Court of Appeal (WA)|1998-09-16|Before: Ipp J, Kennedy J, Steytler J

Terrence John Mccomish & Ors v The Queen & Anor [1998] WASCA 248 (16 September 1998)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

Criminal law and procedure - Indictment containing 35 counts of sexual offences - Fourteen verdicts of not guilty (five by direction) - Jury unable to reach a verdict on two counts - Crown conceding that six other verdicts of guilty should be quashed by reason of complaint being made out of time - Whether remaining jury verdicts should be set aside as unsafe or unsatisfactory.

Ascoli v The Queen, unreported; CCA SCt of WA; Library No 970173; 18 April 1997

Vella v The Queen (1990) 2 WAR 537

I have had the benefit of reading in draft the reasons to be published by Ipp J, with which I am in agreement. I desire only to add some brief observations of my own.

Counts 1 to 16 in the indictment, other than counts 7, 9, 10 and 15, charged offences of unlawful and indecent dealing, contrary to s189 of the Criminal Code, a provision which was repealed with effect from 1 August 1992. By subs(8), a prosecution under that section for the offence of unlawfully and indecently dealing with a child under the age of 16 years was required, if the child was of or over the age of 13 years, to be commenced within three months after the offence had been committed. The complainant was under 13 at the time of the offences charged in counts 1 to 3; but the jury returned verdicts of not guilty in relation to those counts. Subsection (8) applied to each of the remaining counts of unlawful and indecent dealing, and the applicant should not have been indicted in relation to them. It follows that the evidence regarding the alleged unlawful and indecent dealing, other than in relation to counts 1 to 3, should not have been led, except insofar as it was relevant to the relationship between the complainant and the applicant, to which it was not directed. As it turned out, the applicant was found not guilty on counts 10, 14 and 15 by direction of the trial Judge, there being quite inadequate evidence to sustain the charges. In addition, the jury were unable to arrive at verdicts in relation to counts 11 and 12. In the circumstances, the Crown rightly conceded that the verdicts of guilty on counts 4, 5, 6, 8, 13 and 16 must be quashed. But that does not overcome the prejudice which is likely to have resulted from the out of time charges being brought and evidence being led in relation to them, without any guidance having been possible as to the limited use to which that evidence might properly have been put, as to which see generally Gipp v The Queen (1998) 72 ALJR 1012, at 1015, 1026-1029, 1041-2, 1045-6.

Why it was that the jury found the applicant not guilty on the first three counts, but guilty on a number of the later counts charging offences under s189, is not immediately apparent, the evidence, to all intents and purposes, being identical. The distinction seems to have been that the complainant was only eight or nine years of age at the time alleged in the first three counts and his Honour, in his summing up, did suggest that the complainant's recollection of the early events might not have been accurate, notwithstanding that there was nothing to be found in her evidence to indicate that this was the case. Although it followed that the jury did not accept her evidence with respect to the first three counts, this does necessarily reflect upon her credibility - see R v DJK (1997) 96 A Crim R 443. As has frequently been said, it is not the role of this Court to substitute its view of the facts for that view which was open to the jury.

Another disquieting aspect of this matter is the complainant's destruction of the letter which she wrote to the applicant and which is referred to in the reasons of Ipp J. The complainant clearly believed that the contents of this letter would be used against her. Having previously taken the letter from the applicant's personal belongings, she destroyed it after she had made her complaint to the police and at a time when she knew the letter was being sought by the police. From what was said as to its contents, the letter could have been of considerably more significance in the trial had it been tendered and read together with the other cards and letters.

The question now is whether the verdicts of the jury convicting the applicant are unsafe and unsatisfactory. The applicable test is that formulated by Mason CJ, Deane, Dawson and Toohey JJ in M v The Queen [1994] HCA 63; (1994) 181 CLR 487, at 493, that is to say, whether this Court considers that, on the whole of the evidence, it was open to the jury to be satisfied beyond a reasonable doubt that the accused was guilty. For the reasons given by Ipp J, and taking into account the foregoing observations, I have concluded that it was not. In these circumstances, I would grant the applicant leave to appeal, I would quash the verdicts of guilty and I would direct a judgment and verdict of acquittal to be entered on each of the relevant counts in the indictment.

The appellant, who was born on 17 January 1950, is the stepfather of the complainant who, according to her birth certificate, was born on 10 January 1973. The appellant is a man without much formal education. He has worked in a variety of occupations such as a truck driver and kangaroo shooter.

The complainant is the daughter of the appellant's wife, Mrs McComish, by whom he has other children and with whom the appellant began living before the complainant was two years old. In effect, the complainant has known no other father. She always referred to the appellant (at least to his face) as "Dad", he regarded himself as her father, and was responsible for her discipline and welfare throughout her childhood years.

The appellant stood trial in the District Court on 35 counts. All counts with the exception of count 26 concerned unlawful sexual activity involving the complainant. Count 26 alleged that, on 31 August 1996, the appellant unlawfully assaulted the complainant and thereby did her bodily harm. This assault occurred when the appellant was drunk at a wedding and was in a jealous rage because the complainant was associating with another man. The appellant pleaded guilty to this count.

The remaining 34 counts fell into two separate categories. Counts 1 to 18 constitute the first category. They all involve conduct that occurred between 10 January 1981 (when the complainant was 8 years old) and 1 June 1989 (when the complainant was between 16 and 17 years old). Fifteen of the 18 counts are of unlawful and indecent dealing. The allegations involve the appellant touching the complainant's genitals, kissing her mouth, putting his finger in her vagina, and touching her breasts. Three of the counts involve sexual penetration by cunnilingus. The second category of counts comprise 16, all of which occurred between 10 January 1990 (when the complainant turned 17 years) and 24 November 1996 (when the complainant was 23 years 10 months old). These counts are of sexual penetration involving cunnilingus and the penetration of the complainant's vagina by the appellant's penis, and various forms of indecent assault.

The prosecution case rested substantially on the evidence of the complainant. Other witnesses were called to testify on behalf of the Crown, but, generally, their evidence related to peripheral issues. The complainant's testimony as to the commission of the offences was not corroborated. There was also no recent complaint. The appellant first told Mrs McComish of the sexual relationship between the complainant and himself on 31 August 1993, and on the same date this was confirmed to her by the complainant. The complainant first reported the matter to the police in November or December 1996.

The appellant did not testify at the trial. However, he gave an extremely lengthy interview to the police which was recorded by video and tendered as an exhibit at the trial. It is apparent from his interview (and the trial was so conducted) that his defence to the first category of charges was denial. That is to say, he denied all the unlawful sexual activity alleged. As regards the second category, the appellant admitted the sexual acts alleged but contended that they were consensual or that they took place under an honest and reasonable, but mistaken belief that they were consented to. He asserted in the police interview that, from the time the complainant turned 17 years, he had sexual intercourse with her on more than 200 occasions, and under cross-examination she agreed with this.

As regards the first category of charges (counts 1 to 18), the jury brought in verdicts of not guilty by majority on counts 1, 2 and 3. These involved unlawful and indecent dealing between 1 January 1981 and 31 December 1982. They brought in majority verdicts of guilty on counts 4 to 10, 13, 16 and 18. They failed to agree on counts 11 and 12, which alleged unlawful and indecent dealing on a date unknown between 1 January 1987 and 3 June 1987 at Norseman. They acquitted by direction on no case submissions in regard to counts 14, 15, and 17.

As regards the second category of charges, the jury returned majority verdicts of guilty on counts 19 to 25, 28 and 29. The appellant was acquitted of count 27 by direction after a no case submission. The jury acquitted the appellant on counts 30 to 35, all of which involved sexual penetration and unlawful and indecent assault alleged to have occurred in November 1996 at Wattle Grove.

On appeal, counsel for the respondent very properly drew attention to the fact that counts 4, 5, 6, 8, 13 and 16 were time barred in terms of s189(6) of the Criminal Code. Counsel for the respondent correctly submitted that the convictions in respect of these counts could not stand and must be quashed.

The principal ground of appeal was that the verdicts were unsafe and unsatisfactory. Allied to that ground was the argument that the verdicts of not guilty on counts 1, 2 and 3, and counts 30 to 35, as well as the jury's failure to agree on counts 11 and 12, were fundamentally inconsistent with the findings of guilt on the other counts. It was submitted by counsel for the appellant that this was an "all or nothing" case, such as KBT v. The Queen (1997) 72 ALJR 116.

The task of an appellate tribunal when issues of this kind are raised is well settled. In Jones v The Queen [1997] HCA 12; (1997) 149 ALR 598 Gaudron, McHugh and Gummow JJ said at 606-607:

"In M v R [1994] HCA 63; (1994) 181 CLR 487 at 493 Mason CJ, Deane, Dawson and Toohey JJ said that the test for an unsafe or unsatisfactory verdict was whether the court thought that, upon the whole of the evidence, it was 'open to the jury' to be satisfied beyond reasonable doubt that the accused was guilty. The majority emphasised, however, that it was not the function of the court to answer that question merely by examining the transcript of evidence and the exhibits. Their Honours said that (at 493):

'In answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.'

The majority Judges explained (at 494) the application of the test as follows:

'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, displays 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 allowance 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 on that evidence.'"

Gaudron, McHugh and Gummow JJ proceeded to refer to the approach of other members of the High Court to the majority formulation of the test in M v R [1994] HCA 63; (1994) 181 CLR 487 and continued:

"However the test formulated by the majority in M must now be accepted as the appropriate test for determining whether a verdict is unsafe or unsatisfactory."

Accordingly, it is in the light of the test laid down by the majority Judges in M v R that the grounds of appeal which assert that on each count the verdict was unsafe or unsatisfactory have to be considered.

As regards the argument based on what are said to be inconsistent verdicts, the question is whether, given the jury's findings on count 1 to 3 and counts 30 to 35, and their inability to agree on counts 14 and 15, it was open to them, on the whole of the evidence, to be satisfied beyond reasonable doubt of the appellant's guilt on the remaining counts on which he was found guilty: Jones v The Queen. In Dalla Volta v The Queen, unreported; CCA SCt of WA; Library No 930118; 5 March 1993 and Freshwater v The Queen, unreported; CCA SCt of WA; Library No 940386; 28 July 1994, it was held that the approach to be adopted when it is argued that inconsistent verdicts have been arrived at by a jury is that expressed by Edmund Davies LJ in Kirby (1972) 56 Cr App R 758 at 759-760, namely:

"[T]here is no general rule that the mere fact that a jury has returned inconsistent verdicts means that the Court of Appeal is obliged ex necessitate to quash any convictions which may have resulted. Each case depends on its own facts. The approach which this Court in Durante (1972) 56 Cr App R 708, said is the proper one was indicated by Devlin J in the unreported case of Stone, heard in the Court of Criminal Appeal on December 13 1954. The learned Judge there said:

'When an appellant seeks to persuade this Court as his ground of appeal that the jury has returned a repugnant or inconsistent verdict, the burden is plainly on him. 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 were an unreasonable jury, or that they could not reasonably have come to the conclusion, then the convictions cannot stand. But the burden is on the defendants to establish that.'"

It is to be noted that the appellant did not in any way seek to criticise the learned trial judge's charge to the jury. The grounds of appeal were directed only to the content and weight of the evidence and the verdicts said to be inconsistent.

Counsel for the prosecution at the trial opened the case by saying that:

"In summary the prosecution case is that from about the age of 8 years old [the appellant] began to sexually molest his stepdaughter, [the complainant]. It is the prosecution case that he did so for his own personal sexual gratification, using her as a sex object.

As the child grew older, the treatment at his hands continued. There were many occasions of molestation, the Crown says, besides those which are complained of in the indictment. The molestation continued until, as you have seen from the indictment, she was in her early twenties. It is the prosecution case that she did not at any stage consent to his persistent molestation of her.

It is the prosecution case that she was in no position to do so. The law provides that a consent must be freely and voluntarily given and that a consent is not freely and voluntarily given if it is obtained by force, threat, intimidation, deception or fraudulent means, the latter meaning really dishonesty for the purposes of this case. During his long sexual domination of [the complainant], the appellant, the Crown says, used all of these factors to bring about her submission to his voracious sexual appetite."

In her evidence in chief, the complainant described the events, the subject of the various charges, in fairly uniform terms, in the sense that each category of offence was said to have occurred in a manner that was not different in any particularly noteworthy way from the others. She described incidents which occurred before she turned 17 years, when the appellant touched her vagina, put his hand on her breast and kissed her. She was able to distinguish the various occasions by reference to particular events and stages in her life.

She was asked whether she told anyone about what had happened and answered in the negative, saying:

"I was scared of the outcome - no one would believe".

"When I was really young and it first started happening he told me not to tell anybody, said it was between us. He always said that if I told somebody then I wouldn't be allowed to see the family anymore."

These remarks have to be seen in a context in which it is apparent that the appellant has a powerful and aggressive personality and was a dominant figure in the family. He is a very large man, and physically strong, and this contributed to the power he was able to exercise.

Counsel for the appellant at the trial did not spend much time in cross-examining the complainant about the incidents prior to the complainant turning 17 years of age. As mentioned, the basis of the defence was that, after the complainant turned 17 years, the sexual activity took place with her consent. The appellant's contention was that the complainant's testimony that she did not freely and voluntarily agree to the sexual acts that then occurred should be disbelieved. This, it was said, affected her credibility in regard to the alleged conduct prior to her 17th birthday with the result that the jury could not be satisfied beyond reasonable doubt as to any of the counts (save for the count of assault to which the appellant pleaded guilty).

The conduct, the subject of counts 19 to 22, took place on 10 January 1990, when the complainant turned 17 years of age. She testified that on that date the appellant took her shopping and purchased a signet ring for her, that being a present that she desired. He then took her to a motel, saying that he had a surprise for her. In the motel he penetrated her vagina with his penis. The following exchange occurred in her evidence-in-chief:

"And then what did he do with his penis?---He inserted it into my vagina.

Did you say anything to him?---I was telling him it was hurting.

For how long?---I'm not sure how long it was, but until he ejaculated.

What were you doing until that time?---I was crying and I had my hands on his shoulders, pushing.

And what were you trying to do?---I was trying to get him off.

Were you speaking to him?---I was telling him it was hurting and I told him I wanted him off.

When he ejaculated what did he do?---Once he had finished he rolled off.

What did you feel? - I was ashamed. I felt dirty. I was crying.

Did he say anything to you once he had done that?---Afterwards he hugged me and said, 'Happy birthday.'

Did you say anything in reply to that?---Not that I can remember.

Why was that?---I don't know - it had been going on for so long."

After they left the motel, as the complainant put it, "we went around to some of his friends' place."

I have quoted in full the complainant's account of what so occurred, as this is the only testimony given by her which is capable of being construed as involving some express or overt refusal of consent.

The appellant was asked whether, thereafter, she often went to motels with the appellant and she replied in the affirmative. She was asked:

At whose suggestion? ---More his. Sometimes it wasn't even suggested; we just ended up there."

It is to be noted that the reply to the question, "At whose suggestion?", does not indicate unwillingness by the complainant to participate in sexual intercourse. The answer, " More his", indeed carries with it the implication that on occasions she initiated intercourse herself.

The appellant began to take the complainant out in public, to hotels, restaurants and parties. She said that she went to a motel with the appellant, initially, every two weeks, and this apparently increased in frequency at a later time. The complainant said, "He treated me like his girlfriend and I was to go along and play that part". She said he would introduce her to people as his girlfriend, hug her in front of others, and kiss her. She said that this sort of conduct "went on for years".

She testified about an incident that occurred on 9 January 1993, on the day before her 20th birthday. This was the subject of counts 22 and 23. She and the appellant went to Bunbury to watch the speedway; there they slept in a station wagon. She said that he told her to take her pants off and she agreed because if she didn't do so, "then I didn't know what would happen afterwards". She said: "I was scared of him. I didn't know what he would do." She said that the appellant had "a bad temper and sometimes he can be violent". According to her the appellant has "slapped her a few times". She said "he has had me around the throat. He has put me into hospital."

The complainant testified that sexual intercourse occurred between her and the appellant in the station wagon at Bunbury. She did not suggest that she said anything to the appellant to the effect that she did not wish intercourse to occur. Rather, the tenor of her evidence was that she was scared of the appellant, and this is why she agreed to have intercourse: this is to be inferred from her reply when asked why she took her pants off.

The evidence concerning the appellant striking the complainant related to the incident at a wedding on 31 August 1996, which was the subject of the assault charge. Otherwise, the complainant's testimony as to violence was inconsistent with that of Mrs McComish, who said that the only time she had seen the appellant strike the complainant was on the occasion of the assault to which the appellant pleaded guilty. Mrs McComish had lived with the appellant for 22 years. She agreed that he was not a physically violent man "as far as the family is concerned". When asked about him striking the children, she referred to an occasion when he hit their son, but said that she had never seen the appellant strike the complainant apart from at the wedding. The complainant testified that the appellant had struck her mother "a couple of times", but Mrs McComish did not testify to that effect. In the re-examination of Mrs McComish the following exchange occurred:

"It was put to you that he was not a physically violent man or not a violent man, and you said, 'not physically no'?---Not towards the children or to me.

What did you mean by that answer, 'not physically no'?---He didn't actually hit people. He was very outspoken.

Of course, the fact that the appellant may not have struck the complainant (save for when she was a child and after the wedding on 31 August 1996) does not mean that she was not scared of him. This aspect of her evidence is, however, relevant to credit, generally.

After the incident in Bunbury, the appellant and the complainant continued to go to motels and other places to have intercourse together. In March 1993 the complainant moved out of the family home to stay with a female friend in North Fremantle. When asked why she moved away she said "I had started studying again and the pressures of everything was too much." The appellant came to see her in Fremantle and intercourse again occurred. The complainant lived with her friend "for a few months" but they argued and she moved back home to stay with her family, including the appellant. Sexual intercourse between her and the appellant continued to take place.

The complainant described an incident that occurred in 1995, after a party at Wattle Grove. This was the subject of counts 24 and 25. The appellant drove the complainant and two of her friends to their home at Belmont. At the appellant's insistence he and the complainant slept "in the spare bed" in the spare room, which had been offered to them by one of her friends. The appellant took his clothes off, pushed the complainant on to the bed and told her to take her clothes off. She complied. Cunnilingus and intercourse took place, and the next morning the two of them left. There was no testimony as to any overt intimidation on the part of the appellant (save for the pushing on the bed) or express or implied refusal of consent to sexual activity.

In 1996 the complainant met a man known as Jamie (who was 30 years old). She told the appellant that she wanted to go out with Jamie and she did not want to sleep with the appellant any more and, indeed, she did not want him to touch her any more. They discussed this for a couple of days and then he told her that if she wanted to keep seeing Jamie she had to move out of the home and not see the family. She became very angry and said "I flew off the handle at him a bit. I started yelling at him ...". The appellant insisted that if she kept seeing Jamie she would have to move out of the home. She in fact moved out and went to live with another female friend. While she was living with her friend she continued to have sexual intercourse with the appellant as before. He told her that if she kept seeing Jamie, "he would go around and see him and threaten to bash him up". In fact, the complainant was not banned from the family house - she agreed that the appellant and her mother "just didn't want [Jamie] being involved in any way". Eventually, she and Jamie decided not to go out together again.

At the time of the wedding in August 1996, the complainant was living with her female friend but going out with a man known as Gordon. She broke up with Gordon in October 1996 because, she said, the appellant became angry and told her that if she did not stop seeing Gordon he would "kill him" and the appellant "also threatened to bash me up". According to her "I had to sleep with Dad to keep Gordon safe."

On 4 November 1996 the complainant went to Bali with her mother. Shortly before she left for Bali the appellant called her at work and said "[w]ords to the effect that he wanted to take me out for tea and to sleep with me." She agreed, according to her, "because he told me it would be the last time that I would have to sleep with him". The complainant was asked what the appellant had said to her and she replied:

When asked how the appellant responded, she replied: "And then basically I could get on with my life is what he said." The complainant proceeded to go with the appellant to a motel and sexual intercourse occurred. This is the subject of counts 27, 28 and 29.

While in Bali the complainant telephoned the appellant. She said that the appellant required her to do this as "he was just making sure we were all right". According to her during the telephone call the appellant told her "that he had been talking to Gordon and Gordon had told him how long we had been sleeping together and what we had been doing and he told me that when I come back home, that if I didn't become his girlfriend and keep sleeping with him, I wouldn't be seeing the family any more".

At some time after the complainant returned from Bali, she communicated with the police Child Abuse Unit and spoke to a police officer, referred to at the trial as Bernadette. The complainant testified that after she had spoken to Bernadette the appellant came to see her at work and, according to her, "he asked me to be his girlfriend and because I had been in contact with Bernadette I knew that things were starting to happen so I agreed to what he said." She said that she knew that being the appellant's girlfriend meant that she would have to sleep with him whenever he wished, but because she had been speaking to Bernadette she knew "that I was going to get out one way or the other."

Sexual intercourse then took place between the complainant and the appellant on two occasions. The complainant was vague about the first such incident but said that it occurred at a motel on either the first or second weekend after her return. She said "I can't remember all the details on that one". This formed the subject of counts 30, 31 and 32.

Thereafter, on 23 or 24 November 1996, the appellant called at the complainant's house and she went with him to the Wattle Grove Motel where sexual intercourse occurred. This is the subject of counts 33, 34 and 35.

The complainant testified that the acts of sexual activity that took place after she returned from Bali did not occur with her "willing consent". She was asked why her consent was not "willing", and she replied:

"Because I knew that I was getting out of the situation and I wanted to keep everything quiet and I didn't want him to suspect what was happening."

After the incident on 23 or 24 November 1996, the complainant decided to terminate her relationship with the appellant and her mother arranged for her aunt to pick her up with her furniture and take her to Wongan Hills. No further sexual intercourse with the appellant took place thereafter, although the appellant then told the complainant that he wanted to marry her and asked her to move in with him. She refused.

The complainant concluded her evidence-in-chief with the following exchange:

"How did you feel towards him - that is, your stepfather?---When he was doing these things to me I hated him. I couldn't understand why he would do things like that to a child or a person you are supposed to love as your own child, but on the other hand, you know, he was a father to me on one hand as well, so I had mixed emotions about it.

For how long were you scared of him?---I'm still scared of him-I mean, from ever I can remember."

In cross-examination, several matters were raised which tended to show that the complainant was a willing participant in the sexual activity, at least at times. The cross-examination attempted to demonstrate that the complainant was a person of independent mind and was able to exercise a free will in agreeing to the sexual activity with the appellant after she became 17 years of age. I shall refer to some of the matters relied on by the appellant.

The complainant left school shortly after she turned 16 years of age and has been in employment ever since. When she was 18 years old she left Western Australia (taking her furniture with her) to stay permanently in New South Wales with an older man named Jim. The relationship with Jim did not work out, however, and she returned to live at home with the appellant and her mother. Thereafter, she had relationships with at least two other men (Jamie and Gordon) while participating in sexual activity with the appellant. These matters indicate some level of understanding of the ways of the world, and some independence of mind, relating to sexual matters.

The complainant was sufficiently capable of looking after herself to be able, from time to time, throughout the period of some six and a half years that sexual intercourse occurred between her and the appellant, to live not at the home of the appellant and her mother, but with female friends. Additionally, and to similar effect, is the fact that the complainant has been employed since she was 16 years. In the latter part of the period the subject of the charges she was receiving an education in fields that are not without relevance. In particular, in obtaining an Associate Diploma of Social Science in Welfare Studies (which she did on 7 May 1996), she studied child abuse. These matters, too, indicate a degree of self-reliance, maturity, and relevant knowledge.

The appellant also relied on a letter the complainant had written to him which was not put into evidence as she had destroyed it. The letter was not referred to by the complainant in evidence in chief, but under cross-examination she admitted having written a letter to the appellant in which she said, "I was ready to become a woman" . According to the complainant she wrote the letter shortly before her 18th birthday and "by that stage he had already deflowered me, so to speak". She insisted that the letter was written "well after" the first occasion that she and the appellant had sexual intercourse (ie when she turned 17 years). It was put to her that this letter, in fact, was written shortly before her 17th birthday, prior to penile penetration having taken place, but she disputed that. According to a police officer, the complainant had discussed the letter in question with her and had told the officer that she had written the letter "at about the age of 17". In the police interview which was videoed, the appellant said that the letter was written by the complainant shortly before her 17th birthday.

During the cross-examination of the complainant the following exchange occurred:

"What did that letter say?---It said that I was ready to become a woman, but you don't understand the circumstances around the letter.

I just want to know what was in the letter because no one can find the letter now?---That's right.

You destroyed it after you had made the complaint to the police?--That's right."

She said that she destroyed the letter because she knew that the appellant "would twist it" and "he would turn it to suit himself". She said that she wrote the letter because "he had asked me to write him a letter along those lines".

The complainant recovered the letter when she was living at Wongan Hills. She visited the family home with the purpose of finding it; she took it out of the appellant's file without his knowledge and destroyed it. She said that she "knew it would be used in his defence".

It was submitted on the appellant's behalf that the inference to be drawn from a series of Valentine's Day and birthday cards the complainant sent him is that she was an active and willing participant in their sexual activity. The complainant said that she started sending the appellant Valentine cards "maybe when I was 18". One of those cards was signed "Love, Katerina". An "X" was placed next to her name. The following words were printed on the card:

"You've got so much animal magnetism I think I'd do almost anything for you except empty your litter box".

When asked why she personally selected and sent that particular card to the appellant, the complainant said that if she did not give him birthday and Valentine's Day cards "he gets upset about it".

Another Valentine's Day card selected by the complainant for the appellant read:

"This very special message has a meaning all its own and that's just because it's meant for you and you alone. It comes to you with lots of love especially to say you are wished a world of happiness today and every day."

The complainant also sent the appellant a birthday card, the front of which read "What goes in dry comes out wet and is great fun for two people?" The reverse of the card contained a picture of a car wash. The complainant agreed in cross-examination that what was written on the front of the card could be an oblique reference to sexual intercourse; nevertheless, that was the particular card she selected.

A Father's Day card sent by the complainant to the appellant was also put into evidence. The inscription inside read "Wishing you a day of happy moments you will remember always, joyful times spent with those who mean the most to you, doing the things you love best". It was signed "Love, Katerina XXX". She agreed that she had "joyful times" with the appellant as a father.

In 1996, when the complainant was 23 years old, and before she had met James, the appellant went to Gascoyne on business. She wrote him a letter which ended as follows:

"I'm still going to the gym and have lost one and half kg. Which is good because I put on 3kg.

It seems like ages since you left, but just over three weeks, missing you heaps.

Hopefully I will be able to come up with Don on his next trip. So long as it isn't on the weekend.

She was cross-examined about the postscript and the following exchange occurred:

"This is reference to masturbation, isn't it?---It could be in reference to his work.

I am asking you is it a reference to masturbation?---No.

What work was he doing that was different up there?---He was working with kangaroos, manual labour.

I am suggesting to you that the letter has got no name to whom it's addressed?---That's right.

And it was sent from you when you were living with your mother and the rest of the family?---That's right.

I am suggesting to you that the reference to not having blisters on the hands is a reference to the fact that he was on his own and not having sexual intercourse with you?---No, it doesn't mean that at all.

Why didn't you put in the letter, 'Dear Dad', 'Dear Terry'?---I don't recall ...

Is it because you didn't want your mother to see the letter you are writing to him?---It doesn't worry me whether my Mum sees the letter.

Was that letter written when you were fearful of him?---Yes."

It was submitted that the words quoted from this letter are fundamentally inconsistent with a sexual relationship that was not consensual. Strong support is lent to such an argument by the reference to "missing you heaps", the complainant's expressed desire to be able to join the appellant "with Don on his next trip", and the ending and the postscript.

The complainant denied that she encouraged the appellant to believe that sexual intimacy between the two of them was consensual. Several matters were put to her which, it was suggested, established the contrary. I shall refer to some of them.

The appellant had the complainant's name tattooed on his arm. When he asked her whether she was agreeable to him arranging for such a tattoo, she said that it was "his decision". The appellant normally wore clothes which left his arms exposed and the tattoo was frequently prominently on display. When it was put to the complainant that that "would have fortified people's belief that you were a couple" she replied that people believed that, in any event, and had done so "for years". The evidence, as I have mentioned, was that the appellant frequently took the complainant to parties, restaurants and hotels and introduced her to his friends as his "girlfriend". In that company they were regarded as "a couple".

In 1993, for example, when the complainant (then about 20 years old) on a number of occasions accompanied the appellant to Kalgoorlie driving as escort while he was driving over-width trucks, they occupied the same room and slept together in the course of these trips. Wherever they went she was introduced as the appellant's girl friend. She did nothing to counter that impression.

Several photographs were put in evidence showing the complainant with the appellant in a happy mood. One photograph showed the complainant in a restaurant where she had accompanied the appellant preparatory to having sexual intercourse and she agreed she did not look unhappy in that photograph.

In my view, the aggregation of the evidence relied on by the appellant raises a serious question as to whether the sexual activity that occurred between the appellant and the complainant after she turned 17 years took place without her consent, freely given. As I have mentioned, it was common cause that intercourse took place some 200 times over a period of six and a half years until the complainant was nearly 24 years old. Arrangements were often made for assignations between the two of them on the telephone while the complainant was at work, and she went of her own accord to a variety of destinations, knowing full well the appellant's intention. Indeed, as I have pointed out, an implication arises from her evidence that on occasions she initiated intercourse herself. The complainant over this period reached a level of adult maturity, sufficient to live on her own, to support herself financially, and to have sexual relationships with other mature men. By 1996 her relationship with the appellant was such that when they had a difference concerning Jamie, she was able to display her anger to the appellant, such that, in her words, she "flew off the handle at him" and "started yelling at him". The cards she sent him were not only indicative of a truly affectionate relationship, but some were overtly sexually suggestive. The missing letter is certainly capable of being construed as the complainant contends, namely an act performed by her under the appellant's dominance, but in the context of the evidence as a whole a doubt as to the veracity of this testimony must arise.

The reasons given by the complainant for the sexual acts in question not taking place with her consent freely given, were - generally - that she was scared of the appellant, and that she was under his domination. In regard to some of the acts, she said that she was protecting her male friend of the moment, and towards the end she agreed to have intercourse because it was the last time that she would have to sleep with him, and because she knew that the police were involved and she was "going to get out one way or the other". While this evidence of the complainant was certainly capable of being believed by the jury, it is another question whether, in the light of all the matters to which I have referred, it was open to a reasonable jury to believe beyond reasonable doubt that the complainant did not freely and voluntarily give her consent to the acts alleged to have occurred after she turned 17 years.

Undoubtedly, at least over the years since the complainant turned 17 years, the appellant grossly abused his paternal role and took gross advantage of the complainant. This, however, in my opinion, does not automatically mean that the complainant did not freely and voluntarily consent to the sexual acts that occurred. Plainly, the conduct of the appellant after the complainant had turned 17 would tend strongly to a finding that the consent was not free and voluntary, but this would not necessarily be the case. Where (as in this case) the sexual acts were very numerous, were openly conducted, with the apparent continual co-operation of the complainant, and where the complainant was a person of relative maturity, independence, knowledge and intelligence, all the evidence must be scrutinised with particular care to determine the quality of the consent that was given. Often, and again, as in this case, considerations of credibility may be important.

An additional factor that has to be weighed in the balance in this appeal is the inference to be drawn from the verdicts of acquittal, and the counts where the jury could not agree: Jones v The Queen.

The verdicts of not guilty on counts 1, 2 and 3 can be explained on the basis that they were alleged to have taken place when the complainant was so young that there must be reasonable doubt as to the accuracy of her memory; the next set of counts related to an incident that was alleged to have occurred more than 4 years later.

There is no apparent explanation for the jury failing to agree on counts 11 and 12, which both alleged unlawful and indecent dealing on a date unknown between 1 January 1987 and 3 June 1987 at Norseman. Count 10 involved cunnilingus on a date unknown between 1 January 1987 and 31 December 1987 at Norseman. Count 13 involved unlawful and indecent dealing on a date unknown between 1 January 1987 and 31 July 1988. Thus there was little time difference between counts 11 and 12 and the preceding and succeeding counts. Counsel for the respondent was "unable to see anything special in the facts as such".

The acquittals on counts 30 to 35 concern the last two incidents of sexual activity between the appellant and the complainant which occurred in November 1996 at Wattle Grove. The complainant said in regard to these acts that she agreed to intercourse because she knew that the police were involved and she was "going to get out one way or the other". The complainant testified, generally, that she was "scared" of the appellant, and this was the fundamental reason why she consented to all the sexual activity in which she participated. The reason relating to the involvement of the police was an additional or supplementary reason and applied only to counts 30 to 35. These verdicts of acquittal are therefore possibly explicable on the basis that the jury decided that the complainant's feeling of security brought about by the police involvement meant that her consent to the sexual acts that occurred in November 1996 were truly free and voluntary. On this basis counts 30 to 35 can be distinguished from the other counts involving sexual activity after the complainant turned 17 years. But the difficulty brought about by the complainant's overall reason of at all times being scared of the appellant (which applied to all sexual acts) remains.

As I have pointed out, the prosecution case was opened on the basis that the complainant's consent was given because of "force, threat, intimidation, deception or fraudulent means" and that applied to all the sexual activity counts after the complainant turned 17 years. Counsel for the prosecution repeated this in his closing argument to the jury. The prosecution led evidence to show that the complainant was abused and intimidated psychologically and sexually by the appellant, who was portrayed as a very large, powerful, aggressive, violent, and dominant man, so that, in a sense, she was conditioned by the appellant to consent to all relevant acts (including those relating to counts 30 to 35); hence no consent was a true consent. The complainant's testimony was to this effect. In the closing argument of counsel for the prosecution he drew no distinction between the nature of the consent to counts 30 to 35 and that in other counts. The learned trial Judge put it to the jury on the basis that:

"The Crown case is that the complainant's consent was not freely given because it was given because she was scared of the accused because of the relationship between them. This morning [counsel for the prosecution] developed that and said that if you look at it in the context of the whole of the relationship between them, that ... the accused was such a dominant person that there was not a free and voluntary consent given at all and these are matters that you will have to consider".

As regards the last group of counts, his Honour told the jury that according to the complainant she consented, as she had done on an earlier occasion, because "it was the last time, but she also said that there was a threat to hurt her former boyfriend Gordon, and that was why she consented." I think, with respect, that this was an incorrect statement by his Honour; these reasons applied to earlier counts; but the evidence was vague and confusing in regard to why the complainant consented to sexual intercourse on the last few occasions, and no point has been made of this by either party.

Thus, the case of the prosecution, as it was presented to the jury, in substance did not distinguish between the nature of the consent in each case. Apart from some differences of detail in regard to particular sexual acts, the prosecution case was that the fundamental reason why the complainant agreed to have sex with the appellant was that she was scared of him and dominated by him. Whether that was to be accepted by the jury depended on the extent to which they believed her evidence. The police involvement in November 1996, and the complainant's belief that she was "going to get out [of the relationship] one way or the other" appeared only to be an additional reason for her consent to the acts that took place in that month. That being so, the jury's verdicts of acquittal on counts 30 to 35 do raise a question of consistency, albeit that, on its own might not have been sufficient to upset the jury's verdicts.

Although the issue is one of considerable difficulty, when all the above matters are taken together, I am left with the view that a jury could not be satisfied beyond reasonable doubt as to the veracity of the complainant's testimony that she consented to the sexual acts because she was scared of the appellant, and that she did not give her consent freely. In my view there is a reasonable doubt as to whether she participated freely and voluntarily in those acts. That view affects my opinion as to the credibility of the complainant as a whole. In the circumstances, I conclude that there is a significant possibility that an innocent person has been found guilty.

I would therefore uphold the appeal and set aside the guilty verdicts of the jury on all counts save count 26.

I have had the advantage of reading the reasons for decision proposed to be published by Ipp J. I agree with them and have nothing to add.

Terrence John Mccomish & Ors v The Queen & Anor [1998] WASCA 248

At a glance

Court

Decision date

Before

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Judgment (132 paragraphs)

Terrence John Mccomish & Ors v The Queen & Anor [1998] WASCA 248 (16 September 1998)

Parties

Cases Cited (5)