M v The Queen [1994] HCA 63; (1994) 181 CLR 487

M v The Queen, unreported; CCA SCt of WA; Library No 980452; 12 August 1998

R v Asplin [1999] WASCA 148

RM v The Queen, unreported; CCA SCt of WA; Library No 99083; 23 February 1999

1 MURRAY J : This application was brought as an appeal as of right based on the single ground that the verdicts of guilty in respect of three counts on this particular indictment were inconsistent with an acquittal on count 1. There are particulars of that ground which focus upon the fact that there were four alleged sexual offences in the indictment with respect to which the trial was concerned which occurred over a time span of a short period of about 30 minutes.

2 It is pointed out and it is a matter of significance, it seems to me, that the trial Judge did indeed direct the jury that with respect to each count they must consider the question of the guilt or innocence of the applicant separately and they must remember that, as his Honour expressly put it, the evidence in relation to each count was indeed different. That was clearly an appropriate direction and no complaint is made about it.

3 It is pointed out, however, that the jury have acquitted in respect of the first count which was a charge of an incident in association with which there were various events with which the evidence dealt. One of those of particular significance was that it was the initiation of an attack upon the complainant allegedly commencing with the commission of the offence of sexual penetration which was count 1. There was the removal of her clothing. There was a very considerable degree of trauma involved in the particular incident about which she spoke in her evidence, to such an extent that it seems to be accepted that she actually vomited on the bed in which she was during the time when that particular episode was said to have occurred. It was said that following that event her boyfriend was called in and a towel was obtained and the vomit was attended to, all of that very closely contemporaneously with the incident which was said to be count 1.

4 Count 2 was of a quite different character, although it followed very shortly after the allegation which was count 1. That was an offence of attempted sexual penetration and it was the allegation, and the complainant's evidence was, that that offence was committed when her boyfriend was called back into the room by the applicant and invited to sexually penetrate the complainant. He did indeed make an attempt to do so and so the applicant's guilt of that offence was put squarely upon the basis that he procured the commission of that act. When the boyfriend of the complainant was unsuccessful he was despatched again from the room and the offence of sexual penetration which was count 3 occurred and count 4, an unlawful and indecent assault, followed immediately upon that.

5 Associated with the events concerning count 1 was the obtaining of a condom, and when count 3 was committed that offence of sexual penetration occurred while the applicant was wearing the condom. Indeed, it was said that he called out at that stage, upon penetrating the complainant, that the condom had broken and thereupon withdrew and masturbated himself upon her torso, the offence which was count 4 on the indictment.

6 The proposition which is advanced in support of the appeal is that in the circumstances of the case the jury could not rationally have reached a verdict of not guilty in respect of count 1 and then convict in respect of counts 2, 3 and 4. The only basis, it is argued, upon which they might not have convicted of count 1 is that they were unpersuaded of the reliability of the complainant's evidence in relation to that event. That much is certainly to be accepted. The difficulty arises when the applicant goes on to ask rhetorically how then could it be that the jury acting reasonably and rationally might have accepted her as a reliable and accurate witness in relation to counts 2, 3 and 4?

7 It is pointed out by the respondent that there are differences in the manner in which she gave her evidence in respect of the events of the occasion in question. It is pointed out that although it is the case that her evidence was firm enough in respect of each matter when she gave her evidence in-chief, considerable uncertainty in her evidence appeared when she came to deal with cross-examination and the testing process became more acute. Then, particularly in respect of count 1, it often occurred that she simply asserted she could not remember how or in what particular circumstances events which she had previously related occurred.

8 That is material which no doubt would have a considerable impact upon the jury's capacity to rely upon her evidence, given that it was the only evidence capable of establishing guilt of count 1. The position may be contrasted with the way in which she dealt with the process of cross-examination in respect of counts 2, 3 and 4. Although there were occasions when she exhibited some uncertainty she departed from the clear evidence she had given in chief to a very much lesser extent and she continued to assert that those offences had been committed in the way that she had previously recounted with some precision.

9 It seems to me that in those circumstances it is not possible to say, having regard to the way in which the matter was dealt with by the High Court in Jones v The Queen (1997) 191 CLR 439, that a reasonable jury, not finding itself persuaded of the accuracy and reliability of the complainant's evidence in respect of count 1 must have been similarly unpersuaded in respect of counts 2, 3 and 4.

10 There were distinctions in the way in which she gave her evidence and it seems to me that it was perfectly open to the jury to say that for whatever reason they were not satisfied that her recollection of the events was sufficiently accurate so that they might place reliance upon it to convict of count 1, but they were satisfied that that was the case by the time she recounted the events which represented counts 2, 3 and 4.

11 It seems to me therefore that the ground of appeal is not made out. This proceeding should have been brought as an application for leave to appeal. On that basis the view to which I have come is that whilst I would grant leave I would dismiss the appeal.

WALLWORK J: Yes, I agree with what Murray J has said and there is nothing I wish to add to that.