Regina v Mosegaard

Supreme Court of NSW|2014-11-24|Before: Harrison J, McClellan CJ

Judgment 1HIS HONOUR: Jens Mosegaard applies pursuant to s 78(1) of the Crimes (Appeal and Review) Act 2001 for an inquiry into his convictions for sexual assault. In my opinion, there is no doubt or question as to Mr Mosegaard's guilt, as to mitigating circumstances, or as to any part of the evidence in the case. There is in my view no basis for taking either of the courses for which s 79(1) (a) and (b) of the Act respectively provide. My reasons for coming to that conclusion are set out below.

Background 2Mr Mosegaard stood trial before Hock DCJ and a jury on an indictment containing three counts as follows: Count 1: On 8 March 2003 at Newtown in the State of New South Wales, did have sexual intercourse with ("AG") without her consent, knowing that she was not consenting to the sexual intercourse, and at the time of the commission of the offence, did maliciously inflict actual bodily harm on ("AG"). (s 61J(1) Crimes Act 1900) Count 2: On 8 March 2003 at Newtown in the State of New South Wales, did have sexual intercourse with ("AG") without her consent, knowing that she was not consenting to the sexual intercourse, and immediately after the time of the commission of the offence, did maliciously inflict actual bodily harm on ("AG"). (s 61J(1) Crimes Act 1900) Count 3: On 8 March 2003 at Newtown in the State of New South Wales, did have sexual intercourse with ("AG") without her consent, knowing that she was not consenting to the sexual intercourse." (s 61I of the Crimes Act 1900). 3Mr Mosegaard was acquitted of count one but convicted of counts two and three. On count 3 he was sentenced to a term of imprisonment of 9 years and 4 months, with a non-parole period of 7 years, to commence on 8 March 2003. That non-parole period expired on 7 March 2010. In respect of count two he was sentenced to a term of imprisonment of 11 years, with a non-parole period of 8 years, to commence on 8 March 2004. That non-parole period expired on 7 March 2012. 4The particulars of these counts upon which the Crown relied at trial were as follows: Count 1: That the appellant without consent forced his penis into the mouth of the complainant, at the time causing her actual bodily harm. The bodily harm was bruising to the complainant's upper arm. Count 2: That the appellant without consent put his penis into the mouth of the complainant, immediately after causing her actual bodily harm. The bodily harm was the injury to the complainant's lip. Count 3: That the appellant without consent had penile vaginal intercourse of the complainant and immediately before that caused her actual bodily harm. The bodily harm was injury to the complainant's thighs. 5Mr Mosegaard appealed to the Court of Criminal Appeal. That Court by majority dismissed the appeal: see Regina v Mosegaard [2005] NSWCCA 361. 6McClellan CJ at CL presided. His Honour recited the facts in some considerable detail at [8] - [58]. His Honour also set out in similar detail the version of the facts upon which Mr Mosegaard relied for the purposes of his appeal at [59] - [88]. I have had particular regard to these matters in considering the present application although, as they are now a matter of public record and permanently accessible on this Court's Caselaw website, it is unnecessary for present purposes to reproduce them here. 7No application was made to the High Court of Australia for special leave to appeal from the decision of the Court of Criminal Appeal. 8Mr Mosegaard's application for a review of his convictions specifies the following grounds: (1)Incontrovertible proof (of his innocence). (2)Police corruption involving - (a)Systematic tampering of witnesses; (b)Destruction of (crucial) CCTV footage; and (c)Blood sample tampering. (3)Collusion/incompetence of his legal counsel. (4)Judge(s) corruption/incompetence. 9In support of his application Mr Mosegaard has provided a comprehensive and detailed handwritten submission, complete with diagrams and other pertinent references. It will be necessary to refer to some of this material later in more detail.

The legislative scheme 10Mr Mosegaard's application falls to be considered under Part 7 of the Act. Sections 78 and 79 are important. They are relevantly as follows: "78 Applications to Supreme Court (1) An application for an inquiry into a conviction or sentence may be made to the Supreme Court by the convicted person or by another person on behalf of the convicted person. (2)... 79 Consideration of applications (1) After considering an application under section 78 or on its own motion: (a) the Supreme Court may direct that an inquiry be conducted by a judicial officer into the conviction or sentence, or (b) the Supreme Court may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912. (2) Action under subsection (1) may only be taken if it appears that there is a doubt or question as to the convicted person's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case. (3) The Supreme Court may refuse to consider or otherwise deal with an application. Without limiting the foregoing, the Supreme Court may refuse to consider or otherwise deal with an application if: (a) it appears that the matter: (i) has been fully dealt with in the proceedings giving rise to the conviction or sentence (or in any proceedings on appeal from the conviction or sentence), or (ii) has previously been dealt with under this Part or under the previous review provisions, or (iii) has been the subject of a right of appeal (or a right to apply for leave to appeal) by the convicted person but no such appeal or application has been made, or (iv) has been the subject of appeal proceedings commenced by or on behalf of the convicted person (including proceedings on an application for leave to appeal) where the appeal or application has been withdrawn or the proceedings have been allowed to lapse, and (b) the Supreme Court is not satisfied that there are special facts or special circumstances that justify the taking of further action. (3A) ... (4) Proceedings under this section are not judicial proceedings. However, the Supreme Court may consider any written submissions made by the Crown with respect to an application. (5) ... " 11The authorities establish that an inquiry into a conviction may only be conducted if it appears that there is doubt or question as to the convicted person's guilt, as to any mitigating circumstances or as to any part of the evidence in the case at the trial. This Court may also exercise a discretion to refuse to consider or otherwise deal with an application for review if it appears that "the matter" has been fully dealt with in any proceedings on appeal from the conviction, or previously under Part 7 or its predecessor. 12The relevant test remains that as explained by Hope JA in Varley v The Attorney-General in and for the State of New South Wales (1987) 8 NSWLR 30; (1987) 24 A Crim R 413 at 48 as follows: "To initiate an inquiry... a doubt must arise as to the guilt of the plaintiff. This doubt need not be shown to the satisfaction of the Governor or the Court to be well-founded; that is a matter for the inquiry. To adopt the language of Nagle CJ at CL in Varley v The Attorney-General of New South Wales (at 12), 'the section envisages the placing of any material before a Judge of the Supreme Court (Supreme Court Act 1970, s 40)... or, in a petition, before the Governor... 'which might cause him, for want of a better word 'unease' in allowing a conviction to stand''. The Court or Governor will then, upon this material, decide (in the case of the Governor presumably upon advice) whether the discretion to direct an inquiry which the section confers should be exercised or not. If an inquiry is directed, the question for consideration and report by the justice is, in the words of Lee J in his report on the conviction of Alexander McLeod-Lindsay (at 9) 'whether the doubt predicated is well-founded or not'."

Incontrovertible proof of innocence 13Mr Mosegaard contends that the sexual acts with which he was charged and for which he was convicted were physically impossible. It is clear from his submissions and the accompanying diagrams that he maintains that it was anatomically impossible for him, or by implication for anyone in his position, to have assaulted the complainant in accordance with that description. In particular, Mr Mosegaard maintains that it would have been impossible for him to have inserted his penis into the complainant's mouth whilst he was seated upon her chest with his knees restraining her upper arms. He further contends that the complainant's description of how he was alleged to have used his knees to hold down her thighs whilst simultaneously using his hands to hold her hands against her shoulders would not have permitted him to force his penis into her vagina. Mr Mosegaard also complains that it was not physically possible for him to have forced the complainant's mouth open by pulling her hair back. 14Mr Mosegaard did not raise the issue of physical impossibility either at his trial or on appeal. The issue on both occasions was relevantly whether or not the complainant had consented to the sexual acts in question. Written submissions proffered on behalf of Mr Mosegaard at the appeal expressly acknowledged that the accounts given by him and the complainant "were similar in terms of the physical outcome, in terms of sexual intercourse and injuries to the complainant". Those submissions also made it clear that the only live issue was that of consent. So much is apparent as well from what was said by the Chief Judge at [88] and [124] in the Court of Criminal Appeal. That was relevantly as follows: "[88] The appellant's case was that the sexual encounter was consensual in all respects, including the so-called 'rough sex' in all of its forms. ... [124] ... The appellant says the complainant consented to sexual activity involving acts of violence and degradation..." 15In the face of the way in which Mr Mosegaard conducted the case at trial and on appeal, and even with the benefit of his further detailed submissions on the first ground, it does not appear to me that there is any doubt or question as to his guilt, or as to any part of the evidence in the case concerned with the acts giving rise to the convictions. Without intending to limit the force of that conclusion, it also seems to me that the matter has been fully dealt with in the proceedings giving rise to the conviction and in the proceedings on appeal from that conviction as well. 16Mr Mosegaard did not ever contend at his trial or on appeal that any of the acts that constituted the sexual conduct complained of were physically impossible. As the Chief Judge observed in any event, Mr Mosegaard's detailed evidence given at the trial was for the most part consistent with the complainant's description of the same events. The point of difference between the complainant and Mr Mosegaard went to the issue of consent. This application is not accompanied by any attempt by Mr Mosegaard to resile from or alter his evidence at trial, which he adhered to on appeal, and which included an admission that consensual penile vaginal sexual intercourse had taken place. Mr Mosegaard's contentions now, that the sexual acts that constituted the offences upon which he was convicted were physically impossible to perform, are wholly inconsistent with the way in which his defence was conducted at trial and were never raised in the Court of Criminal Appeal. 17Moreover, even notwithstanding the above, the contentions advanced by Mr Mosegaard patently do not withstand scrutiny. He seeks to characterise the way in which the complainant described what happened to her upon an inflexible and overly literal interpretation or understanding of that description. It patently ignores any realistic appreciation or understanding of the events she describes. Mr Mosegaard's attempt to confine and refine the complainant's version of events to the point of physiological and anatomical detail is an obviously disingenuous attempt to cast doubt upon her evidence. Not only is it unsupported by any expert opinion, a fact that is not to be weighed against Mr Mosegaard in his current circumstances, but it flies in the face of common sense and the experiences of life. 18A simple example is sufficient. Mr Mosegaard contends that his penis could not have reached the complainant's mouth if he was kneeling upon her upper arms. He relies in this respect upon the description contained in paragraph 23 of the complainant's statement as follows: "Jens pushed me down onto his bed. The bed was partly made up but the sheets were all scrunched up. He held me down with both of my arms up around my head. He said, 'I just want to have sex with you and then you can go.' I said, 'Leave me alone. I don't want to do this.' Jens sat on top of me and I struggled against him. He put one knee on each of my upper arms and held them down against the bed. I could barely move. He started to force his penis into my mouth but I clenched my teeth together and closed my mouth. I moved my head around quickly so that he could not get at my mouth. He put his hand over my mouth and nose and held it there. I could not breathe at all. I tried to scream but could make no noise. It was almost until the point of suffocation and then he took his hand off my mouth. I gasped for breath by opening my mouth. When I opened it, he forced his penis into my mouth. I started to cry and I said, 'No.' and 'Let go of me.'" 19A moment's consideration of this description makes it clear that it does not confine Mr Mosegaard to a kneeling position with his back perpendicular to the complainant. That is the position depicted in Mr Mosegaard's hand drawn diagrams contained in his submissions. However, it is obviously inherent in what the complainant describes that her assailant was bending forward towards her. The complainant's clearly adventitious failure to refer to that fact in terms is an unexceptional omission in the circumstances. It is necessarily inherent and implicit in what she said took place that her description did not recite every physical position or motion that was involved. Mr Mosegaard's self-serving drawing of himself does not take account of this simple but obvious fact. 20In short, nothing that the complainant described is physically impossible. Mr Mosegaard's application is unassisted by his contentions that it was.

Police corruption 21Mr Mosegaard raises a series of allegations concerning perceived failings and corrupt actions on the part of certain named police officers who were concerned with the investigation of the complaints of sexual assault made against him. He alleges that Constable Gorman, who was the officer in charge of the police investigation, had repeatedly told a number of witnesses that a serious assault had taken place and that this contaminated their evidence. This led to "the innocent sound of children playing" corruptly becoming "sounds of a woman 'they knew' was being assaulted". 22As the Chief Judge observed in the Court of Criminal Appeal, the complainant's evidence was supported by several witnesses. His Honour referred to them at some length. Two of the witnesses gave evidence that what they heard sounded childlike, but all other witnesses gave evidence to the effect that what they heard sounded like a woman or girl in distress. The matter was raised by defence counsel at the trial and was clearly before the jury for consideration. 23Relevantly for present purposes, this issue was not raised at trial or on appeal. That is not an absolute impediment to it being raised now, but it influences the force of the contentions about it to a considerable extent. Mr Mosegaard did not allege that the evidence of any witness had been contaminated or tampered with by Constable Gorman. This is apparent from her cross-examination by defence counsel at the trial. It was never suggested to her that she approached or otherwise interfered with the evidence of any witness in the Crown case. She was asked about her meetings with the complainant but was not challenged about whether or not the complainant's evidence was discussed. 24The force of Mr Mosegaard's contentions in the present context must also be considered in the light of the issues at his trial. The pivotal issue was whether or not the complainant consented to the sexual acts that occurred. None of the witnesses concerned was an eye witness to these events. 25The references to alleged police corruption are of recent origin. They are no more than latter day unsupported dogmatic assertions. They do not give rise to any relevant doubt or question. 26With respect to the alleged destruction of CCTV footage, Mr Mosegaard contends that what was shown supports the suggestion that the complainant propositioned him inside the Crown Hotel prior to the alleged assaults. The CCTV footage in question is said to record events from within the hotel early on the morning of 8 March 2003, prior to the complainant and Mr Mosegaard proceeding to their shared accommodation in Newtown where the offences took place. The absence of CCTV footage from inside the hotel was neither a specific ground of appeal nor a particular of an allegation of impropriety raised against Constable Gorman at the trial or on appeal. The complainant denied at the trial under cross-examination that she had been flirting with Mr Mosegaard. He gave evidence that she did. The issue was therefore squarely before the jury at the trial. 27The evidence may well have been relevant at the trial upon the issue of consent. However, whatever its probative force or significance might then have been, the allegation that I am asked to consider is that the footage was destroyed as the result of police corruption. There is no evidence of any sort that supports that allegation. Once again Mr Mosegaard asserts it as a fact but is unable to point to any associated facts or circumstances that lend support to it. 28The same can be said with respect to Mr Mosegaard's concerns regarding alleged sample tampering. Mr Mosegaard alleges that Constable Gorman tampered with blood and urine samples but provides no material to substantiate the allegation. It is also unclear to precisely which forensic issue the allegation is directed. Constable Gorman was not cross-examined about this at the trial, consent being the point of difference between the complainant and Mr Mosegaard. I am unable to discern the existence of any doubt or question as to Mr Mosegaard's guilt that is or appears to be based upon this allegation. 29Nor is the issue advanced favourably to Mr Mosegaard by his associated complaint that he did not receive a copy of the urinalysis report. The defence was served with a certificate issued by the Department of Analytical Laboratories dated 24 February 2004 that was ultimately tendered by the Crown at the trial. No controversy concerning that certificate developed at that time.

Collusion of lawyers 30Mr Mosegaard makes three separate complaints against his former legal representatives. The first concerns a Legal Aid solicitor who withdrew from the case approximately three months before the trial. The second concerns the barrister who appeared at the trial and who is alleged to have disregarded Mr Mosegaard's instructions in several nominated respects. The third is concerned with the Senior Public Defender who appeared for Mr Mosegaard in the appeal. Mr Mosegaard asserts that his senior counsel did not follow his instructions and that this resulted in a deliberate perversion of the course of justice. 31The first complaint is that the Legal Aid lawyer did not obtain the "crucial" CCTV footage from the Crown Hotel. This has been referred to earlier. The evidence of Constable Gorman was to the effect that the film had been requested but that it was not available because of technical difficulties. It is however difficult to understand the nature of Mr Mosegaard's concerns when regard is paid to the fact that the lawyer concerned ceased to be involved with his case long before the trial on the one hand or, for reasons similar to those already considered, the forensic significance of the lost film could only have been marginal on the other hand. 32The material available to me for the purposes of this application does not include the whole of the trial transcript. It is limited only to those portions that Mr Mosegaard has supplied in support of his submissions. None touches the conduct of counsel. It is however otherwise clear that no ground of appeal in the Court of Criminal Appeal alleged either incompetence, or what Mr Mosegaard would wish now to characterise as disobedience, of counsel. If the complaints that Mr Mosegaard now wishes to propound are to be given any favourable attention on this application it could only be if they were identified by reference to specific points in the transcript and were accompanied by an explanation of why they did not emerge as matters of significance on appeal. 33The Senior Public Defender is also criticised by Mr Mosegaard for failing to argue as a ground of appeal that the acts of sexual conduct with which he was charged were physically impossible and that he was the subject of police corruption. For the same reasons that these issues are unconvincing as matters in themselves, they are also insufficient to raise a doubt or question concerning the convictions as part of a collateral attack on a legal representative. It seems highly likely that experienced counsel would in any event have been professionally disinclined to propound any frail argument about physical impossibility as being inimical to Mr Mosegaard's interests. I am however not called upon in this application to offer an opinion on that issue.

Judicial incompetence 34I have had particular regard to Mr Mosegaard's submissions in this category of complaint. None of the allegations is supported by any factual material or specificity. Mr Mosegaard's submissions commence with the bald assertion that "generally all of the judges (bail, trial, appeal etc.) failed to do anything about an obvious miscarriage of justice". He thereafter proceeds only to criticise the trial judge, despite the width of his opening remarks. 35When examined it clearly emerges that any complaints that Mr Mosegaard now expounds concerning her Honour were matters that were capable of being formulated as points or grounds of appeal in the Court of Criminal Appeal. (In referring to them in that context I am not to be taken as expressing a view that any of Mr Mosegaard's complaints could have been formulated as, or amounted to, meritorious grounds of appeal). 36If Mr Mosegaard had complaints about the scope or content of the trial judge's directions, evidentiary rulings or her summing up, it was open to him to propound them on appeal. He failed to do so. I am not satisfied that any doubt or question attends Mr Mosegaard's convictions by reason of any complaint he appears to be making about the trial judge or any other (unspecified) judicial officer.

Conclusions 37In summary, none of the matters propounded by Mr Mosegaard in this application provides any basis to doubt or to question his guilt or his convictions. He has identified no mitigating circumstances. This application should be dismissed.

Order 38The application of Jens Grandt Mosegaard made pursuant to s 78(1) of the Crimes (Appeal and Review) Act 2001 for an inquiry into his convictions for sexual assault is dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 November 2014

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