Stinson v Regina [2006] NSWCCA 191 | Case summary

The Incident 5 Mr Stinson and Ms A met in about 1999. Ms A lived with her four children in Bateman's Bay. Mr Stinson lived in Sydney. He came to Bateman's Bay from time to time to see his children, who resided with his former wife. Having met, they established a relationship. When in Bateman's Bay he would stay at her home. 6 In July 2002, Mr Stinson secured employment in Bateman's Bay. According to the complainant, he then came to her home unannounced with his possessions. She allowed him to move in. They thereafter shared a bedroom. The complainant said, however, that she was not happy with the arrangement. She also said that days before the incident she asked him to find somewhere else to live. 7 On 4 October 2002, Mr Stinson worked between 8.30 am and about 1.00 pm. He then went to the races. At 6.30 pm, or thereabouts, his friends dropped him off at the complainant's home. He was affected by alcohol. It was common ground that she was not pleased to see him. She requested her 21 year old son to ask him to leave. Her son did so, as the appellant acknowledged. 8 However, the appellant did not leave. He retreated to the balcony and smoked cigarettes. The complainant attended to her two younger children, putting them to bed. Her older children went out. 9 The complainant gave evidence that she went downstairs to get away from the appellant. However, he followed her. They had a discussion. She then went upstairs. Again, he followed her. She told him he needed to find somewhere else to stay. She rang a taxi. There was evidence from the taxi driver who came to the premises at 7.45 pm. He waited for about three minutes but no-one came out. 10 Mr Stinson did not leave. According to the complainant, he sarcastically invited her to telephone the police. She did so. On her account, he terminated the call. Mr Stinson acknowledged that Ms A called the police. However, he said she terminated the call when he reminded her that the police may be interested in certain drugs which her oldest son had in his bedroom. 11 Ms A said that she then became fearful. She checked her handbag for her car keys. They were missing. They were in the possession of the appellant. He returned them later that night. He later said that he took them because he intended to buy cigarettes. 12 The complainant said that she retreated to the bathroom. She felt the need to be alone so that she could think. She locked the bathroom door. She ran a bath because she thought that may help her relax. Having got into the bath, she heard the appellant walking down the hallway. She described what he did in these words: (T5 10.6.05) "... working the handle to try and get it undone and then work - got the implement or something to get the handle undone on the bathroom to break in." 13 The bathroom door locked from the inside. An implement was kept on the architrave above the door because the door had a history of malfunctioning. On occasions the children had become locked inside the bathroom. As he broke in, Ms A said that she drew her knees up and covered her breasts with a washer. She described herself as shaking when the appellant: (T5 10.6.05) "busted into the bathroom and he stood against the wall staring at me and shouting - he said, 'you can fuck anyone you like now and find yourself a bigger dick' ..." 14 The complainant said that he grabbed her and pulled her out of the bath, gripping her arms very hard. He dragged her across the hallway, forcing her onto the bed. When examined the next day, she had visible bruising to each elbow, which was photographed. The photographs were an exhibit in the trial. 15 According to the complainant, he then removed his clothing, although she does not remember him doing so. She was frozen and terrified. He sat on top of her chest and began masturbating. He attempted to put his penis into her mouth (count 5). She said this: (T16 4.4.05) "He grabbed my ankle and forced my leg, my right leg back to my right side, backwards against the way a knee can go, like that backwards, and I could hear all the bone breaking and it was like an electric shock going through my body, all the things were torn, ligaments and things were all torn and I had lost any use of my leg." 16 Thereafter he put his penis in her vagina (count 1). After a time the appellant, according to the complainant, said this: (T17 4.4.05) "'I've always wanted to fuck you up the arse', and he rolled me over and tried to do it in my bottom." 17 However, she said he had great difficulty because the muscles in her bottom "were so tight and tense". Nonetheless, he forcefully inserted his fingers into her anus (count 2). Ms A said he had not ejaculated. He resumed vaginal intercourse. She said this (being counts 3 and 4): (T18/19 4.4.05) "Q. You said that he was putting his fingers into your vagina and anus and then also put his penis back in your vagina? A. Yeah, I remember him doing that three times. He kept on stopping and masturbating himself and then forcing his penis back into my vagina again." 18 The Crown prosecutor returned to the allegation which was the foundation for count 5, that is that the appellant had attempted to force his penis into her mouth. The transcript is in these terms: (T19 4.4.05) "Q. You gave evidence earlier at one stage that, of his penis going into your mouth? A. Yes. Q. Can you recall what happened in relation to that? A. He was trying to push it into my mouth and I kept my mouth and teeth clenched and he said he would squirt it [into] my eyes. Q. He was sorry? A. He would spray my eyes, but he didn't, he couldn't ejaculate and he kept on masturbating himself. Q. When he had his penis at your mouth area was he saying anything other than what you've just given evidence of, do you recall him saying anything else? A. He asked me to suck his dick. Q. What position was he in relation to you when he had his penis at your mouth? A. He was sitting on my chest. I couldn't breath properly. I was asking him to get off my chest, I couldn't breath. He's very heavy." 19 The appellant gave an entirely different account. He said he manipulated the lock to the bathroom door to open it. He then sat on the floor. They discussed their relationship. He told the complainant that if he left he would not come back. On his version, there was no argument. They kissed. He removed her towel. They then went to the bedroom, where he undressed. Thereafter, with her consent, they had intercourse for about fifteen minutes. 20 The complainant, however, according to Mr Stinson, did not seem interested. She did not want to touch him. She just lay there. They ceased intercourse at one point and then resumed. Having resumed, the complainant then said: "Dave, you don't want to do this." He became upset at her comment. He responded saying: "No, I had to think of somebody else." She then said: (SU 35) "Yes, you'd probably think of my daughter while you were screwing me." 21 The appellant was offended by that comment and became angry. He grabbed her arms, acknowledging that he must have bruised her in the process. 22 Once intercourse had ceased, they continued arguing. Both sobbed as they argued. Then they heard a noise in the kitchen. The complainant endeavoured to scream. The appellant acknowledged that he placed his hand over her mouth. 23 What followed next was the subject of a great deal of evidence. The complainant said that she could not breathe. Her daughter came into the bedroom. The complainant recalled her daughter addressing the appellant, saying: "Just go". He responded: "Where am I to go?" 24 The daughter gave evidence that she arrived home at 10.15 pm. She heard a high-pitched scream. It was not loud. She dismissed it as a cat. She then heard another muffled scream which was coming from her mother's bedroom. She went to the bedroom and heard her mother say: "You're hurting me. I can't breathe, get off me" (T122 6.4.05). She then entered the bedroom. The light in the hallway was on. She was able to see the appellant on top of her mother, in bed. The bedclothes were in disarray. The sheets were on the floor. She was with a friend, Adam, who stood next to the door. Her mother screamed: "Call the police. David's been hurting me" (T122 6.4.05). 25 The appellant told the daughter to leave. He said he needed five minutes with her mother. Her mother, meanwhile, was directing her daughter to "get him out". The daughter refused to leave the bedroom. She turned her back to enable the appellant to put on his clothes. She told him to leave and he did so. A short time later he returned briefly with the car keys. 26 The daughter's friend, Adam, provided a similar account. He recalled the complainant saying: "He had me in here; he's been hurting me in here for hours." Shortly after, Adam spoke to the appellant outside the house. They had a cigarette together. They knew each other, having played together in a band. Adam said that the appellant's speech was slurred. The appellant made the comment: "Alcohol brings out the worst in the best of us" (T192 6.4.05) 27 The account given by the appellant was not remarkably different. As mentioned, he acknowledged that the complainant endeavoured to scream. He placed his hand over her mouth. He recalled that the complainant's daughter asked her mother whether she was alright. He acknowledged that she said he had hurt her. He remembered asking the daughter for five minutes to get dressed, and then leaving. He denied that he had forced himself upon the complainant. He denied that he had inserted his fingers into her anus. He had not attempted to force his penis into her mouth. Nor, on his account, had he injured her knee. Indeed, she had told him two weeks earlier that she had slipped in the shower. 28 Family members and Adam described the complainant after she emerged from the bedroom as "very upset". She told her daughter that he "hurt me and he raped me" (T126 6.4.05). However, she did not want the police called. Indeed, she did not want to tell anyone. She simply wanted to go to bed, which she did. 29 The next morning the complainant's former husband arrived to collect the children. He gave evidence that the complainant was still distressed. She said that she had been raped. He passed this information to her brother who notified the police. The police arrived at 10.05 am that day. One officer described the complainant as "quiet but upset and crying". She was taken to Bateman's Bay Hospital. No doctor was immediately available. Ultimately she saw Dr Parekh. Dr Parekh conducted an examination that lasted about an hour. There was no injury to her vagina or anus, although that finding neither confirmed nor negated the history she provided. Her leg was bandaged at the time of the examination. Dr Parekh, however, regarded her knee as normal. There was a complaint of soreness. However there were no positive signs such as swelling or bruising. The doctor acknowledged that mild effusion would not necessarily be evident during a physical examination. There was also evidence that, on 7 November 2002, the complainant was examined by Dr Mathew Nott, an orthopaedic surgeon. On 28 October 2003, he performed arthroscopic surgery which revealed a tear to the medial meniscus of the right knee. 30 There was also evidence that the complainant had seen the appellant after the incident, and had telephoned him. She said she did so because she had been told that he was suicidal and wished to see her. On her account there was no intimacy. She had no further contact. 31 The appellant gave evidence of frequent contact after the incident, with intimacy on a number of occasions. After he left the complainant's home, he shared a house in Bateman's Bay with a Mr Senior. Mr Senior recalled the complainant coming to the home on one occasion. He thought that she and the appellant were "still in maybe a semi relationship to some degree". He believed that they went into the bedroom to converse. The appellant was accompanied by a child.

Were the verdicts unreasonable? 32 Section 6(1) of the Criminal Appeal Act 1912, so far as presently relevant, provides: "The court on any appeal under section 5(1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported ..." 33 The test to be applied was stated by Mason CJ, Deane, Dawson and Toohey JJ in M v The Queen (1994) 181 CLR 487 as follows: (at 493) "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." 34 Where the Crown case relies upon multiple counts, and depends fundamentally upon the testimony of one witness, and where the jury finds the accused guilty upon some counts, but not others, the question of inconsistency and unreasonableness arises. In determining whether the verdicts are inconsistent "the test is one of logic and reasonableness" (MacKenzie v The Queen (1996) 190 CLR 348, per Gaudron, Gummow and Kirby JJ at 366). The High Court in MacKenzie adopted the statement of principle as formulated by Devlin J in R v Stone (unreported, 13.12.54), where the task of the appellant was described in these terms: (MacKenzie (supra) at 366) "He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand." 35 Gaudron, Gummow and Kirby JJ added: (at 367) "Nevertheless, the respect for the function which the law assigns to juries (and the 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 the 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." (emphasis added) 36 Here the appellant contends that, upon proper analysis, the verdicts were inconsistent. The events giving rise to the charges occurred within a short time, perhaps two hours, inside a closed bedroom. There were no witnesses. Although members of the family had been present earlier in the evening, and were again present later, they did not witness the conduct giving rise to each charge. The Crown case, therefore, depended entirely upon the complainant's word. The appellant, in sworn evidence, denied her allegations. In these circumstances, the credibility of the complainant was fundamental. She described what occurred in terms which, according to the appellant, left no room for doubt. She was not shaken in cross examination. Yet the jury plainly did not accept her account in respect of the circumstance of aggravation on count 1, nor her evidence in respect of counts 2 and 5. They apparently did accept her evidence in respect of a sexual assault without aggravation in count 1, as well as counts 3 and 4. The differing conclusions on the appellant's argument, cannot be rationalised. They are illogical and unreasonable. On the appellant's case, the matters that caused the jury to reject the complainant's account in respect of the circumstance of aggravation on count 1 and counts 2 and 5 should have led them to reject her account in respect of the remaining counts. 37 The appellant pointed to the following words in Jones v The Queen (1997) 191 CLR 439, which were said to aptly describe the situation of the complainant in this case, where Gaudron, McHugh and Gummow JJ said this: (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. Having regard to the terms of the second count, we do not think that the complainant's confusion about whether the offence took place on a Thursday or a Saturday could explain the acquittal on that count. If that was the reason the jury rejected her evidence, they would also have acquitted the appellant on the first count." 38 The Crown responded to these arguments by examining closely the evidence called in respect of each count. There were, according to the Crown, plausible explanations for each verdict, unrelated to the credit of the complainant. 39 In respect of count 1, there were a number of possible explanations, as the appellant conceded in argument. There was no question that the complainant had suffered a medial meniscus tear to her right knee, as found on surgery on 28 October 2003. However, there was an issue of causation. When did it occur? The appellant suggested that it may have arisen when she slipped in the shower two weeks before the incident. The complainant, on the other hand, provided a graphic account of the circumstances in which it had occurred, in the course of being manhandled by the appellant. On the other hand Dr Parekh, who examined the complainant the next day, noted the knee as being normal. To add to the confusion, Const Lisa Hyne, in the notes she made in her notebook the following day, made no reference to the knee. On the other hand, the complainant's daughter and others, including Const Hyne, saw her limping or walking slowly the next day. 40 There was also a further issue, which may well explain why the jury ultimately had doubt in respect of the aggravated form of sexual assault charged in count 1. The circumstance of aggravation obliged the Crown to prove that the actual bodily harm was "maliciously" inflicted. Whilst there could be no question that the tear to the medial meniscus was actual bodily harm, his Honour explained what was required to establish that the injury was maliciously inflicted in these terms: (SU 18) "Now what is meant by maliciously? First of all it has the Latin/French 'mal' in it meaning bad, so it is a bad intention so that it means in law that it was done intentionally without lawful excuse. There is no suggestion in this case that it would be with lawful excuse. So that goes to the word intention, he had the intention to inflict actual bodily harm." 41 Since the jury convicted the appellant on the alternative charge of sexual assault, it was therefore satisfied that there had been sexual intercourse without consent, the appellant knowing that the complainant was not consenting. The rejection of the circumstance of aggravation meant either that the jury was not satisfied beyond reasonable doubt about causation, or the appellant's intention to inflict the injury which was suffered. 42 Count 2 was, according to counsel for the appellant, the subject of some confusion as to the way in which the Crown put its case. When the Crown opened, he said this: (T10 4.4.05) "You will then hear that the second incident is when he was trying to force his penis into her anus and vagina, and you will hear that she felt something penetrate her anus which caused her great pain, and at the time she was continuing to struggle. So that penetration of her anus is the second count." 43 The penetration ultimately relied upon by the Crown was penetration of the anus by the appellant's finger. The Crown addressed upon that basis in his closing address. His Honour thereafter summed up on the same basis, helpfully reminding the jury of the evidence. He said this: (SU 21) "Now the evidence relevant to that particular charge is in these terms. You may remember that first of all she said he had told her 'I've always wanted to fuck you up the arse', and he rolled her over 'and tried to do it into my bottom'. Now that is a factual position that is not the subject of a charge." 44 His Honour continued: (SU 22) "She said that he could not do it successfully, that is the penis 'but he kept on trying so that then his arms and his hands were so strong he kept on trying to force his fingers into my bottom and vagina and it was very painful and terrifying', and again he tried to insert them into the vagina and there is no charge in relation to that matter either, but it forms the same category of context, and she was asked: 'Q. And what did you feel firstly in your anus when he was doing that? A. His fingers pushing in really hard. Q. Into your anus? A. Yes.'" 45 His Honour then reminded the jury of the evidence given by the complainant in cross examination, including the following: (SU 22/23) "Q. And are you saying that his penis, sorry his fingers went inside your anus and inside your vagina at this point? A. He had great difficulty because my muscles in my bottom were so tight and tense and I wasn't going to allow him to do it, but he was forcing really hard and it really hurt. Q. And you felt pain inside your anus? A. Yes. Q. What were you doing whilst he was doing this to you, fingers in your anus and vagina? A. Trying to stop him. Q. What were you actually doing? A. Asking him to stop, pushing him away and to calm him down." 46 His Honour then gave the following instructions: (SU 23) "Now that scenario might suggest that the fingers did not or finger did not penetrate the anus. If that were so then two things might follow. One is that you are not persuaded beyond a reasonable doubt that there was an act of intercourse in the sense that the fingers did not penetrate or had not been proved beyond a reasonable doubt to have penetrated, or that there was an attempt by him, an alternative verdict which is allowable in this case." 47 Having dealt with the elements of an attempt, his Honour concluded his instructions on this aspect with these words: (SU 23/24) "So that on that evidence the Crown would put to you that there is evidence that proves beyond reasonable doubt if you were to accept that as establishing that there had been entry of the finger into the anus. On what she said initially in chief it might be dubious on that evidence that there was an entry. However, as I say to you that might involve the issue of whether he had attempted to insert his finger or fingers into her anus and been unsuccessful, and if you have not been satisfied that the offender is - start again ... - if you are not satisfied that the accused is guilty of the crime charged you must find him not guilty ..." 48 The jury was entitled to conclude, according to the Crown, that whilst the complainant was truthful, she may have been mistaken as to whether there had been actual penetration of her anus. 49 The final count, in respect of which the jury returned a not guilty verdict, was the fifth count. The fifth count, it will be remembered, charged an attempt by the appellant to insert his penis into the complainant's mouth. Again, the evidence was confused. The complainant said that the appellant was sitting on her chest masturbating. She added: "I just felt his penis touching my mouth". She did not suggest penetration. She had her mouth and teeth clenched. The Crown submission on this appeal was in these terms: "43. Again the jury was entitled to conclude that the complainant was being truthful but that her description of events was such that they were not convinced that the appellant's actions amounted to more than mere preparation. This is understandable given that the complainant's recollection of the sequence in which the events occurred was confused." 50 Count 1 (without the matter of aggravation) and counts 3 and 4, in contrast, were allegations of penile vaginal intercourse. The only issue was consent. The complainant's allegations were consistent with her complaint to family members and the police. She said that she had been raped. She told Const Lisa Hyne the next day, as recorded in her notebook, the following: "... he forced me onto my bed and started on me for ages"; "he pulled my legs opened, he held my arms on top body down"; "his penis penetrated my vagina"; "I struggled for about an hour and a half"; "until my daughter Channell came home with her boyfriend". 51 The complainant also provided the police with a statement made the next day. The statement included these words: "I can remember three specific instances where his penis was inside my vagina." 52 On the Crown submission, the guilty verdicts on counts 1, 3 and 4 reflected each act of penetration, and an acceptance by the jury that there had been no consent. The Crown said this: "46. It is the Crown's primary submission that the verdicts of acquittal are capable of explanation which do not impact upon the complainant's credibility on other counts." 53 I accept that submission. Each count in the Crown case involved the fundamental proposition that the complainant had been overpowered by the appellant and subjected to various forms of intercourse to which she did not consent. In circumstances where the jury had returned guilty verdicts on some counts but not others, one can well understand that an issue of inconsistency arises. However, I accept that the different verdicts may properly be reconciled in the manner suggested by the Crown. Indeed, as mentioned, the appellant in argument acknowledged that the matter of aggravation in count 1, and the differing issue arising from the charge of attempt in count 5, were relevant points of distinction. Dealing with a similar allegation in another case, the following comments by King CJ (Olsson and O'Loughlin JJ agreeing) in R v Kirkman (1987) 44 SASR 591, are apposite to this case: (at 592) "It is to be remembered, however, that the jury were on the third count required to be satisfied that the appellant intended to insert his penis into the mouth of the alleged victim. This of necessity had to be a matter of inference. It seems to me that it was reasonably open to the jury to accept in substance what the alleged victim said about the incident but still not be satisfied that the precise detail on the appellant's movements were as she described them or that her interpretation of them was correct. It seems to me it was open to the jury to reach the conclusion that it was not satisfied to the requisite degree that the appellant's movements could be interpreted only as indicating an intention to force his penis into the alleged victim's mouth. I think for that reason alone it is fallacious to interpret the jury's verdicts as being inconsistent with one another." 54 In respect of count 2, which alleged the insertion by the appellant of his finger in the complainant's anus, there was a real issue as to whether there had been intentional penetration of the anus. It is unsurprising on the evidence that the jury should have entertained a doubt. The doubt did not suggest a rejection of the complainant's assertion that she had been overpowered and had not consented to the appellant's conduct. 55 The verdicts therefore can be rationally explained in a way which does not require an inference of inconsistency. The issue remains whether the verdicts were unreasonable and whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt as to the appellant's guilt in respect of counts 1, 3 and 4. 56 I believe that the verdicts were reasonable. There was much common ground as to what happened that evening before about 7.30 pm and after about 10.15 pm. That material is capable of providing insight into what happened in the bedroom in the two hours or so in between. The appellant was affected by alcohol. The complainant was displeased by his presence when he arrived at about 6.30 pm. Through her son, she asked him to leave. He did not do so. She then asked him herself. She called a taxi. She even called the police, although she did not ultimately speak to them. Again, he did not leave. She ultimately locked herself in the bathroom. The appellant used an implement above the bathroom door to obtain access. Although he gave a different explanation, the complainant had bruising to both arms, near the elbow, as demonstrated by photographs taken the next day. When she heard voices, shortly after 10.15 pm, she attempted to scream. Her screams were muffled by the appellant placing his hand over her mouth. When her daughter and her friend, Adam, came to the bedroom door, the complainant stated that the appellant had been hurting her. So concerned was her daughter, that she refused to leave her mother alone with the appellant. Instead she turned her back whilst he got dressed and then left. The complainant was visibly distressed. She complained of having been raped. She was still distressed the next day when she repeated her complaints to her former husband and the police. These matters were not contentious, apart from the cause of the bruising. 57 It was implausible in that context to suggest, as the appellant did, that once inside the bathroom, having penetrated the locked door, the complainant changed her attitude; that she embraced him and willingly accompanied him to the bedroom to engage in sexual intercourse. It is unsurprising that the jury rejected his account as a reasonable possibility.

Stinson v Regina

At a glance

Court

Decision date

Before

Source

Judgment (16 paragraphs)

Parties

Cases Cited (4)

Cited By (1)