Regina v RCC

Regina v RCC - [2002] NSWCCA 347 - NSWCCA 2002 case summary — Zoe

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The Facts for the Several Offences 18 The appellant and the complainant in counts 1 and 3 - 6, a casually employed nurse, MJS, had lived together in a de facto relationship since August 1998. The complainant's daughters, CS (the alleged victim in count 2) and JL were also living with the couple. They were aged three and seven respectively. 19 Count one concerned events which were alleged to have occurred on 21 March 1999, following the return of the appellant and MJS from cutting wood together. MJS alleged that the appellant was drunk and pushed her away from him following an altercation between them, as a result of which she hit her head against a cupboard door, which caused a shooting sharp pain to her head and a burst blood vessel in her right eye. 20 MJS attended Coonabarabran Hospital on 24 March 1999, as a result of the injury, and was attended by Dr Ianuzzi, whom she told the injury was caused by her sneezing. Dr Ianuzzi observed a subconjunctival haemorrhage of the right eye. On 26 March 1999, MJS attended Dr Devine for review of the injury, as she was experiencing bad headaches. She repeated to Dr Devine that the injury was not caused by a blow or injury to the head. 21 In evidence Dr Devine stated that two typical causes of such an injury are straining, such as a woman pushing in labour or a severe cough and external pressure usually sustained through a sport injury or through an assault. He said it was possible, but unlikely, that such an injury could be caused by a blow to the back of the head. 22 On about 23 March 1999, MJS told a colleague, Leanne Roberts who had observed the bloodshot eye, that the injury was the result of her sneezing. In cross-examination in the trial, MJS asserted that she had told Roberts that the appellant caused the injury. 23 MJS reported the first assault to the Police on 20 April 2000, the complaint being made in a statement to a Det Hughes. 24 The second count involved an allegation of assault on MJS's daughter. On 11 June 1999, the appellant and MJS were visiting the appellant's parents where MJS's daughter, CS, was being minded by the appellant's parents. MJS sat on the lounge watching television whilst waiting for the appellant to finish his beer, so that they could go home. Whilst there, an altercation broke out between MJS and the appellant concerning her daughter's behaviour. The appellant swore at CS and when MJS endeavoured to excuse the child the appellant swore at her as well. 25 As a result of CS's whinging, the appellant hit CS on the back with a game board with which the child had been playing. The appellant was then alleged to have picked the child up, kicked her on the tailbone and thrown her by the arm approximately three to four metres into the corner of the kitchen area. The incident was alleged to have occurred in the presence of the appellant's mother, Doreen Clarke, who in evidence denied that she witnessed any of these events. She was sitting in the lounge room at the time of this alleged incident. 26 Immediately following this, MJS told the appellant that their relationship was over and left the house with her two children. The appellant's mother requested that MJS wait as the appellant was getting the children's bags out of his utility. The appellant then sat down in the car alongside MJS who demanded that he get out. 27 The appellant finally left the car, slammed the door, kicked the left panel of the car, went around to the front of the car and kicked the right headlight. The appellant's father took the appellant back into the house. 28 MJS did not seek medical assistance for her daughter as a result of this incident, even though she did observe bruising over the child's coccyx and red marks on her upper arm, giving in evidence as a reason that she was frightened of the appellant as he had threatened both herself and her children. The incident was not reported to the police until 10 February 2000. 29 The third, fourth and fifth counts related to events alleged to have occurred on 14 June 1999. The conduct charged in the third count occurred when the appellant let himself into MJS's house. On meeting MJS in the lounge room she demanded that he return her keys. The appellant allegedly responded by grabbing MJS, pinning her to the floor. It was alleged that he then began to fondle and suck her breasts, whilst she was struggling to get away. He allegedly sat on her face and attempted to place his erect penis in her mouth. 30 The appellant then got off MJS after she threatened to bite him and proceeded to put his hand down her pants, pushing two fingers into her vagina. This was count four. 31 The conduct charged in the fifth count occurred when the appellant then allegedly forced his penis into MJS's vagina. MJS was constantly struggling during this act and managed to push the appellant off her and again demanded that the appellant return her keys. 32 MJS reported the sexual assault by the appellant to the police in a statement made by her on 10 February 2000, in which statement MJS only complained of the conduct stated in count four, that is, the placing of his hand down her pants and the forcing of his fingers into her vagina. There was no complaint made to any authority in relation to the full conduct complained of by MJS in counts three and five, until the day the matter came to trial on 16 October 2000. 33 On 9 February 2000, when making inquiries about obtaining a restraining order, MJS had spoken to a Detective Fraser alluding generally to some acts of violence but never mentioned any acts of sexual assault by the appellant on her. 34 It was count six on which the jury found the appellant guilty. The facts of this incident occurred shortly after the facts giving rise to counts 3, 4 and 5 and after MJS fixed her clothing when she said to the appellant that he should give her the keys and get out. He picked up a broken piece of green rope from the floor near the front door and wrapped it around MJS's neck. He pulled it tight and said: "It would be easy to kill you, only take one pull of this rope". 35 MJS said that at the time she could not breathe and was shaking and felt she was going to faint when she was released. MJS sat on the bed in her bedroom following the incident, when the appellant entered the room annoyed and agitated that MJS had walked away from him. Following an exchange of hostile words he punched her in the eye, which caused her to fall back onto the bed. 36 MJS went to the bathroom to put a cold compress onto her eye and was followed by the appellant who pushed and punched her repeatedly in the chest area. This caused her to fall backwards into the bathtub, which caused her to hit her head on the wall and on the edge of the bathtub and her arms and legs to hit the edge of the bathtub, causing pain to the back of her calf muscle and to her left elbow and the back of her right arm. 37 MJS told the Court that the bruises she had received went very black and after a week went yellow and then went away. She said that the backs of her legs were swollen and then went black and yellow. The bruises to her legs were an inch in thickness across her leg and lower towards her ankle she had a bruise that wasn't quite an inch in width. She also had bruising to both her thighs leaving marks which were about the size of tennis balls, and bruises where the appellants knees dug into her legs, the last of the bruises lasting two weeks, being those on the backs of her legs and her arms. Relationship Evidence 38 In the trial of the six counts, relationship evidence was admitted as to other events on 14 June 1999, involving the appellant smashing the telephone and answering machine, kicking MJS and holding her down with his foot. The appellant also came towards MJS with a knife. The appellant had also kicked in the back door. The appellant gave the knife to his mother who subsequently arrived. The appellant's mother pleaded with MJS not to call the police. 39 The witness Roberts gave evidence that when she went to MJS's home, at about that time, the back door had been pushed in and smashed. 40 Evidence was also admitted that the appellant came to the hairdresser's shop were MJS had an appointment. She then walked out to the front of the shop to speak to him to avoid a confrontation in the shop. The appellant said to her that he was going to go home and smash the house. MJS rang the appellant's mother but the call was taken by his sister-in-law who said that she would take care of it and that MJS was not to bring the police into it. 41 MJS gave evidence that the appellant would knock on the door of her home and would also drive past and yell out, asking MJS to take the appellant back and saying that he wouldn't do it again. He did not come back into the house. 42 In August 1999 MJS commenced civil proceedings in the Local Court against the appellant concerning the damage caused by the appellant to MJS's car during the incident which had occurred on 11 June 1999.

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The Appellant's Case 49 The incident concerning the board game was on 11 June 1999 and occurred when MJS was sitting on the lounge, and the appellant asked MJS about what was happening concerning dinner as the two children were cranky and hungry. The appellant said that MJS had said that she had eaten at work and that she did not want to buy dinner and the girls would eat when they arrived at home. 50 The appellant's evidence was that MJS became cranky and walked out to the backdoor with the two girls, putting the children in the back seat while the appellant was leaning against the left hand guard of the car, and that MJS told him she was going home and that she had "the shits". The appellant said that MJS walked passed him and pushed the appellant, and that he fell onto the car causing a little dent, and that that night he stayed at his parents' place. The appellant said that while MJS was present at his parents' home, the children had been fighting and crying over the board game, and that he had taken it away from them and that the girls had cried a little. 51 The appellant's evidence was that, the following day Saturday 12 June 1999, when he had attended MJS's house to get his clothes, he had knocked on the door and that MJS had given him work clothes that he had asked for and that he and his father left, having been there for five minutes and said that he did not return to MJS's house at any time later that day. He did, in cross-examination agree that he had spoken about the dent in the car and that he had said that it could be fixed. 52 The appellant's evidence was that on the Wednesday the following week, that is five days after 11 June 1999, he returned to the premises of MJS to pick up a television set during the morning and that when he knocked on the door there was no answer and that he went around to the back door and because he had no keys, he pushed in the door with his shoulder, he not expecting MJS to be at home. He then found MJS sitting on the lounge. 53 MJS told the appellant that she had just called his mother to come and get him and the appellant told her that he had just come to pick up the rest of his clothes and his television, and that his mother came up the steps as he was carrying the television out the front door and that he went back to the bedroom to get his clothes and left. In cross-examination, the appellant agreed that this event occurred on 14 June 1999. 54 The appellant's further evidence was that he found a letter from MJS in his mailbox, which he said, in cross-examination, was either on the 14 or 15 June 1999. In the letter MJS asked him to meet with her, as she wanted to speak to him. They had Chinese food and talked about their relationship and that he had spent the night with MJS, and that sexual intercourse had occurred but that the following morning MJS told him that the relationship wouldn't work. The appellant said that he would pick up the rest of his things the following weekend, which he did, in the presence of his father. 55 The appellant said as to the facts, which were the basis for count number 1, that he did recall an occasion where he and MJS had had an argument relating to MJS not being paid for wood cutting but he denied assaulting her. 56 MJS denied sending a letter to the appellant inviting him over for dinner and also denied engaging in consensual sexual intercourse. Grounds of Appeal

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Ground One: The verdict of guilty is unreasonable and cannot be supported by the evidence. 57 The onus is on the appellant to demonstrate that the verdict of guilty, in relation to count 6 is "unreasonable and cannot be supported" in terms of s6(1) of the Criminal Appeal Act 1912, the test for which was laid down in the joint judgment of the High Court in M v The Queen (1994) 181 CLR 487 at 492. 58 The appellant, in support of this ground, sought to rely on the High Court decision of Jones v The Queen (1997) 191 CLR 439 the relevant passage being at 453: "The jury's finding of not guilty on the second count damaged the credibility of the complainant with respect to all counts in the indictment. Implicit in the appellant's acquittal on the second count was a rejection of the complainant's account of the events which were said to give rise to that count. The jury may have acquitted because the unshaken evidence of the appellant's wife and daughter with respect to the absence of opportunity engendered a reasonable doubt about the appellant's guilt on the second count. They may possibly have acquitted because they were of the view that the complainant had fabricated the circumstances giving rise to the second count. Having regard to the convictions on the first and third counts, the latter alternative seems an unlikely explanation of the verdict on the second count. Whatever the explanation may be, however, the jury's rejection of the complainant's account on the second count diminished her overall credibility. The only reasonable conclusion is that the jury were not satisfied beyond reasonable doubt of the truth of her evidence concerning the incident the subject of the second count. … It is difficult then to see how it was open to the jury to be convinced beyond reasonable doubt of the guilt of the appellant with respect to the first and third counts. There is nothing in the complainant's evidence or the surrounding circumstances which gives any ground for supposing that her evidence was more reliable in relation to those counts than it was in relation to the second count". 59 The court in Jones went on further to discuss the application of the test formulated in M v The Queen at 455: "In our opinion, the proper application of the test formulated by the majority of this Court in M required the convictions of the appellant to be set aside on the basis that they were unsafe and unsatisfactory. Given the jury's finding on the second count, it was not open to them, on the whole of the evidence, to be satisfied beyond reasonable doubt of the guilt of the appellant on the first and the third counts. Once the jury found that the evidence of the complainant with respect to the second count lacked sufficient cogency to convict, the Crown case on the first and third counts wore a different complexion. For it meant that, when her evidence could be set against other reliable evidence, it failed to carry sufficient conviction to reach the criminal standard of proof. As we have already said, nothing in the complainant's evidence gave any ground for thinking that the quality of her evidence was higher in respect of the first and third count than it was in respect of the second count. When the credibility factor is combined with the uncorroborated nature of the complaints and the effect of the lengthy and unexplained delay in the making of the complaints, the convictions on the first and third counts can only be regarded as unsafe and unsatisfactory". 60 It was submitted by Mr Cook, counsel for the appellant, that recent decisions in this Court which applied Jones upheld the proposition that in cases where the only direct evidence comes from the complainant and the jury are not satisfied beyond reasonable doubt as to the complainant's evidence in one or more of the counts, it is not then open to them to be satisfied beyond reasonable doubt that the complainant's evidence is reliable on any count: R v RAT [2000] 111 A Crim R 360, R v Carbone [2000] NSWCCA 387, R v Dixon [2001] NSWCCA 39 and R v S [2001] NSWCCA 204.

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61 It was submitted by the Crown, that this Court's position in relation to Jones was clarified in R v Markuleski [2001] NSWCCA 290, 1 August 2001, where the majority, Spigelman CJ, Wood CJ at CL, Grove J and Carruthers AJ, held that the correct result of Jones was not as axiomatic as implied in the above cases, but rather differing verdicts may be a pointer to unreasonable verdicts, therefore, a thorough analysis of the evidence supporting each count is required. 62 The Crown thus submitted that the question for determination by an Appellate Court as held in M at 494-495, is: "… whether the court 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". 63 The relevant test was elaborated in Markuleski by Spigelman CJ who applied M at para 4: "In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the Court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displayed 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 allowances 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. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court 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". 64 Spigelman CJ further elaborated the test at para 6 of Markuleski, in relation to the appeals relying upon alleged inconsistencies between a verdict or verdicts of acquittal and of conviction: "The general principles with respect to inconsistent verdicts had been set out in authorities before Jones, particularly MacKenzie v The Queen (1996) 190 CLR 348 at 366-368 per Gaudron, Gummow and Kirby JJ. The threshold proposition, relevant for present purpose, enunciated by their Honours in MacKenzie at 366 was: "Where, as is ordinarily the case, the inconsistency arises in the jury verdicts upon different counts of the originating process in a criminal trial, the test is one of logic and reasonableness". The reasoning of the joint judgement of Jones , where there was nothing illogical about the divergent verdicts, represents a particular application of this test of "reasonableness". The reasoning in MacKenzie at 367 is pertinent to the present case: "…the respect for the function which the law assigns to juries (and general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense. Thus, if there is a proper way by which the appellate court may reconcile verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury. In a criminal appeal, the view may be taken that the jury simply followed the judge's instruction to consider separately the case presented by the prosecution in respect of each count and apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt". The respect which the court pays to the constitutional role of the jury was emphasised in M at 493, in a passage referred to with approval in Jones at 451: "...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 these considerations". It is against this background, that the test for an unreasonable verdict - whether it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty must be applied to the whole of the facts and circumstances of a particular case.

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65 The Chief Justice in Markuleski, at para 16, outlined the three matters referred to in Jones, the combination of which led the court to conclude that it was not open to the jury to convict, these being, credibility, absence of corroboration and the effect of delay upon the accused. 66 The issue for this Court is one of fact. In MacKenzie at 367, per Gaudron, Gummow and Kirby JJ, the Court held that it was necessary to draw a distinction between legal inconsistencies in cases which are deemed to have factual inconsistencies. With legal inconsistencies, once identified, the impugned verdict must be set aside as inferring perhaps a misunderstanding of the judge's directions, a compromised dispute amongst the jury or through some other unidentifiable error. However, where the inconsistency arises in verdicts upon different counts of the originating process in a criminal trial the test as stated above is one of reasonableness and logic. 67 When examining the surrounding circumstances, the court is required to consider all of the facts of the particular case, and come to a conclusion, as to the credibility of the witness by reference only to those facts, rather than through some universal proposition (or a rebuttable presumption) that if the jury did not believe the witness in relation to the counts upon which it returned a verdict of not guilty, then it must necessarily be inferred that they could not have possibly believed her in relation to the count for which they returned a verdict of guilty. 68 Wood CJ at CL in relation to "unreasonableness" said in Markuleski at paras 233-234: "For the reasons already stated, I consider this approach to be incorrect so far as it would elevate the conclusion in Jones either to a principle of law, or a rebuttal presumption. Rather, I am of the view that the fact of differing verdicts is but one aspect of the review which an appellate court must conduct, and that it should take place alongside all the circumstances of the case. There may well be cases where the fact of acquittal on one or more counts will support an argument that the jury looked with real disfavour upon the credibility of the complainant or central witness. This may arise , for example, where: (a) verdicts of not guilty were returned on a preponderance of the counts in an indictment; (b) there was positive evidence in the defence case to establish that the version of events offered by the complainant or central witness was fabricated in relation to the counts upon which the accused was acquitted; (c) where the evidence offered by the prosecution, in relation to the counts on which the accused was acquitted, appears to be fanciful or inherently improbable ( R v W (1999) 109 A Crim R 51 provides a possible example); or (d) where the complainant or central witness has given versions, in relation to the count or counts upon which the accused was acquitted, were significantly inconsistent." 69 Also relevant is the importance of the constitutional role of the jury which has the advantage of hearing and seeing the witnesses. Because the Appellate Court is unable to apply logic to the jury's verdict on the face of the transcript, it is not a fait accompli that the jury acted unreasonably. 70 The Crown submitted that, because there were acquittals in relation to counts 1 - 5 it did not follow, in this case, that the jury "looked with real disfavour" upon the credibility of the complainant, such that the verdict for count 6 should be considered unsound and unreasonable. It should be noted that the trial judge had directed the jury to treat each count distinctively upon the evidence available for each. His Honour had also directed the jury that they could accept part of a witness's evidence. 71 The Crown further pointed out that the jury did not have to find the accused innocent before acquitting him, pointing out that if they were unable to decide on the truth of the evidence, the appellant was entitled to the benefit of the doubt. The trial judge had also directed the jury to take care when considering the delay by the complainant in reporting the assaults and the possible disadvantage that this could cause the appellant. 72 Further, it was pointed out, that the jury had been directed that special relationships with other witnesses were relevant when assessing the credibility of a particular witness in terms of their impartiality, objectivity or indeed in terms of protecting someone. All these particular directions, it was submitted by the Crown, could adequately explain why it was that the jury had come to the decision to acquit the appellant on the first five counts in the indictment, notwithstanding a conviction on the sixth. 73 It was submitted by the appellant that a jury, which had reasonable doubt as to MJS's evidence on counts 1 - 5, must rationally have a doubt about count 6. It was submitted that the evidence of MJS was uncorroborated in all counts except for possibly the evidence related to the bruising, and that the events alleged in counts 3, 4 and 5 were closely linked with the events charged in count 6.

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76 It is obviously difficult to reconcile the evidence, which was presented before the jury. The complainant stated that she received injuries as a result of the assault in the bathroom, which caused bruising to her calf area of both legs. None of the witnesses, who saw her following the incident on 12 June 1999, mentioned the bruising to the lower part of her legs. The bruising described by all of the witnesses, including her parents and nursing colleagues, as to her legs, was confined to bruising to MJS's right thigh area. 77 It was submitted by the appellant, that the evidence as to bruising, contradicted the evidence given by the complainant. The bruising that the witnesses saw on her thigh occurred, according to MJS, whilst the appellant was holding her down during the alleged sexual assaults in counts 4 and 5. 78 There was also some discrepancy over dates, with MJS's nursing colleagues giving evidence that they had witnessed the bruising on MJS in April rather than in June. Counsel for the Appellant argued in submissions that, even if the time could be fixed to some time after June 12, the evidence of the bruising witnessed by the complainant's nursing colleagues was inconsistent with that described by the complainant herself. 79 It was further submitted that it must be noted there was no medical or forensic evidence provided during the trial concerning the bruising and its pathology, particularly in relation to how soon it would appear following the assault and the likely time that it would last. 80 The appellant submitted that the fact relevant to the credibility of MJS was that, although MJS had attended the police station on 14 June 1999 (two days after the alleged assault) on an unrelated matter, she had not raised any of these complaints with the police. 81 The Crown submitted that the explanation for this lay in the fact that on the date the appellant had kicked in the door of MJS's house to gain uninvited access to the house, and had smashed the phone and the answering machine and threatened MJS with a knife, that MJS had visited the police station that morning and made the enquiry, as referred to earlier, as to what protection she would be offered. It was for that reason, it was submitted, that it was understandable that no complaint was made at this time. 82 In the course of argument, Counsel for the appellant conceded that it is a common experience of life that people who are subjected to domestic violence attribute other causes to it. 83 Counsel for the appellant also conceded that the evidence as to the dates of a collision with a kangaroo, the dates of the assaults, were not "fixed in stone", there being no evidence as to the actual date that the door was broken. 84 The Crown submitted that there were a number of explanations available for the differentiation in verdicts and there were explanations consistent with the jury acting in accordance with the directions given. 85 It was submitted in this respect that there were swellings and bruises close to MJS's knees and near her ankles. This evidence, the Crown submitted, was capable of supporting the complainant's evidence. It was submitted that the evidence of Roberts, set out above, was capable of supporting the evidence of MJS as well as the other witnesses. 86 The Crown suggested that the jury could well have accepted the complainant's account of her argument over the money and not accepted that the subconjunctival haemorrhage of the right eye was related to that incident. 87 Interestingly, the only person asked about the bruises and their appearances and any issue of length of time for them to emerge and disappear was the complainant herself, who was a trainee nurse. 88 The jury had been directed by the Learned Trial Judge that they had to deal with the evidence in respect of each allegation independently and had then been told they were entitled to accept part only of the evidence of a witness. 89 The jury were directed that they were entitled to note in respect of count 2 that there was an absence of medical attention for CS and thus no corroborative evidence available in circumstances where it might be expected that there would be.

At a glance

Court

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Before

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Judgment (42 paragraphs)

Parties

Cases Cited (9)

Cited By (1)