely to be rare because any challenge is against a judicial discretion exercised by reference to undefined and indeterminate parameters. The conventional test found in House v The King (1936) 55 CLR 499 at 504-5 is unlikely to reveal appealable error. The width of the discretion conferred by s 615(1) will make challenges to it very difficult. We were not referred to any case in which an attempt has been made. It may therefore be helpful on this occasion to say something of the approach to be taken when an application for a no jury order is made.

[72] The court may make such an order “if it considers it is in the interests of justice to do so”. The only indication of when it may be in the interests of justice to make a no jury order appears in s 615(4) but the circumstances in which an order may be made are not confined to those examples.

[73] What is meant by the phrase was helpfully discussed by McKechnie J in TVM v The State of Western Australia (2007) 180 A Crim R 183 in paragraphs [22] to [28]:

“22 The compendious phrase ‘the interests of justice’ appears in many statutes and is a phrase often referred to by courts. Consideration of the interests of justice arises in many contexts. In relation to cross-vesting jurisdiction, the Full Court of the Family Court in Chapman v Jansen (1990) 100 FLR 66 said per Nicholson CJ (at 74):

In my view the expression ‘the interests of justice’ is not one which should be narrowly defined and indeed it may not be particularly helpful to attempt to define it at all. I do not think that it is a concept which courts should find difficult to apply. The interests of justice will vary from case to case, and I think that, in general, in considering applications under this legislation, a broad approach is the approach to be preferred.

23 See also Bankinvest v Seabrook (1988) 14 NSWLR 711.

24 BHP Billiton Ltd v Shultz (2004) 221 CLR 400, is another case where the phrase ‘the interests of justice’ was considered in respect of cross-vesting legislation. As Kirby J held at [172] the determination of the interests of justice is a power that involved the judicial evaluation of a number of factors. It requires an ultimate judicial decision framed in terms of criteria expressed in very general language.

25 In a matter somewhat closer to the present case, in that it concerned criminal proceedings, Malcolm CJ referred to the interests of justice in Mickelberg v The Queen (No 3) (1992) 8 WAR 236 … and said:

The interests of justice in a particular criminal case are to ensure that a person who is accused of a crime is convicted if guilty and acquitted if innocent after he has had a fair trial. The interests of justice also extend to the public interest and in due administration of justice.

26 In Re Corruption and Crime Commission; Ex parte West Australian Newspapers Ltd (2007) 174 A Crim R 325 at [29], Templeman J regarded the test for determining the interests of justice as the avoidance of injustice.

27 As the District Court has all the powers of the Supreme Court in its criminal jurisdiction, decisions of that court are of significant persuasive value. In Western Australia v Veskovich (2005) 40 SR (WA) 332. Wisbey DCJ considered the phrase ‘is in the interests of justice’ holding at [5], [9]:

The expression ‘in the interests of justice’ is not defined, but it is reasonable to assume that it refers to a fair trial according to law. Essentially it appears to me that it is only if there is a likelihood that a fair trial according to law may not eventuate in a jury trial that the discretion reposed in s 118(4) is enlivened.

I am not satisfied that the applicant has established a basis calling for the exercise of the Court’s discretion.

28 The phrase ‘the interests of justice’ is not an expression capable of easy articulation or explanation because it is conclusionary in its nature. Necessarily, a judge takes into account many factors before concluding where the interests of justice may lie. The phrase ‘the interests of justice’ is devoid of content except where it is given form by the particular facts and circumstances of a case.”

[74] I would endorse the remark that the phrase “the interests of justice” is so general and, indeed, abstract, that it takes on meaning only by a consideration of the particular facts relevant to an application for a no jury order.

[75] McKechnie J observed that a common example of unfairness which it would be in the interests of justice to avoid is adverse pre-trial publicity. His Honour noted that such an order might be required to overcome “any lingering prejudice” from such publicity but noted that:

“it is also both the law and the experience of the law that juries are, when properly directed, able to put aside prejudice and sympathy, and deliver verdicts on the facts in a dispassionate manner.”

The learned primary judge took that view in the present case and expressed her confidence in the jury’s capacity to deliver a true verdict despite the extraneous influence of the “corrosive and prejudicial effect of pre-trial publicity”. That was a view open to her Honour and not one which, I apprehend, could have been successfully set aside on appeal. Nevertheless the appellant’s conviction on an incoherent prosecution case may suggest that on this occasion the confidence was misplaced.

[76] A point on which there have been differences of opinion within the Supreme Court of Western Australia is whether, on an application for a no jury order, the court should start from the premise that a criminal trial ought to be by judge and jury so that the applicant must displace that preference; or whether the sections imply no preference and regard both modes of trial as equally valid and equally applicable.

[77] In The State of Western Australia v Martinez (2006) 159 A Crim R 380 EM Heenan J said (389):

“… one should not approach an application for trial by Judge alone for a serious offence on the footing that there is a preliminary, presumptive or other inclination that trial by jury must be regarded as the preferential starting point. … one should adopt a neutral position in relation to the preferred mode of trial on any such application and focus upon what are the interests of justice in the particular case.”

[78] Martin CJ endorsed that view in Arthurs v The State of Western Australia [2007] WASC 182. His Honour said:

“[71] The question of whether trial by jury is by reason of the policy considerations identified by Deane J generally to be preferred to trial by Judge without a jury is … a matter for the legislature, not the courts. As I agree with Heenan J that in s 118 the legislature has expressly declined to stipulate any general preference for one form of trial over another, observations of the kind made by Deane J as to the general desirability of one form of trial over another are … not germane to the issues which arise under s 118, save to the extent that they identify factors which may have a particular resonance due to the circumstances of a particular case.”

[79] The judgment of Deane J to which reference was made was in Kingswell v The Queen (1985) 159 CLR 264 at 301.

[80] A different approach was taken by McKechnie J in TVM. His Honour said:

“[13]… The very requirement to make an application suggests that the ordinary course of trial is trial by jury. In order to change the ordinary course it is necessary for one of the parties to make an application. …

…

[20]… I am unable to follow the principle in Arthurs and Martinez that in the resolution of the application a judge starts from a neutral position as to a preferred mode of trial. Instead, it is my view that on an application under s 118 a judge, concluding that it is in the interests of justice for a trial to be held before a judge alone instead of judge and jury, exercises a discretion whether to make the order for trial by judge alone.

[21]In most cases, a finding on the interests of justice is likely to be determinative of the exercise of the discretion … but there may be some occasions where … the discretion is effectively exercised to continue trial by jury.”

[81] I respectfully support this opinion. The Criminal Code provides that ordinarily indictable offences are to be tried by a jury. Section 604 provides:

“Trial by Jury

Subject to chapter division 9A and subsection (2), if the accused person pleads any plea or pleas other than the plea of guilty, a plea of autrefois acquit or autrefois convict or a plea to the jurisdiction of the court, the person is by such plea, without any further form, deemed to have demanded that the issues raised by such plea or pleas shall be tried by a jury, and is entitled to have them tried accordingly.

Issues raised by a plea of autrefois acquit or autrefois convict must be tried by the court.”

Sections 614 and 615 are in Chapter division 9A, “Trial by judge alone”. It follows that trial on indictment before a judge without a jury is exceptional. An applicant for a no jury order must show why the case comes within the exception. An applicant for such an order, prosecutor or accused, must satisfy the court that it is in the interests of justice that that be the mode of trial. If the Code expressed neutrality and no preference for a trial by a jury the order could be had for the asking. As it is the sections make it clear that there must be an application for a trial without a jury and, in accordance with ordinary principles, demonstrate why such an order is in the interests of justice.

[82] The second topic on which there has been some difference of opinion is whether the community more readily accepts a verdict delivered by a jury than one delivered by a judge and, if so, the preference for the former is a factor relevant to the exercise of the discretion to make a no jury order.

[83] In Martinez Heenan J thought that:

“[6] … a panel of fact finders is likely to better reflect the objective standards of the community as a whole than any individual.”

[84] Martin CJ disagreed in Arthurs. The Chief Justice thought that the legislation’s stated preference for trial by jury (which appears in s 615(5) of the Code):

“[63]… has been clearly limited … to trials in which issues are likely to arise which will involve the determination of the question of whether the particular conduct established in that case falls on one or other side of the line between acceptable and unacceptable conduct in circumstances in which there is a range or spectrum of conduct which may or may not be acceptable according to contemporary community standards.”

His Honour also said:

“[72]… the proposition that ‘the community as a whole will be more likely to accept a jury’s verdict than it would be to accept the judgment of a judge’ appears to be an assessment of a sociological nature, unsustained by any empirical evidence.”

[85] McKechnie J pointed out in TVM:

“[32]… The fact that a judge must deliver written reasons, where a jury gives a general verdict, is of no consequence. That is a difference between the two modes of trial provided for by law. The inscrutability of a verdict of 12 is tempered by unanimity. The verdict of one is tempered by the exposure of reasons. The interests of justice cannot then be affected by the mode of trial, each being valid.”

[86] I would throw my lot in with Martin CJ and McKechnie J. There is no reason to think, and no basis in law for concluding, that one mode of trial is more “socially acceptable” than the other. The discretion to make a no jury order should be unaffected by any notion that “the community” will more readily accept the validity of one mode of trial over the other.

[87] The circumstances identified in s 615(5) which may make it appropriate to refuse a no jury order are limited to those in which the tribunal of fact must determine on which “side of the line between acceptable and unacceptable conduct” the facts proved against an accused fall. The reasonableness of a belief as to consent is in this category. The finding of fact as to what was said or done on a particular occasion is not.

[88] The third question concerns the weight to be afforded to an accused’s subjective opinion that a trial before a jury might not be fair. Martin CJ in Arthurs thought at [79] to [80] that such a view “may be entitled to significant weight”. I would prefer the different view of McKechnie J, that the interests of justice and the interests of an accused may not coincide. More significant than an accused’s subjective preference for a particular mode of trial are the grounds on which it might be said, objectively viewed, that there is a significant possibility that a trial before a jury might not be fair.

[89] For the reasons given by Muir JA it is not necessary to determine whether the primary judge’s discretion to refuse a no jury order miscarried. As I have explained the appellant faced a difficult task in attempting to demonstrate it had.

[90] The orders should be as Muir JA has proposed.

[91] McMEEKIN J: I agree with the reasons of Muir JA and the orders his Honour proposes.

Footnotes

1. Criminal Code 1899 (Qld), s 668E(1). ↩

2. [2008] QCA 227. ↩

3. [2008] QCA 227. ↩

4. R v Smith [1995] 1 VR 10 at 25. ↩

5. Jago v District Court (NSW) (1989) 168 CLR 23 at 31. ↩

6. (1992) 173 CLR 592 at 613, 614. ↩

7. (1987) 164 CLR 15 at 58. ↩

8. (2002) 213 CLR 606 at 614. ↩

9. (2002) 213 CLR 606 at 623. ↩

10. MFA v The Queen (2002) 213 CLR 606 at 623. ↩