REGINA v. LAWLER [1999] NSWCCA 17

GREG JAMES, J: 1 The appellant Andrew Ross Lawler stood trial before Judge Shillington, QC. at Queanbeyan District Court on 3 August 1998 on one count under s.61I of the Crimes Act 1900, that is, a charge that he, on 25 December 1996, at Yass did have sexual intercourse with a woman named in that indictment without her consent knowing that she was not consenting thereto. The appellant had pleaded not guilty. 2 His Honour, at the conclusion of the trial, returned a verdict of guilty. 3 On 23 October 1998, the appellant was sentenced to four years penal servitude comprising a minimum term of 18 months and an additional term of two years and six months. 4 By notice of appeal dated 4 November 1998 signed by the appellant's barrister, the appellant launched an appeal against conviction only contending that his Honour had erred in law concerning the lack of consent. 5 On 12 February 1999, by letter, notice was given of grounds of appeal setting out some 10 grounds, ground one of which complained that his Honour erred in finding there was no consent by the complainant. The balance of the grounds are as follows:- "2. His Honour misdirected himself and was significantly influenced in his decision regarding the 'hysterical' nature of the complainant. 3. His Honour misdirected himself when he referred to the evidence of Miss Wall. 4. His Honour exculpated the complainant's evidence re lack of complaint by referring to her 'hysterical' nature in an unfair fashion favourable only to the Crown which was not available on the evidence. 5. There is a perceived personal bias or prejudice by his Honour in favour of the complainant regarding the evidence of menstruation. 6. His Honour failed to adequately address the evidence of intoxication of the complainant. 7. His Honour placed an unfair/moral inference on evidence that Mr. Lawler was unaware which girl was in the room. 8. His Honour failed to consider on a Jones v. Dunkell factor why a number of Crown witnesses were not called to give evidence. 9. His Honour failed to take into account the possibilities of the complainant's evidence being tainted by Ms. Fitzgerald. 10. The verdict was in all the circumstances unsafe and unsatisfactory." 6 In support of the appeal, we have been provided with written submissions on behalf of the appellant providing the argument in support of the various grounds. The last ground, pleaded as it is, notwithstanding the decision of the High Court in Fleming v. The Queen [1998] HCA 68; (1998) 158 ALR 379; (1998) 73 ALJR 1 and that of this court in Regina v. Maxwell (unreported 23 December 1998) does not, in the light of the written submissions, raise any mere failure, expressly, to enunciate in the judgment any particular matter but is directed to the effect of the cumulative effect of the other grounds, all of which, on analysis, seek to highlight particular matters in evidence as the focus of attacks. 7 Although there is limited reference in the papers to a belief on the appellant's part in the existence of consent (his Honour found against such belief), the trial was conducted and the submissions to this court postulated upon the basis that there was no issue in controversy at the trial except that of consent. Thus the complainant's credibility, or truthfulness and reliability when assessed in the light of all the evidence, was critical. His Honour was plainly alive to this. 8 No issue arises in this case to examine the applicability of any legal expansion of the concept of lack of consent as might have been affected by s.61R since what is referred to in this case is an alleged express consent by the appellant and a lack of it by the prosecution. The defence asserted a positive consent. The prosecution asserted a complete absence of consent and a denial of consent was given in evidence by the complainant. Indeed the prosecution case accepted by his Honour and based upon matters expressed in evidence by the complainant was that there were circumstances of significance to her which were reasons why she would not have consented. There was additional, circumstantial evidence, particularly her demeanour tending to confirm her denial of consent. 9 Shortly, his Honour found the following and I set out the passage in his Honour's reasons. Since an order for suppression had been made, I delete the name of the complainant where appearing in that passage:- "The facts are that [the complainant] and the accused were among a group of young people who attended among other places the Australia Hotel at Yass on Christmas Eve and the early hours of the morning of Christmas Day 1996. The hotel was open until about 3.00 am and the group left either at closing time or some of them at some earlier stage. The complainant occupied a flat which was near the hotel in Comur Street, Yass. She shared it with two girls, Christie Blundell and Kelly Wall. The three occupants of the flat apparently went back, probably a little earlier than a group of other young people who arrived. Those other young people included the accused and among others Jason Yates, a friend of the accused. [The complainant's] account is that she was very drunk, she had been drinking for a considerable time during the night and went straight to her room. She says that she fell on her bed fully clothed and was lying across the bed. Her friend, Jennifer McGann, came in and sat down for a short time in a seat in the room and Christie Blundell one of the other flatmates came in also. It was the evidence of both the girls that they left and at that stage, the complainant appeared to be asleep. The lights were turned off and the doors closed. The next event in the recollection of the complainant according to her account, was that she was aware of someone in the room on the bed having intercourse with her. She said that her jeans and pants were partly down and it is of significance at the time she said, that she was having her periods and that she had a pad in her pants. She was aware next, of the lights being turned on and hearing male voices. The lights were then turned off. She said that the person who was on the bed appeared to be again attempting to have vaginal intercourse with her. She said that she struggled, kicked and called out but at the time she was lying - as she had been earlier - on her stomach. The room was still in darkness. She said that the males who were in the room apparently left, she pulled her pants up and then proceeded to leave the room in an hysterical state going towards the bathroom. She said that she passed the loungeroom, seeing the accused and Jason Yates in that room, looked at them and said, 'dirty bastards, what were you doing to me in the room, what did you do to me?'. She said that at no time did she consent to any sexual relations with the person in the room, she spoke to other flatmates in the flat, she was described by those other people as being in an hysterical condition. It is certainly true that she made no statement that she had intercourse with a male in the room but that is a fact which is not in any event in dispute. It must also be borne in mind that at the time, she was quite hysterical. I accepted that was the situation, one of the witnesses said that she was hyperventilating at one stage. She asked to have her father called and shortly afterwards as a result of Christie Blundell ringing the parents' home, they came and took her off." 10 His Honour based his decision on those findings:- "My conclusion is that I am satisfied beyond reasonable doubt that the account given as to what happened in the bedroom by the complainant was a truthful one. I am satisfied that she was certainly deeply asleep when the two girls left the room as I have already outlined, I bear in mind that the accused said that he was not aware of who was in the room, he claims nevertheless that the girl consented to have intercourse with him in clear terms yet quite clearly again she violently objected very shortly afterwards and on the account by the accused for no apparent reason." As I have said, I am satisfied beyond reasonable doubt that there was an act of sexual intercourse as outlined. I am satisfied that there was no consent by [the complainant], certainly not in terms of words or by implication, I bear in mind that the evidence of [the complainant] is that she was having her periods at the time. I am satisfied that when intercourse commenced, that the girl was asleep and that the accused knew that to be the situation and for that reason that he must have realised that she was not consenting and I am satisfied that she did not consent. For these reasons I conclude that the elements of the charge have been made out, I therefore return a verdict of guilty on the charge on the indictment." 11 His Honour specifically referred to the absence of a complaint particularly specifying non-consensual intercourse not only here but later in his judgment when reviewing the evidence of other persons present in the flat who would have observed the complainant's demeanour when she rushed from the bedroom. 12 His Honour found the appellant's account to be as follows (again, dealing with the complainant's name in the fashion I have already described):- "The accused's account which was given in evidence before me and also was substantially in accordance with the interview between he and the arresting police, was that on the night in question having been to various hotels in Yass and having consumed between 10 and 15 schooners of beer and some spirits but nevertheless being aware of what he was doing he says, that he went to the flat with others and apparently waited outside for a little while and then the group went up into the flat itself which is up on the first level. He says that he was in the loungeroom when Jason Yates and another young man Aaron Symons he said that he felt tired, he had a considerable amount to drink and decided that he would go home. He said that he then got up and went into the corridor outside the loungeroom where he and the other two young men were and there he saw Aaron Symons, he pointed towards the door in which it turned out [the complainant] was at that time. He said he did not know whose room it was, he had been to the house on previous occasions and at least on one occasion had slept overnight but he did not believe it was that particular room. He said he entered the room, it was then dark, he was aware that there was a girl lying on the bed, he said that that girl in fact was lying parallel to the bed itself and not across the bed and that he then lay down on the bed and shortly afterwards, Jason Yates came in and lay on the floor. He said that he was aware of the girl, he did not know who she was but assumed that it was one of the occupants of the flat, put her arm across his chest. He then reacted and asked whether she would have sex with him. He still did not know, he said, who it was. The girl asked who he was and he said 'Drew', he said he asked again if she would have sex with him and that she said 'yes'. He then, he said, her having undone the top button of her jeans and she having to pull her clothing down, commenced to have sexual intercourse with her. He said that she suddenly started to scream and he became scared and apprehensive and then left the room and went to the loungeroom and that Yates followed shortly afterwards. He had no recollection of the girl who passed and went down to the toilet saying words to the effect of dirty bastards or dirty bastard. He said that he believed that the girl had consented to have intercourse with him because he had asked her on two occasions and she had affirmatively said yes and that therefore she was having consentual (sic) intercourse and that he therefore also believed that she was consenting to what happened. He said that he spoke to someone when he was in the loungeroom after the two men had left and girl's bedroom, that would be either being Kelly or Christie, 'that nothing happened that she did not want to happen'." 13 His Honour continued:- "As I have said, when the accused was interviewed by Constable O'Dea - Detective O'Dea as he then was and Constable Olsen, he gave an account which was substantially in accordance with the evidence which he gave here today." 14 His Honour specifically gave the appellant the benefit of good character but rejected his evidence. 15 His Honour's findings of fact and his reasoning are challenged but this is not an appeal by way of rehearing. Regina v. Kurtic (1996) 85 A. Crim. R. 57; nor has leave been sought to appeal on fact: Regina v. Ion (1996) 89 A. Crim. R. 81. To paraphrase the remark made in Regina v. Cable (1947) 47 SR (NSW) 183 at 185, s.6 of the Criminal Appeal Act (1912) is "not intended to substitute for trial by [one judge] who [has] seen and heard the witnesses, trial by three judges who have not". The grounds of appeal appear to be drafted from a perspective which fails to distinguish between his Honour's role as fact finder and his role as judge of the law and which fails to give proper regard to the role of this court and the requirements of s.5 of the Criminal Appeal Act. 16 Questions of credibility are peculiarly for the primary tribunal of fact. They are rarely open to review in such an appeal as this: Chidiac v. The Queen (1991) 171 CLR 432; M v. The Queen (1994) 181 CLR 487. 17 In the absence of some such matter as would cast doubt on the reasonableness of the verdict (it was plainly supported by the evidence), as would show error or law or otherwise raise a possible miscarriage of justice, the verdict must stand: Fleming (supra) and Maxwell (supra). 18 This said, notwithstanding that certain of the grounds appear at most to raise questions of fact something should be said about each of them particularly since one of the submissions as to the safety of the conviction is concerned with the cumulative effect of other grounds. 19 I shall defer for the moment the examination of the matters raised by Grounds 1 and 10 since both raise the ultimate issue in the circumstances of this case, ie. the question of consent, and since the other grounds to an extent bear on them. 20 Grounds 2 and 4 complain that his Honour impermissibly deprived, what was asserted to be the unexplained absence of relevant complaint, of its significance for the complainant's credibility when his Honour noted reasons why the complainant may not have so complained thus providing a basis that her credibility not be for that reason adversely affected. His Honour expressly referred to the lack of complaint. The matter he referred to as a possible explanation and the significance of that explanation were matters appropriately considered by the tribunal of fact: see s.405B of the Crimes Act 1900; Regina v. Murray (1987) 11 NSWLR 12; Crofts v. The Queen (1996) 186 CLR 427; Regina v. Lemura (CCA, unreported 18 December 1998). 21 What is complained of is not a misdirection of law but that his Honour as fact finder accepted evidence and gave it weight in accepting the complainant's account. There was clearly evidence to support his Honour's finding and that finding was not unreasonable. These grounds should be rejected. 22 Ground 3 raises a matter of fact from the evidence of one of the minor prosecution witnesses. His Honour's finding complained of is not unsupported by the evidence or unreasonable and could only have played at most a minor part in his final conclusion. His Honour's reference to the matter indicates he was alive to the change in evidence which was, if anything, to the benefit of the appellant. This ground should be rejected. 23 As to Ground 5, there is no evidence of any such bias. The tests are reviewed in Gibson v O'Keefe (Einstein, J., unreported 2 June 1998); Rogers v. Wentworth, (Handley JA., unreported 9 October 1998); Maxwell (supra), applying Webb & Hayes v. The Queen (1993-94) 181 CLR 41. 24 No reasonable apprehension of bias or prejudice could be entertained on such a basis. All his Honour did was to enunciate a not improbable basis given by the complainant to support her assertion that she would not have consented to intercourse at that time. His Honour was noting that she regarded the matter, personal to her, as significant in that context and that there was evidence of the relevant facts. 25 Similarly, there was no basis for Ground 7. His Honour was plainly entitled to have regard to a matter indicating the somewhat cavalier approach by the appellant to the identity of a sexual partner. Such was relevant to the defence contention of a specific express invitation to sexual intercourse. 26 I wish to add to the arguments advanced on these last two grounds as to his Honour's observations in his judgment, so far as they are said to indicate some improper influence or bias in his Honour rejecting the submissions of the appellant or otherwise indicating a view of the evidence adverse to the appellant were entirely inappropriate. In particular the reliance on those observations as inappropriate judicial comment tending to overbear the fact finding tribunal; Regina v. D (1997) 68 SASR 571 and Regina v. Machin (1996) 68 SASR 536, was completely misplaced. His Honour was the fact finding tribunal and was exposing his own reasons. The exposure of those reasons should not have attracted the attack on bias or prejudice grounds as made here. There was no legal ground for challenge to that process. 27 There is nothing whatsoever to support the contention advanced in Ground 6. The submissions concede his Honour's specific reference to intoxication. Insofar as this may have gone to a lack of memory by the complainant of a given consent and thus may have detracted from the credibility of her denial of having consented, this matter was plainly before his Honour as fact finder. 28 Grounds 8 and 9 raise nothing but vague speculation. His Honour referred to the absent witnesses. The submission put to him by defence counsel raised the matter in the context that explanations had been given for the absence of some of the witnesses. The remaining witnesses would seem only to be relevant to complaint. Defence counsel had the benefit of the submission that the evidence of the witnesses whose absence was unexplained would not assist the Crown. The lack of complaint to all, not merely the parents, was clearly before his Honour and noted by him. In the case of the witness Fitzgerald, by reason of her absence counsel was able to raise unrebutted and unqualified a suggestion that she assisted the complainant to attend the police and complained to them for her. On this it was sought to build a conclusion that somehow that meant that all the evidence of the complainant was in some unexpressed, unreasoned fashion, tainted. Such a suggestion has no reasonable basis. 29 The "unsafe and unsatisfactory" ground, as it was once referred to (see Fleming (supra)), asserted as a basis for acquittal by reason of the contention the jury should have acquitted, requires this court to make its own independent assessment of the evidence and in particular to have regard to any defects or inconsistency. I refer to the passages in the Crown submissions which adequately summarise the position:- "64. The test to be applied by this court in approaching a ground such as this was set out in the majority decision of the High Court in M. v. The Queen (1994) 181 CLR 487 at 493 in the following terms:- '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. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.' (vid. Also Jones v. The Queen (1997) 72 ALJR 478 at 85). 65. The test was also considered in Regina v. McKnoulty (1995) 77 A. Crim. R. 333 at 339 per Hunt, CJ. At CL:- 'It is also important to emphasise that the High court in M has not stated that the mere existence of discrepancies or inconsistencies in the evidence is sufficient to lead to the verdict being held to be unsafe or unsatisfactory. If they exist, they must be of such a nature as to persuade this court that there is a 'significant possibility that an innocent person has been convicted'.' ... 69. The same test is applicable to a judge sitting alone pursuant to s.32(1) of the Criminal Procedure Act: R. v. Kurtic (1996) 85 A. Crim. R. 57 at 60." 30 Turning then to the grounds which directly raise the real, indeed almost the only issue of the trial. As to Ground 1, it is submitted that the appellant gave evidence directly claiming express consent and that was the only acceptable evidence on the topic because, the complainant in cross-examination, when various propositions foreshadowing the evidence given by the appellant were put to her, answered in terms denying any memory of such. 31 It is submitted that these answers should be understood as meaning that she conceded she could not dispute the relevant occurrence because she had no or insufficient memory. In this regard, her admitted intoxication is also relied upon to support such a reading. I do not accept such an interpretation. I do not see such a reading of the evidence does justice to her replies. I would read them as denials of the assertions. I would not consider it unreasonable of the trial judge to accept the answers as confirming the complainant's account in chief or at the least not detracting from it. I consider there was direct evidence from her and both from her and from others, powerful circumstantial evidence of lack of consent such as entitled the trial judge reasonably to reject the appellant's contention. 32 Having assessed the whole of the evidence and taking into account the submissions put on this and on the other grounds, I do not see any matter in the evidence dealing directly or remotely with the issue of consent to cause me to have a doubt, ie. to apprehend an innocent person might have been convicted or to conceive, putting it another way, that his Honour should have had a reasonable doubt. I see no basis to review his Honour's finding on this issue. 33 Therefore I would also reject Grounds 1 and 10. 34 I would propose that the appeal be dismissed. 35 GROVE, J: I agree with Justice Greg James and the orders which he proposes for the reasons which he has given. 36 DUNFORD, J: I also agree. 37 GROVE, J: The order of the court will therefore be as proposed by Justice Greg James.

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