REGINA v Daniel Thomas DAVIS

WOOD CJ at CL HULME J BELL J

Friday 3 September, 2004 REGINA v Daniel Trevor DAVIS Judgment 1 WOOD CJ at CL: I have read in draft form the judgment of Bell J. I agree with the orders proposed, and with the reasons of her Honour. 2 HULME J: I agree with Bell J. 3 BELL J: Daniel Trevor Davis, the appellant, appeals against his conviction on two counts of having sexual intercourse with RC without the consent of RC, knowing that she was not consenting thereto. The offences are each alleged to have occurred on the evening of 30 January 2002. 4 The appellant was tried before his Honour Judge Phelan (the Judge) and a jury in the District Court at Wollongong. The trial commenced on 17 February 2003. On 20 February 2003 the jury returned verdicts of guilty on each count. 5 The appellant was sentenced to a term of five years' imprisonment, commencing on 20 February 2003. A non-parole period of three years was specified.

The C r own case 6 The complainant, RC, was aged sixteen years at the date of these events. On 30 January 2002, she and her boyfriend together with a number of others, including the appellant, were at her sister MK's house. They were all drinking alcohol. By the early evening both the appellant and RC were significantly affected by alcohol. 7 RC was wearing jeans and a red singlet top. 8 By sunset RC was feeling very drunk and unwell. She went to the bathroom and vomited. On her return she saw that most of the guests, including her boyfriend, had left. Only MK and MK's children remained. 9 RC went outside to confront a young woman named Lisa who had been at the premises earlier and with whom she had an ongoing dispute. The two engaged in a physical fight in the street. They traded punches and RC sustained a black eye. She ended up pinning Lisa to the ground by kneeling over her. She acknowledged in evidence that she may have grazed her knees in the course of this confrontation. 10 After the fight RC returned to the living room. MK and the children were in another room. After a little time the appellant returned and joined RC in the living room. He made advances towards her, saying that, "he wanted to get with her". She rebuffed his advances, pointing out that each of them was in a relationship with another person. The appellant persisted, grabbing RC on the leg and thigh. 11 RC decided to go home. She called out a farewell to MK and left. Shortly after this the appellant left the premises and caught up with RC as she was walking home. 12 As the two were walking along the appellant repeated his wish to "get together" with RC. She again rejected his advance. Her recall of events was not complete. She remembered that she had ended up against a tree in a paddock with the appellant in front of her kissing her face and neck. She repeatedly said "no" to him and he told her to shut up. He removed her clothing, taking off her top and pulling her jeans down. RC told him that she had her period, but he said that it did not matter. After this she removed her tampon because she was, "scared it was going to get stuck there". 13 RC said that she kept saying "no" to the appellant as he was removing her clothes. She had not physically resisted him because she was scared. 14 The appellant directed RC to get on her hands and knees saying, "fucking move back and open your legs". She complied because she was scared. She crying at the time and saying "no". The appellant anally penetrated her. This was the act charged in the first count in the indictment. 15 A man came out of a neighbouring house inquiring what was going on and the appellant called out, "it's alright, it's my girlfriend". RC did not call out. A later canvass of the surrounding houses did not locate this person. 16 After the episode of anal intercourse the appellant instructed RC to lie on her back. She complied and he lay on top of her and penetrated her vaginally. This was the act charged in the second count in the indictment. 17 After this further act of intercourse the appellant and RC left the paddock and walked together in the direction of their respective homes. The appellant asked RC to promise that she would not say anything to any person and she agreed. On the way home they ran into a friend of the appellant's named Drew. RC had stopped crying by this time, but she was still upset. The appellant told Drew that RC's boyfriend had left her and that he was taking her home. RC said nothing to Drew. 18 RC returned home between 9:00 and 10:00 pm. Among the persons present were her cousin, SK. RC did not have a clear recall of events following her return home or what if anything she said to SK.

19 SK gave evidence that RC said, "Dan just raped me". RC was wearing her top inside out when she returned home that night. SK told RC to have a shower, which she did. 20 The police were called. Later that evening RC was examined by Dr Ellacott at the Wollongong Hospital.

21 MK gave evidence that the appellant returned to her house after the fight between RC and Lisa. She said that he had come into the lounge room where RC was sitting and she had heard them talking about the fight. 22 The appellant was interviewed by the police on the afternoon of Friday 1 February 2002. He denied that he had had sexual intercourse with RC.

The appellant's case 23 At the trial the appellant gave evidence and admitted to sexual intercourse, both anally and vaginally, with RC. He said that it had been consensual and that RC had "come on to me" (T 190.10). RC had kept her top on during the acts of intercourse. He maintained that he had not returned to MK's house after the fight between RC and Lisa. 24 The appellant said that he had lied in his interview with the police about having intercourse with RC because his girlfriend was pregnant and he believed that she would dump him and because he did not want to go to gaol.

25 The issues at trial were whether the Crown could prove that RC did not consent to the acts of intercourse and if so, whether the appellant knew that she was not consenting. 26 The appeal challenges the convictions on two grounds.

Ground 1 The trial of the appellant miscarried due to the admission of the evidence of Dr Ellacott regarding: a. An opinion that 'it was highly probable that sexual assault, both anal and vaginal, had occurred'. b. An opinion as to the cause and method of the infliction of injuries, namely scratches and abrasions, sustained by the complainant. 27 The written submissions filed on the appellant's behalf were directed to the admission of the evidence in ground 1a. On the hearing of the appeal counsel did not press ground 1b. 28 Dr Ellacott was called in the Crown case. She conducted the examination of RC on the evening of 30 January 2002 at the Wollongong Hospital. She said that she was a medical practitioner who had been in practice since 1978. Her practice included the examination of persons who claimed to have been sexually assaulted. She had been doing work of this kind for five years.

29 Dr Ellacott said RC appeared to be quite agitated and shaking. She took a history that included that RC had sustained a black eye in a fight with another woman earlier that evening and that she had been sexually assaulted in a paddock at about 9:45 pm.

30 Dr Ellacott noted that RC had a number of injuries in addition to the black eye: a scratch on the right fifth finger; a bruise on the inside of the right wrist; both knees were red and tender; abrasions on the left breast; an area 85 x 10 mm that was red and bruised on the central area of the back; and abrasions and scratches on both buttocks above the natal cleft. 31 In Dr Ellacott's opinion the scratches on RC's buttocks were unlikely to have been occasioned at a time when RC was wearing jeans. 32 Dr Ellacott took anal and vaginal swabs. She noted that there was dirt on both the vaginal and anal swabs. The swabs were submitted for analysis. DNA consistent with the profile of the DNA of the appellant was detected on the low vaginal and anal swabs. 33 This ground complains of the following evidence given at the conclusion of Dr Ellacott's evidence in chief: "Q. Dr having regard to the history that you were given by RC about what she said happened to her and the injuries that you saw did you form any opinion as to what had happened to her? A. I formed the opinion that it was highly probable that sexual assault, both anal and vaginal, had occurred." (T 97.10)

34 The question was not objected to. No application was made by trial counsel with respect to the answer that Dr Ellacott gave to it. 35 In cross-examination Dr Ellacott agreed that her physical examination of RC revealed that her vagina was normal for a sexually active person and that there was no bruising or tearing of the anus. Trial counsel put to her: "Q. So in relation to that external examination though that would be equally consisted would it not be with consensual intercourse? A. Possibly." (T 18/2/03 98.15-18)

36 In the appellant's submission Dr Ellacott's opinion that it was highly probable that RC had been sexually assaulted vaginally and anally was inadmissible. In the event it was admissible it should have been excluded in the exercise of "the Court's discretion". In this respect counsel contended that the Doctor's opinion on this critical issue was likely to have a disproportionate effect on the minds of the jurors. 37 It was open to the Crown to adduce evidence from Dr Ellacott that one or more of the injuries that she observed was consistent with the history that RC gave. Equally it was open to adduce evidence that the absence of genital injury was not inconsistent with the history given. 38 The question invited Dr Ellacott to express an opinion about what had happened to RC. It should not have been asked. Given that Dr Ellacott did not detect injury to the anus or vagina her opinion - that it was highly probable that RC had been sexually assaulted anally and vaginally - appears to have been substantially dependent on the history that she was given and not upon any specialised knowledge. I consider that Dr Ellacott's opinion in this respect was not admissible as an exception to the opinion rule under s 79 of the Evidence Act 1995 and that, if objected to, it should have been rejected.

39 However, the evidence was received without objection. Therefore, the appellant requires leave pursuant to r 4 of the Criminal Appeal Rules to rely upon this ground. 40 The appellant filed an affidavit affirmed by trial counsel who said: "I did not object to this evidence and it is my considered view that I should have objected to the expression of opinion that non-consensual intercourse had occurred. I did not [not] object in order to gain some tactical advantage or preserve an appeal point; rather, it is my recollection that the reason I did not object was so as to minimise the jury's focus on the evidence. There was no reference in the material disclosed by the Crown to the defence that Dr Ellacott intended to state that, in her opinion, it was highly probable that sexual assault had occurred."

The fact that counsel was not on notice that Dr Ellacott was of the opinion that, given the history that RC gave and the injuries that she observed, it was highly probable that she had been sexually assaulted anally and vaginally, does not answer the leave issue. As I have noted, the question was objectionable. It was one that invited an inadmissible response. 41 In the appellant's submission the Court should grant leave since the prejudicial effect of Dr Ellacott's opinion being received upon the very question that the jury was to determine gave rise to a miscarriage of justice. This contention does not receive support from the terms of the affidavit of trial counsel. He does not suggest that he perceived Dr Ellacott's evidence to have caused irremediable prejudice to the appellant. It was counsel's view that the matter was best left without further attention being given to it. Had he believed it to have the powerful impact that is now contended that it did, it is to be expected that he would have applied to have the jury discharged. No application was made. There was no application that the evidence be withdrawn or for any direction to be given with respect to it. 42 In Papakosmas v R (1999) 196 CLR 297 at 310 McHugh J said: "There is no case for the grant of leave under r 4 unless the Court of Criminal Appeal is satisfied that the appellant has an arguable case that the trial judge has made an error of law or is satisfied that the appellant's conviction is otherwise a miscarriage of justice. Satisfying the Court that there is an arguable case is extremely difficult where the appellant has failed to object to evidence or failed to ask for a direction concerning evidence. In such cases, the trial judge has made no error of law because he or she has not been asked for a ruling. Consequently, an appeal can only succeed if the Court of Criminal Appeal is satisfied that the admission of the evidence or the failure to give the direction has caused a miscarriage of justice, proof of which lies on the appellant." 43 Notwithstanding trial counsel's statement in his affidavit that he did not fail to object to the evidence to achieve some tactical advantage, he nevertheless acknowledges that tactical considerations influenced his decision not take any point with respect to this evidence. 44 It seems to me that any harm done by the doctor's answer was likely to have been neutralised by the cross-examination that established that RC did not have any injury to her vagina or anus and the acknowledgement that it was possible that the intercourse had been consensual. Dr Ellacott's earlier opinion was one that was expressed to be given upon the basis of RC's account of what she said had happened to her.

45 I am not of the opinion that the trial miscarried by reason of the admission of this opinion by the doctor. I would refuse leave pursuant to r 4 to rely upon this ground 1.

Ground 2 The learned trial judge erred in his directions to the jury regarding the issue of lies told by the appellant during the interview with investigating police. 46 In evidence in chief the appellant admitted that his account to the police in the course of his interview with them on 1 February 2002 was untruthful. His counsel asked him: "Q. Why was it that you didn't tell the truth on 1 February when you did that record of interview? A. Because, afraid that my girlfriend would find out and she was pregnant and she would leave me." (T 19/2/03 183.9-12) 47 The appellant was cross-examined at some length on the topic of his lies to the police. The Crown Prosecutor raised with him the suggestion that he had only admitted to having had sexual intercourse with RC because he knew that the lie might be exposed as the result of DNA analysis (T 19/2/03 at 187). She returned to the topic of the lies told to the police later in the cross-examination obtaining the appellant's concession that his girlfriend had not been present when he had spoken to them. She went on to put these questions to the appellant: "Q. You were just being asked about a walk in the park weren't you? A. Yeah but I knew what he was getting at. Q. Because you'd been in there with RC and you'd raped her in there hadn't you? A. No, I didn't, no I didn't rape her. Q. That's why you lied about going into the park isn't it? A. We had consensual sex, sex." (T 19/2/03 at 204). 48 The Judge gave a direction consistent with Edwards v R (1993) 178 CLR 193. He said this: "In relation to the ERISP interview, she (the Crown Prosecutor) put to you that you would not accept any of it. It was suggested that the accused was shifty, looking all over the place, that his evidence was unsatisfactory in that he tended to play down any talk of a sexual nature, the circumstances in which they ended up in the park, he first of all said that he thought that he did not ejaculate and then later said that maybe he did, that he said he had told lies because he did not want to go to gaol and also because his girlfriend was pregnant and he thought she would dump him. In relation to the admitted lies of the accused, I have a further direction to give you. The accused in this case has admitted that he did tell lies and they were lies going to the issue as to whether he had had sexual intercourse or not. I have to say this to you by way of legal direction, that before you can take such an asserted lie into account as evidence of the accused's guilt you must be satisfied that it was in fact not only a lie but also a deliberate lie. If you are not so satisfied you cannot use it for this purpose. If, however, you are satisfied that it was deliberate lie then you must also be satisfied that the lie: (1) Relates to an issue that is material to the offence charged, and there is no doubt about that, (2) Reveals the knowledge of the offence or some aspect of it, and (3) Was told because the accused knew that the truth of the matter about which he had lied would implicate him in the offence charged or, put another way, because of a realisation of guilt and a fear of the truth. I emphasise that you must be satisfied that that is what was in his mind, that is, the guilt of the offence charged and not some other crime. There is an important proviso to that though and that is, you must remember that people do not always act rationally and that conduct of this sort, in other words, telling a lie, may sometimes be explained in other ways. There may be a reason for telling a lie apart from the realisation of guilt. For example, a lie may be told out of panic, to escape an unjust accusation, to protect some other person or to avoid a consequence unrelated to the offence. If you think that there is a reasonable possibility that the lie was told for such a reason then you cannot use it for this purpose. If, however, you are satisfied of the three matters to which I have referred then you are entitled to use that finding in aid of the other evidence in the Crown case as pointing to the accused's guilt. Standing by itself it could not prove guilt. The accused has stressed in his case that the very day that he gave the ERISP he immediately told Bernadette, his solicitor who is instructing in this case, that he had had sexual intercourse and there was no challenge made about that. The Crown could have asked questions throwing that into doubt but it was not suggested that he was telling lies about that. He also said that he told Jessica that night. By that time, of course, he had been charged or knew he was going to be charged and it is also suggested that he might have done that because he knew that the DNA evidence would implicate him, although he said he was not really familiar with DNA. He is a person of limited education, I would suggest, and that may well be the case, although, on the other hand, it could be valid. Just to give you an illustration of what I am talking about that lies do not necessarily mean that you have committed the offence, can I take you back to your school years when, out in the playground, you might have been in a situation, a crowd of children who were up to no good, and although you were not one of the ones up to no good, when the teacher came and caught the others that were up to no good, you, for example, denied that you were there or that you were connected in any way with it by your presence. Of course, once the teacher caught you out telling a lie saying that you were not there, even though you were not there doing anything wrong, he put two and two together and got four, or so he thought. But that is a simple illustration of somebody being innocent but thinking that others might think that he was guilty and telling a lie which got him into more trouble than he would have got into if he had told the truth from the start. So that is why the law is emphatic that, simply because an accused person tells a lie about their involvement, that is not an admission that they did it. You have to be satisfied of the matters that I have referred to, that it is a material matter, that it revealed the knowledge of the offence or an aspect of it and that it was told for the sole reason, beyond a reasonable doubt, that he was necessarily guilty. Mr Johnston says in this case that you could not use that because the lie was one that he has explained. Madam Crown finished up by submitting to you that he was a self-confessed liar, that you would conclude for yourself that there is nothing to support his evidence, you would reject it, but, nevertheless, you must remain satisfied beyond a reasonable doubt that there had been sexual intercourse, that she did not consent and that he knew in his own mind that she was not consenting." (SU 31-34) 49 At the conclusion of the summing up no application was made for the Judge to withdraw the direction on lies or for any re-direction on this topic. Again, the appellant requires leave pursuant to r 4 of the Criminal Appeal Rules to rely on this ground. 50 In written submissions the challenge on the direction on this topic was three-fold: (i) The Judge directed the jury that it was open to them to rely upon the appellant's lies together with other evidence as a basis for reasoning towards his guilt when the Crown had not relied upon the lies as evidencing his consciousness of guilt; (ii) the Judge did not identify those lies that could be relied upon as evidence of guilt as distinct from lies that may have affected the assessment of the appellant's credibility; (iii) having determined to give an Edwards direction on lies as evidence of consciousness of guilt the Judge had failed to adequately direct the jury as to the use that could be made of the appellant's lies in that this direction failed to differentiate between the capacity of the lies to evidence guilt and the relevance of lies to an assessment of the credibility of the appellant. 51 On the hearing of the appeal Mr Corish, who appeared for the appellant, confined his challenge to point (i). Mr Corish acknowledged that the Judge introduced his direction on lies by reference to the appellant's "admitted lies" and that in the context of the trial this was clearly a reference to the lies that he had admitted to having told the police in the interview when he denied having sexual relations with RC. 52 In Mr Corish's submission the vice of the Judge's decision to give an Edwards direction was that it left for the jury's consideration consciousness of guilt reasoning when the prosecutor had elected not to conduct the trial upon that basis. In her closing address the Crown Prosecutor limited her submissions as to the use to be made of the appellant's lies to the contention that he was a self-confessed liar whose evidence should be rejected. 53 A difficulty confronting the Judge was that in cross-examination the proposition had been squarely put to the appellant that he had lied to the police because he had raped RC. Although the Crown Prosecutor did not address the jury in terms of the appellant's consciousness of guilt as demonstrated by these lies, trial counsel plainly considered that the jury may reason in that way. He sought to deal with the matter in his closing address: "Now, firstly dealing with Mr Davis. You've heard two accounts from him, both today, in relation to what he says took place, the first in the record of interview and the second in court today where he gave evidence in the witness box and was cross-examined. He very quickly and frankly said to you in the witness box that he lied during the record of interview, and he gave you the reason why he told that lie. I think we need to look at that again and put that in some degree of context. The lie was told two days after the incident allegedly took place. The lie was told in circumstances where he'd been taken from his home by the police down to the police station. At that stage the police were cautious not to let his girlfriend who was pregnant know what was happening, why he was being taken down to the police station, and when he went into the police station and the accusations were put to him, that was the context where he lied. Now the nature of the lies are not particularly sophisticated, particularly when you take into account the fact that after the record of interview he was subjected to a DNA scraping which he consented to, and obviously if there was any genetic material that would very quickly link back to him. So if he had sat down and perhaps thought about it you might think that very quickly he would have realised that he'd be caught out quite short in the near future, and that perhaps again helps us to understand the nature of how that lie came about. He panicked, he didn't want his girlfriend to find out, he in that circumstances said things to try and avoid her finding out. And you might think that that's a pretty understandable reason for why someone might lie. … In relation to what he said in the record of interview, if you accept that there was a valid reason for what he said, a valid for what he said, despite the fact that it wasn't the truth I'd ask you to put that to one side to the extent that it doesn't assist you in your deliberations as to whether or not non-consensual sexual intercourse took place on that night, because the motive for telling that lie was to simply protect the girlfriend from finding out that anything happened at all, and that it doesn't at the end of the day assist us in understanding the truth of what happened on the night. … So the fact that he's changed his position on the same day again is not probative of anything in my submission to you in relation to his guilt or innocence, they were just the circumstances as they transpired on the day and the reasons why his motive to tell that lie changed." (T 19/2/03 17, 18 and 19)

54 It would have been preferable for the Judge to have raised with counsel the question of what, if any, direction should be given with respect to the appellant's admitted lies before the commencement of the summing up: R v Ray [2003] NSWCCA 227 per Wood CJ at CL at [98]. However, the risk that the jury would rely upon the lies as evidence that the appellant was guilty of the offence with which he was charged was in my view an obvious one. That the lies were deliberate was not in issue and that they related to a material issue in the trial could hardly be in doubt. There existed the real risk that the jury would reason that the appellant was guilty because he lied to the police without considering whether there was another explanation for telling these lies. 55 In Zoneff v R [2000] HCA 28; 200 CLR 234 Gleeson CJ, Gaudron, Gummow and Calinan JJ observed that there may be cases in which an Edwards direction should be given in order to avoid the risk of misunderstanding on the part of the jury notwithstanding that the prosecutor has not sought to rely on lies as evidence of consciousness of guilt (at 244, [16]); see, too, Dhanhoa v R [2003] HCA 40; 77 ALJR 1433 per Gleeson CJ and Hayne J at 1438, [34].

56 I consider that it was open to the Judge to give an Edwards direction in this case. The direction that his Honour gave was extensive and emphatic. He was not asked to withdraw it or for any redirection.

57 I would refuse leave under r 4 of the Criminal Appeal Rules to rely upon this ground. 58 For these reasons I would propose that the appeal be dismissed.

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