WA v R [2011] ACTCA 4

The current appeal is one against a conviction for rape, where the focus at trial, and on the appeal, has been on the credibility of the complainant. The jury returned a verdict of guilty, after hearing the evidence, which included that of the complainant, who was a young woman who claimed that she had been raped by the appellant. He was her de facto father-in-law.

The complainant had been in a de facto relationship with BR for almost eight years. During that time, they had had three children. The appellant was the father of BR.. On 22 December 2008 BR , who had been on remand, was due to appear in the Magistrates Court on an application for bail. On that same day, the appellant was living in the flat of another son, WA in Red Hill. The complainant wanted to do what she could to maximize the prospect of BR’s bail application succeeding. However, she lacked the money to fund a trip to the Magistrates Court. She telephoned the appellant to help her with money. When he answered her call, she explained her position. He told her that if she came by taxi to the Red Hill flat, he would pay the fare. When she arrived, he was on the balcony of the flat. He threw down enough cash in a cigarette box to pay for the taxi. She joined him up on the balcony. That necessitated her passing through the flat. In the flat were WA and two of his friends. While she and the appellant were on the balcony, the three left the flat. They went downstairs. They remained nearby talking for a period of time before leaving. They were still downstairs when the complainant walked past, after she had left the flat.

As to all of those matters there was no dispute. Indeed, there was no issue as to some aspects of what occurred in the flat. There had been a request for money by the complainant. There had been intercourse between the complainant and the appellant. The dispute was as to what led up to that intercourse and the circumstances of it. The accounts of the complainant and the appellant were very different. It was as to what happened when she asked him for money that the accounts differed.

Her account was that, when she asked for money, he went to a bedroom, and returned with a weapon which she referred to as a sword, about 30 centimeters in length. He told her he wanted sex. She told him she would not agree as he was her father-in-law. Holding the knife, he told her that they would have sex. He took down her pants. She told him not to proceed as he was her father-in-law. He persisted. He took off his own pants. She was scared. She acquiesced. They had intercourse. He threatened her with consequences for her, for BR, and for their children, if she reported what had happened. She then left.

His account was that, when she told him that she needed forty dollars, he laughed at her. She told him that, to get that money, she was prepared to perform oral sex on him. He agreed. She began to give him oral sex. When she said that the oral sex was choking her, he said that he would have a fuck instead. She agreed to that, for an extra $10. She took her pants down, got on her knees and put her head in the lounge. He said that they had sex doggie-style. He paid her money. She went on her way.

The complainant gave evidence, and was extensively cross-examined. Oral testimony was given by eleven other witnesses. Three were police. One was a doctor. One was Dr Cindy Lim, a forensic biologist. There was testimony from WA and his two friends as to matters linked to the complainant arriving at and leaving the Red Hill flat. There was testimony from RE and BR to each of whom the complainant had complained of having been raped, albeit with no detail. The eleventh witness was SH. She was a woman known to both the appellant and the complainant. The complainant had, on the day of the bail application, borrowed from SH a mobile phone in order to ring the appellant to obtain information as to contacts that he could provide. SH had noted the distress of the complainant, which she linked to BR needing bail. The complainant said that, because she was scared, she had chosen not to complain to SH as to the events earlier in the day. The appellant, as was his right, did not give evidence, and called no witnesses. He had volunteered to be interviewed by the police. The video-recording of that interview, in which he gave his story, was played to the jury.

The only ground on which the appeal was made was that the verdict of the jury was unsafe and unsatisfactory in that the jury should have entertained a reasonable doubt. That meant that the appeal book did not contain the final addresses of counsel or the trial judge’s charge to the jury. We were not shown the exhibits. We had the transcript of the interview of the appellant, but did not view the videotape.

The appellant focused on seven issues which were said to have given rise to an unsafe and dangerous verdict. They were: a) The conduct of the complainant to the appellant following the incident of intercourse, in particular, her multiple calls to him in an apparently friendly manner; b) The manner of report by the complainant (conflict as to who she had told and when); c) The appearance of the complainant shortly after the intercourse, being an appearance devoid of outwards signs of upset; d) The absence of a sword as described by the complainant; e) The description of the use of the sword, including the laying down of the sword in front of the complainant while the appellant removed his pants; f) The complainant’s denial of knowledge that the appellant paid for sex; g) The forensic analysis of the complainant’s underwear.

In the written and oral submissions made on behalf of the appellant, we were taken to three High Court cases that bear on the approach to be taken by an appellate court to an appeal of this kind. One was State Rail Authority of New South Wales v Earthline Constructions Pty Ptd (in liq) and others (1999) 160 ALR 588. That is a civil case where reservations were expressed by members of the Court, particularly at [63] by Gaudron, Gummow and Hayne JJ and at [84], [88] and [93] by Kirby J as to how assessments of credibility by trial judges were to be viewed. The circumstance that that was a civil case where the judgment of the trial judge was available for close scrutiny necessarily means that the matters canvassed had only some limited applicability to a criminal case tried with a jury. In R v Hillier (2007) 228 CLR 618, a case that related, like the instant one, to an appeal from a decision after a trial by jury in this Court, Gummow, Hayne and Crennan JJ at [20], endorsed what had been set out in M v R (1994) 181 CLR 487 “to provide authoritative guidance to courts of criminal appeal” in the following extract: 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 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 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.

That passage from M v R is important both for spelling out what it is that the appellate court should look for where evidence is said to lack credibility, and also for the reinforcement it provides for considering the whole of the evidence when considering whether it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.

The ordering of the relative priority to be accorded to the seven issues raised on behalf of the appellant differed from written to oral submissions. It was accepted that some might not arouse as much concern as others, if each was analysed separately. While a separate review is called for, in the end they are to be taken, not piecemeal, but in combination. The order in which they are now addressed is that used in oral submissions, on the basis of the relative potency accorded by Mr Gill, for the appellant, increasing.

Mr Gill was prepared to accept that, of the seven, the matter to which the least weight probably could be accorded was as to the reporting by the complainant of the events. There were some discrepancies in the complainant’s accounts of what preceded the telling to BR, but they were scarcely of much moment. Our attention was also drawn to the difficulty in, if not the impossibility of, reconciling the evidence of the complainant and RE as to the manner in which, and the timing of, the MSN between the two in which the complaint of rape was made. The jury might well have treated that matter as of little moment, while proceeding to accept that the reports had been made, and relatively promptly, particularly given that the jury might well have accepted that a de facto daughter-in-law would have major reservations about making an immediate report.

It was put that the complainant ought to have been seen as less credible because she denied that she knew that the appellant paid for sex. That argument was based on a qualified answer given by BR to a question in cross-examination. Given the minimal amount of time taken up with this matter, the failure to raise the matter with WR , or to explore it further with BR, and the reasonable possibility that the jury could accept that the answers of both were accurate, one could hardly expect the jury to have been troubled by this point, even if it was the subject of comment in final addresses.

The forensic analysis submission went to the difference in the accounts as to who pulled down the pants of the complainant. She said he did. He said she did. Dr Lim was asked questions as to the tests she performed on the underpants of the complainant. If there had been a positive finding as to trace elements on one of the tests, that might have lent some support to what the complainant said. The answers of Dr Lim served to explain why the absence of a positive finding was not unexpected. In short, the evidence provided a minimal contribution to the evaluation of the two stories.

The complainant chose to refer to the weapon that she said that the appellant had on hand when forcing her to have sex, as a “sword”. She explained that she chose to use the word sword, rather than knife. Her description of the weapon was such that one would expect most people to call it a knife. She was shown the knife that the police located at the flat, when they attended to search it two days after the events in the flat. She said that that was not the sword that the appellant had held. One could not say that the jury would not have been troubled by that. The jury might well have considered that, in all the circumstances, the complainant was mistaken as to that matter, but it was not a matter of major significance overall.

On behalf of the appellant, it was put that the veracity of the complainant’s account was undermined by what she described as a form of acquiescence in waiting to be sexually assaulted. That was said to be implausible given that she had the chance to take up the weapon as the appellant was taking off his pants. This is very much the kind of advocate’s point which a jury would be in an excellent position to assess. It is not the kind of point that one would have expected to have been put strongly to the jury, unless the differences in stature and personality of the complainant and appellant clearly warranted it.

It was put that the demeanour of the complainant, as observed by WA and Sharni Saddler, was not that of an upset woman. The evidence of the sighting by WR was minimal. Sharni Saddler noted that the complainant appeared distressed, but attributed it to her concern about the bail application of BR. Questions of demeanour, including the perceived need and capacity to mask true feelings, are very much matters for the jury. The jury was in an excellent position to assess the conflict of emotions, of shame, of fear, of concern for others that, on her account, were besetting the complainant.

The final, and impliedly the most significant, point raised by Mr Gill called for a focus on the telephone calls made by the complainant to the appellant later in the day on which she said that he had attacked and threatened her. It was put that the making of those calls was so totally incongruent with her account of the attack that should have had a very significant adverse impact on her credibility. The making of those phone calls need to be assessed in the light of other aspects of her evidence. Moreover, in the most important respect, namely as to the intensity of the complainant’s desire to assist to get BR out on bail, what the complainant said was confirmed by Sharni Saddler. The jury, given not only the stated strength of her desire to assist BR, but also the clear indications of the impoverished and disorganized state of the complainant at the time, could reasonably have treated her recourse to her de facto father-in-law as one that was understandable in all the circumstances.

One aspect of the respect to be shown for the jury verdict is linked to the range of experiences of jury members. In the context of this case, and given the likely diversity of the experiences of members of the jury, they could find satisfying the explanations proffered by the complainant for her making decisions that, with the benefit of hindsight, were not the most sensible. Decisions she had to make included: whether to acquiesce or fight; whether to tell others what had happened; if so, to whom; whether to make further contact with the appellant. Likewise, given their own experiences, the jury were well placed to assess demeanour, not only of complainant and appellant in their presence, but the demeanour of the complainant in her past circumstances. They had the advantage of seeing her and of hearing her deal with a testing cross-examination. They were in a position to be able to assess her demeanour when she answered questions as to a range of matters such as the reasons for her claims of being scared of the appellant, and the intensity of her claimed need to assist BR to succeed on his bail application, which led to her making calls to the appellant later in the day. They were in a position to assess whether she looked to be, whether by stature or temperament or both, the type who would be scared. They were in a better position than an appellate court to assess whether the appellant looked as if he was, by stature and temperament, the type who would be likely to inculcate fear.

When it comes to assessing decisions made by a person caught up in a situation of a conflict of emotions, the jury was in an excellent position to assess the strength of her desire to help BR. That appears to have been the most important factor bearing on why she opted to ring the appellant several times, to seek his assistance. They could assess the loyalty factor and the fear factor. Several times, she spoke of acting as she did because she was scared, and of the threats leading to that, threats made by the appellant not only as to her, but also as to BR and their children. They were in an excellent position to assess how realistic they appeared to be, whether she was scared, and to what degree.

This was not a case where there was documentary material of any significant source of independent reliability, which showed the complainant to be clearly wrong in any significant respect. There were merely some inconsistencies of the kind that sometimes seem to appeal only to an advocate as troubling, but would not be so seen by a jury. There was no one significant weakness, and the combined effect was not such as to cause any concern as to the safety or dangerousness of the verdict of the jury. In this court, in accordance with the principles spelt out in M v R, each of the matters raised on behalf of the appellant has been reviewed separately and all in combination, in conjunction with a review of all of the evidence against the appellant. The result of that review is that this court is satisfied, upon the whole of the evidence that it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty as charged. For those reasons, the appeal was dismissed.