R v Coombes[2012] QCA 157

SUPREME COURT OF QUEENSLAND 

[1] MARGARET McMURDO P:  I agree with Margaret Wilson AJA’s reasons for dismissing this appeal.

[2] FRASER JA:  I have had the advantage of reading the reasons of Margaret Wilson AJA.  I agree with those reasons and with the order proposed by her Honour.

[3] MARGARET WILSON AJA:  The appellant was tried on five counts of rape of the complainant.  He was acquitted of the first count, and convicted of the other four.

[4] He filed a notice of appeal against conviction on the ground:

“That the verdict of the jury was unsafe and unsatisfactory”.

[5] He was self-represented on the hearing of the appeal.  In his written and oral submissions, he relied on three grounds of appeal:

1. that the verdicts were inconsistent;

2. that the trial judge erred in not giving a discreditable conduct direction; and

3. that the trial judge erred in admitting the evidence of Nigel Wright.

Count 1: 10 October 2007 - oral sex at the cemetery

[6] The complainant gave evidence as follows.

[7] She was a single mother with three teenage children – a boy aged 17, a girl aged 16 and another boy aged 14.  She first met the appellant through her daughter’s boyfriend who was his neighbour.  She referred to the appellant as “Rocky”.

[8] The complainant was briefly in a relationship with Noel Hardes: they lived together in her house for a few weeks.  After the relationship ended, Hardes moved out, but they remained friends.

[9] Hardes was involved in setting up a drug deal with the appellant and others including Jake (a friend of the complainant’s elder son) and a brother of her daughter’s boyfriend and his partner, as a result of which the appellant was out of pocket to the tune of $5,000.  He was angry about this, and wanted to contact Hardes.

[10] On 26 September 2007 the appellant and another male turned up at the complainant’s house.  Jake and her elder son went out to speak to them, the complainant and Hardes remaining inside.  The complainant heard a commotion outside, including noises like slapping.  She went out and observed Jake kneeling on the ground and the appellant standing over him, and she saw the other male and her son who was standing at the bottom of her stairs.  She gave this evidence in examination-in-chief:

“Did you hear Rocky say anything at that stage?-- Only to Jake that he cost him a lot of money and that if he didn't fix the problem with their situation that he was going to take the car and he knew where his family lived.

Did you observe anything about Jake?-- Just that the side of his face was red and he was a little upset.

How was it that Rocky said that to Jake? Those words that you just said he said to Jake, how did he say them?-- He - he was a little - little annoyed. He wasn't yelling, but the tone - the tone of his voice, he was very annoyed.

And what happened after Rocky said that?-- They were looking - they were - Rocky wanted to leave and said he couldn't find his car keys so they were looking for his keys on the grass, and they were in his pocket, and him and the fellow ended up leaving.”

[11] The next morning the appellant pulled up outside her house.  Hardes got in the car with him and they left.  Hardes returned that night.  The next day she was taking the rubbish out when the appellant pulled up.  She passed on a message from Hardes:

“That Noel had felt bad about what happened in Ipswich the day before, and he has a shipment coming up and he was going to give him three kilos of pot for - for what happened in Ipswich because he felt bad.”

[12] On 9 October 2007 the appellant telephoned the complainant.  He told her that “the heavies” would be coming to her place the next day, as hers was the only address they had for Hardes.  The appellant went to the complainant’s house where she gave him a list of addresses for Hardes.  Shortly before he left, they were on the verandah where he touched her in the groin area.  She backed away from him.  Then he got on his pushbike, pulled down his zipper, and left.

[13] Later that evening the appellant telephoned the complainant and inquired whether she “suck[ed] cock”.  She replied that she did, although she had not done so for a long time.  The conversation continued:

Appellant:“Well you’re going to suck my cock.”

Complainant:“Oh, is that right?”

Appellant:“I’ll call you.”

Then he hung up.

[14] The next morning, the appellant called the complainant and told her he was going to have sex with her.  She said:

“No, I’m not.”

He became angry, telling her that he was going to have oral sex with her, and that he would call her back.

[15] The appellant and Hardes were to meet at the local train station at 6.00 pm when Hardes was to give the appellant some money.  The appellant wanted to see the complainant beforehand.  As a result of some text and phone communications, they agreed to meet at the cemetery, which was about halfway between her house and the station.  She gave this evidence in examination in chief:

“And what did you understand you were going to meet him for?-- I honestly thought I was either going to be, like, collateral or I'd get a smack in the mouth, or ultimately have to do something that I didn't want to do.

Why did you think that?-- Because of the whole situation, just everything that had gone down over the last few days.

What sort of things? This is as it relates to Rocky?-- To Rocky. You - you can't say no to Rocky and - and the more he kept telling me I was going to have sex with him, the more I'd say no and the more cranky he would get in his voice. And I didn't want to push him to the edge where he'd, like, get violent with me either. And when I went down to the cemetery, I said that I wasn't doing anything. He said - he said, ‘Doesn't matter, you're still going to suck my cock anyway.’

So what time was it that you arranged to meet him down at the cemetery?-- Was just - just before - just before dark because he rang me, it was around 5.30 because he rang me, said, ‘Meet me down there within 40 minutes’, and that would have put it just before dark because I got down there just before dark.”

[16] The complainant received a call from the appellant, who was already at the cemetery.  When they met up, he told her that Hardes was not turning up.  She told him that she was “not doing anything either”, to which he responded:

“Yes, yes, you are. You're going to suck my cock.”

He pulled his pants down and grabbed her head, forcing it down towards his groin, despite her protestation.  Over about 10 minutes, he forcibly pulled her head backwards and forth with her mouth over his penis until he ejaculated in her mouth.  She gave this evidence in examination in chief:

“And how did it end?-- He - he then goes, ‘This did not happen. Are we cool? I'll call ya’, and - and I just – I just walked off. I just walked off in shock and just went home.”

[17] The complainant did not tell anyone what had happened.

[18] In cross-examination the complainant accepted that the appellant wanted to meet up with her in part to talk about where Hardes was, but insisted that “something more happened”.  She rejected the suggestion that there was no sexual contact between her and the appellant.

Count 2: 12 October 2007 - oral sex Toohey Street

[19] The complainant gave evidence that two days after the incident at the cemetery the appellant called her and demanded that she meet him in 10 minutes on Toohey Street.  She protested that she was expecting people at her house, but he was insistent.  Toohey Street was a 10 minute walk from where she lived.  Her youngest child was asleep in the house.  As she was leaving, Nigel Wright, the friend she had been expecting, pulled up.  She gave Wright the keys, telling him she had to go down the road for a minute, that he should not let her son leave the house, and that he should wait for her to return.

[20] As she walked towards Toohey Street, the complainant saw the appellant on his pushbike.  He told her not to talk to him, but to follow him.  She said in evidence in chief that she walked behind his bike for “a good hour”, because she was scared of him.  In a little cul-de-sac, they entered someone’s yard through a side gate.  He told her to shut up, and despite her protestation, he angrily grabbed her by the back of the head and the back of the shoulder, pushed her down, pulled his pants down, and pushed her face on to his penis.  His conduct was more forceful than it had been in the incident at the cemetery, and it persisted for a longer time.  After ejaculating into her mouth, he verbally abused her, then rolled a cigarette and said:

“This didn’t happen. Are we cool?”

[21] She said in evidence in chief that she brushed grass off her side, and walked off, holding back tears.  The top of her back was sore.  When she arrived home “around maybe 11 maybe still in the morning”, Wright was still there.  He asked her if she was all right, to which she replied:

“Yeah, Rocky’s just hurt me.”

Wright asked where he was; she replied:

“Don’t worry about it”,

and asked where her son was.

[22] Later that day she accompanied Wright to the local police station about another matter.  She did not tell anyone at the police station about the two incidents in which the appellant had forced her to engage in oral sex with him.

[23] In cross-examination the complainant said that it took 10 to 15 minutes for her to walk from her house to where she met the appellant.  She confirmed her evidence in chief that she followed him for “a good hour”.  She said that after the incident it took her 15 to 20 minutes to walk home because she “was, sort of, a little bit in a state”.  In answer to defence counsel’s summation of her evidence that she was away from home for at least an hour and a half, she replied “Something like that.”  When he suggested it could have been as long as two hours, she replied “Maybe”.

[24] She rejected the suggestion that when she met up with the appellant that day they talked for only 10 minutes or so and that the conversation was all with respect to Hardes and the money that was owed.  She rejected the suggestion that there was no sexual contact between her and the appellant that day.

[25] She said she told one of the officers at the police station that the appellant was “dealing drugs to kids or getting kids to deal drugs for him”, that he was getting people to make false statements for him and that he was hurting people.  She wanted an officer called Terry Wyatt to do something about the appellant’s drug activities.

Counts 3, 4, 5: 18 October 2007 – oral sex in car, oral sex at back of red brick house, anal intercourse at back of red brick house

[26] The complainant’s evidence was that one evening the next week, a car pulled up at her driveway.  She went out to see who it was.  It was the appellant in a Commodore station wagon.  He was there to pick up her elder son.  She had a brief conversation with the appellant in which he asked her whether she had stopped fucking with herself yet.  He left with her son, and after dropping the boy at his friend’s place, he called the complainant.  He told her to get out the front, which she did because she was scared.

[27] In cross-examination the complainant said that her younger son was at home when the appellant picked her up.  She told the boy she was just going to the shop and asked if he wanted anything.  He requested an iceblock.

[28] The complainant’s account continued that the appellant told her to get in his car and to be quiet.  She got into the front passenger seat, and he drove about five minutes down the road, to the back of the local high school, near an overpass.  He told her she was to suck his penis again.  Despite her protestation, he pulled the car seat back, unzipped his pants, and grabbed her head and made her suck his penis.  When he had finished, he made some remarks about the complainant’s friendship with a man called Dean and said:

“I’m going to fuck you up the arse now because you are just a dirty slut.”

[29] The complainant said that the appellant drove to another housing estate, where he parked in the driveway of an empty house.  He made her follow him to the back of a red brick house.  He told her she was going to suck his penis again, grabbed her and forced her to have oral sex near a brick wall.  She continued in evidence in chief:

“Then he told me get up and pull my pants down and I was standing there and – and then he – he tried to have anal sex with me but it was hurting. I started screaming. He told me to shut the fuck up and be quiet, and – and then after he did that for a little bit, he, um, like pulled – pulled it – pulled – pulled his penis out of me bum and then made me suck his penis again. And then when that finished he said that none of this ever happened and just to shut up and follow him back to the car.”

She said that during the anal intercourse she was crying really loudly because it was hurting, and he told her to be quiet because he did not want anyone to hear.  She told him to stop it.  He stopped, and then forced her to suck his penis, ejaculating in her mouth.  After he had finished, she “spat it out on [her] jeans”; she spat into her hand, and wiped her hand on a leg of her jeans.

[30] The appellant told the complainant to follow her back to his car, telling her not to say anything.  At a set of traffic lights he spoke to a man who walked past, and then asked her if she wanted $5 to buy an iceblock for her younger son.  She was in a state of shock; he dropped her off at an IGA store.  She tried to ring a cousin and a friend; she walked past her friend Suzie’s house but she was not there. 

[31] When the complainant got home, her younger son was there.  Suzie and her young daughter were in the kitchen.  The complainant was in tears.  She said in evidence in chief that Suzie said:

“He’s done it again, hasn’t he?”

[32] She responded “Yep”, and told her what the appellant had done.  The appellant said in examination in chief that Suzie knew the appellant had been forcing her to have oral sex with him because he was angry about Hardes, her son’s friend Jake and “everything else”.  The complainant half filled a cup with salt and filled it up with water, and washed her mouth out.  Suzie asked her if she wanted to go to the hospital.  She said “No”, and asked Suzie to contact Detective Wyatt.  The detective was not working that day.

[33] The complainant said that the next day she made contact with her cousin who took her to the police station where she made a complaint.  A female detective took her to a hospital, where her genital and anal regions were examined, and some swabs were taken.

[34] The complainant refuted suggestions put to her in cross-examination that there was no sexual contact between her and the appellant in the car at any time, that the appellant did not drive down to the overpass area, that he did not drive to a housing estate of any kind, and that there was no occasion when he got out and had sexual contact with her at the back of a house.  She rejected the version of what happened that day put to her by defence counsel – that when the appellant pulled up at her house he called her over and there was some conversation in the car in which the appellant said he was “sick of everything, sick of the whole situation”, that he said he was under a lot of pressure from the people to whom he owed money, and that he was going to give them her address so that they could deal directly with her as they could not find Hardes.  She rejected the suggestion that she was upset with him, upset that people might be turning up at her house.  She rejected the suggestion that she asked whether it could be sorted out without telling these people where she lived.  She rejected the suggestion that the appellant said “no” and then dropped her off at the shops.

Suzie’s evidence

[35] Suzie said that in the first conversation the complainant had simply said that “he” had hurt her, without identifying the person.  On the second occasion, the conversation took place in the complainant’s kitchen.  The complainant was upset and very stressed.  She said that Rocky had “fucked her up the arse and made her suck his cock”.  She washed her mouth out with salty water and did other strange things, washing her face and shaking.  Suzie said she drove the complainant to the police station, either that day or the next day.

Forensic evidence

[36] The complainant told the Court that the last time she had intercourse before 18 October was on 13 October.  It was consensual intercourse with her friend Dean.

[37] A DNA reference sample was taken from the appellant.

[38] The doctor who examined the complainant at the hospital did not observe any injuries.  But he told the court that the absence of injuries neither detracted from nor supported the alleged assaults having occurred.  He took a number of swabs from the genital and anal areas, as well as an oral swab and a sample of blood.  He said he would not have expected seminal fluid in the mouth of someone into whose mouth another person had ejaculated more than 12 hours earlier.

[39] The swabs and blood sample were sent to the DNA Analysis Unit of Queensland Health Forensic and Scientific Services.  An incomplete, mixed DNA profile was obtained from the perianal swab.  The appellant was excluded as a possible contributor to that mixed profile.

Telephone evidence

[40] The following schedules showing mobile phone contact between the appellant and the complainant were admitted by the defence:

APPELLANT to COMPLAINANT

Sms

COMPLAINANT to APPELLANT

Sms

[41] The complainant gave a deal of evidence about telephone calls and text messages, some of it quite confused.  But the precise timing of calls as shown on these schedules was not put to her in cross-examination.  The schedules were tendered after her testimony was concluded.

Wright’s evidence

[42] Nigel Wright gave a statement to police.  He was subpoenaed to give evidence at the trial, but failed to attend at court.  He was located by police during the course of the trial, and said he wanted to withdraw his statement because he had received a threat.  There was no evidence before the Court of the precise nature of the threat.  It was not alleged that it came directly from the appellant, who denied any knowledge of it.  The prosecutor and defence counsel reached agreement that his statement should be put before the jury as evidence of what he would have said had he given evidence.  They were jointly of the view that this could be done by way of admission pursuant to s 644 of the Criminal Code.

[43] On the third day of the trial, the judge said to the jury:

“The situation in relation to the witness of Nigel Wright is that Mr Wright has been located and there has been agreement reached between the Crown and the defence that there isn't a requirement for Mr Wright to actually give evidence. But what will be happening is my associate will be reading to you what the defence accept was Mr Wright's evidence in relation to this matter. So that will be - being done by way of a formal admission, so the defence will formally admit that that is the evidence that Mr Wright gives in respect to this matter, and I'll say something to you after those formal admissions have been made.”

[44] The associate then read the evidence as follows:

“I am a single man 28 years of age and reside – reside at an address known to police. I know Wayne Rocky Coombes. I met him through school in about 1991. I hadn't seen him since school until about two weeks ago when he turned up at [the complainant’s] place. [The complainant] is a friend of mine who I met through church about three years ago. I had not planned on visiting [the complainant] that day. However since I was over that side of town anyway I dropped in to see her. Sometime in the morning of Friday the 12th of October 2007, I think it was about 10 a.m., I know [D], [the complainant’s] son, was still asleep.

I arrived at [the complainant’s] place just as she was leaving. She said, 'I'm going to meet a friend, I'll be back in half an hour.' She was carrying a handbag which was about 30 to 35 centimetres long and about 15 to 20 centimetres wide. She then gave me the keys to the house and I went inside. About half an hour to 45 minutes later, [the complainant] returned home. She was very upset to the point that she was nearly in tears. She went to her room and put her bag in there and came out to the kitchen. I said, 'What's wrong?" She said, 'I hate that fucking Rocky.' I said, 'What happened?' She said, 'Don't worry about it', then left it at that. [The complainant] then made a cup of coffee and we started talking about church and other things. On Tuesday the 16th of October 2007, or Wednesday the 17th of October 2007, I was at [the complainant’s] place during the evening when she told me, 'Rocky hit me.' I said, 'How did it happen?', and she said, 'Don't worry about it.'”

[45] The trial judge said to the jury:

“Now, ladies and gentlemen, as I said that is a formal admission by the defence that that is the evidence of Mr Wright would give and the purpose of that admission is that Mr Wright, therefore, doesn't have to be called to give that evidence, and is also so you can then consider Mr Wright's evidence.

Keep in mind, of course, there's no admission about the truth or accuracy of Mr Wright's evidence. It's just admission that that's the evidence he could have given had he come to Court. It's a matter for you whether you accept that evidence just as it is a matter for you whether you accept any of the other evidence that you have heard. And it's a matter for you whether you accept the accuracy of that evidence. It's simply something you can take into account when you retire to consider your verdicts and when you're assessing all of the evidence as you will be required to do.”

[46] In his summing up his Honour dealt with formal admissions and said:

“And the fourth admission was, in respect of the evidence that was read out to you, that Nigel Wright gave, as I have said, that admission is to that is his evidence, not as to its truth or accuracy. That is a matter for you to assess when you are assessing all of the evidence in this case.”

[47] During the course of their deliberations, the jury sent the judge a note in these terms:

“It was our understanding that the admission of Nigel Wright would be provided to us as evidence.”

The judge said to them:

“At the time that the admission was made I thought I had indicated to you that this wasn't an admission as to the truth or accuracy of it. It was an admission of this is the evidence that he would give if he sat in the witness box. As you don't have a copy, a written copy, of any other witnesses' evidence when they sat in the witness box, it was never intended that you would have a copy of it and that's why it wasn't marked as an exhibit. Rather it was simply read out.

If you want, because you didn't have the opportunity to see the person, I can read it to you again if you would like that, but otherwise it wasn't intended that you would get a copy of it. You should treat it like the evidence of any witness, you heard it and you assess it having regard to the other evidence as well.

Do you require it to be read again?”

His Honour re-read the statement to the jury, and said:

“So that was the contents of Nigel Wright’s evidence.”

[48] The appellant sought to adduce further evidence in the appeal.  In one of his handwritten statutory declarations of 6 February 2012 the appellant said:

“Legal Aid Barrister Mr Mark Green manipulated me into accepting the testimony of Nigel Wright in a written form during my trial in the Supreme Court of Queensland this year. I informed him countless times that: wanted Wright to appear in person: wanted him to endure the inconvenience of a day at court if anything, given that: know his statement is fabricated. Mark Green gave me the impression that something positive would eventuate if we proceeded this way. I quote Mark Green, ‘We really should see what he has to say’, ‘I’m curious why he’s refusing to show up’, ‘His version of events is different to [the complainant’s] and the jury will know that’. Other things were said which I can’t accurately relate, but Mark Green insinuated that this could only help my case. Even after this: still protested, and David Law (solicitor) got involved and elaborated on Mark Greens’ desire to proceed. They made me feel like I was letting then down by not agreeing with them.”

[49] In an affidavit sworn on 1 November 2011 in response to allegations in the appellant’s outline of argument, the barrister Mr Green said:

“6.I recall that there was initially an issue with Mr Wright either having not been located or not responded to the subpoena at trial.  I recall that during the trial I was advised by the prosecutor that Mr Wright had been located.  I was advised that Mr Wright had told the police that he had received a threat against him giving evidence in the trial, although it was not alleged that threat had come directly from Mr Coombes.  Mr Coombes denied any knowledge of such threat.  I recall asking for clarification regarding what Mr Wright now recalled with respect to that matter and was advised Mr Wright now claimed he had no recollection of the matter.

7.This was subsequently discussed with Mr Coombes.  I recall specifically discussing the issue with respect to the allegation of a threat being made against Mr Wright and the concern that could be mentioned before the jury (as an explanation for his claim to have no current memory).  I recall also discussing with Mr Coombes the benefit of having the evidence admitted in the form in which it was, as the prosecutor was willing to excise parts of his evidence.

8.I had represented Mr Coombes at his committal hearing for the subject offences, and I had cross-examined Mr Wright at those proceedings.  The proposed evidence to be placed before the jury on the trial included parts of Mr Wright’s statement to police, and some part of his evidence during cross-examination.

9.I recall discussing with Mr Coombes why the evidence should be admitted – principally because it offered some inconsistency with the account given by the complainant.  I recall Mr Coombes indicated that he understood the benefits of having the evidence admitted in the form in which it was in, and initialled the draft document after agreeing with the proposed course to be undertaken.

10.I recall having discussed the matter with the prosecutor, and collectively it was decided that Mr Wright’s evidence could be placed before the court in the form it was in without calling Mr Wright to give evidence.  The evidence of Mr Wright was read to the jury by the Judge’s associate.”

[50] The appellant cross-examined Mr Green.  I accept Mr Green’s evidence that although the appellant initially offered some resistance to the process by which Wright’s evidence was ultimately admitted, he agreed to that course after its benefits were explained to him. 

Was Wright’s evidence wrongly admitted?

[51] Section 644 of the Criminal Code provides:

“(1)An accused person may by himself, herself or the person’s counsel admit on the trial any fact alleged against the person, and such admission is sufficient proof of the fact without other evidence.

(2)The Crown may by its counsel admit on the trial of an accused any fact relevant to the trial where the accused is in agreement with this being done, and such admission is sufficient proof of the fact without other evidence.

(3)In this section –

trial also includes, and it is hereby declared to have always included, proceedings before justices dealing summarily with an indictable offence.”

[52] There were inconsistencies between the complainant’s evidence and Wright’s with respect to what occurred on 12 October 2007.  The defence wanted his evidence before the jury in order to contradict the complainant’s evidence in a way which attenuated her credit.  It had her admission that she had not told Wright of the sexual assault, but no evidence as to other inconsistencies between her evidence and that of Wright.  The prosecution could point to Wright’s statement in support of the complainant’s evidence that she was upset just after seeing the appellant.

[53] I have difficulty accepting that the unsworn statement of evidence Wright would have given had he been called was a fact (or facts) alleged against the appellant within subsection (1) of s 644 or a fact (or facts) relevant to the trial within subsection (2).  In my view it was inadmissible hearsay.  The purported reliance on s 644 was misconceived.

[54] However, the appellant consented to the course that was adopted, because it was thought to be to his forensic advantage.  The judge very clearly explained to the jury the limited extent of the “admission”.  On appeal counsel for the respondent submitted that the appellant was bound by his conduct at the trial.

[55] In R v Radford[1] the Victorian Court of Criminal Appeal considered the evidentiary value of hearsay evidence admitted without objection.  The Court held that where counsel makes a deliberate choice to refrain from objecting to hearsay evidence and addresses the jury on the assumption they could, were they minded to do so, accept the truth of what was asserted, he or she may be taken to have waived the objection.[2]

[56] In R v McCosker[3]this Court considered whether a defendant in a criminal trial may waive the requirement that all members of the jury be seen to be impartial.  Of present relevance, Keane JA said:

“[5]Use of the terminology of waiver by way of a shorthand description of the legal consequences of an accused person allowing a trial to proceed without taking a point about a procedural irregularity may tend to blur the focus on the point that the principle in issue is concerned with the fairness of the trial. Where a party knows of a procedural irregularity, but knowingly stands by and takes his or her chances with the verdict, rather than calling a halt to the proceeding, there is nothing unfair in holding that party to his conduct.”

[57] The appellant complained that even if the evidence of Wright was before the jury on his instructions and otherwise admissible, its admission into evidence was unfair and confused the jury.

[58] The defence wished to use Wright’s statement to contradict the complainant on certain points in her evidence, and to point out that she did not make a complaint of sexual assault immediately after the event alleged in count 2.  But Wright’s evidence was that she was upset, almost crying, and that she complained that the appellant had hit her.  I am unpersuaded that it was unfair to allow Wright’s statement to go before the jury, given the trial judge’s directions in relation to it.

[59] In the present case there would, in my view, be nothing unfair in holding the appellant to his conduct at the trial.  I am unpersuaded that the trial judge erred in allowing Wright’s statement to be put before the jury.

Map

[60] After the conclusion of counsel’s addresses, and before the judge summed up, the jury requested a map.  Their note read (relevantly):

“Please may we have a map showing relative location of [the complainant’s] residence and the Toohey Street and red brick houses and the station and cemetery.”

Neither counsel had any objection to the jury’s being provided with a map.  After the conclusion of the summing up, the prosecutor produced a map which the judge discussed with counsel.  He directed counsel to confer and mark the locations on the map by way of numbers, with a table explaining the code.  The map was then taken into the jury room by the bailiff, along with the exhibits.  The appeal record did not contain a copy of that map.

[61] On the hearing of the appeal the appellant produced a map of the general area and a trip planner obtained from the RACQ.  In cross-examination of his defence counsel, he suggested that the most direct route from the complainant’s house to the place where the second rape occurred was only 330 metres, and that her evidence about the route she took did not accord with roads marked on the map.  He criticised his counsel for not having presented this sort of material to the jury.

Failure to give discreditable conduct direction

[62] In his written submissions the appellant said:

“The learned judge failed to give directions to the jury as to the permissible use of evidence disclosing other discreditable conduct, nor were they warned against misuse of that evidence.  This included evidence that the complainant had heard an alleged assault by myself upon ‘Jake’ and also was ‘aware’ of my background, said to be relevant to the complainants submission to myself out of fear during the alleged offences.  My defence counsel did not argue for the exclusion of this evidence.  The complainant also gave ‘hearsay’ evidence of an uncharged sexual assault which was not challenged.”

[63] The trial judge did not give the jury any direction upon how they might use this evidence.  Neither counsel had requested that a “discreditable conduct direction” be given, and at the conclusion of the summing up neither raised any complaint about its absence.

[64] On the hearing of the appeal counsel for the respondent submitted that this evidence was a necessary part of the narrative, and that it was relevant and admissible in the prosecution case to explain why the complainant would otherwise continue to see the appellant, to acquiesce in his requests, and to go along and meet him after the first offence occurred.  He submitted that, in the circumstances of this case, it was not necessary for the trial judge to direct the jury on how they might use the evidence: he submitted:

“The risk of a jury reasoning that a drug dealer is more likely to be a rapist is very much less significant than where the discreditable conduct involves something which shows an indecent sexual interest in a child, for example, on charges of indecent dealing.  So, the need for such a direction was very much less prominent, given the distinction between the allegations on trial with what was said to be the discreditable conduct that provided the background.”

In response to a question from the bench about the risk of planting an idea in the jury’s mind which might otherwise not have occurred to them, counsel for the respondent said:

“Well, that's quite so.  Yes, the jury might not otherwise have made any connection between one form of criminal conduct and another until the negative suggestion is implanted in their mind.”

He submitted that because no direction had been sought, it was incumbent on the appellant to demonstrate that, in its absence, a miscarriage of justice had resulted.

[65] It is instructive to review what the prosecutor and defence counsel said to the jury about this evidence, and the extent to which it was mentioned in the summing up.

[66] In her address to the jury the prosecutor referred to the incident involving the appellant and Jake on her front lawn on 26 September 2007, and to his visit to her in the evening of 9 October 2007 when he said “the heavies” would be coming round the next day unless she gave him some addresses for Hardes.  The prosecutor said to the jury:

“All of her conduct, ladies and gentlemen, was consistent with someone who was acting to protect herself and protect her children from someone who she was scared of and had very good reason to be scared of given what she had seen and what she knew.”

Later the prosecutor said:

“My suggestion to you is that when you look at the situation that [the complainant] was in, look at the circumstances of what had occurred, what had led up to these offences occurring, what was acting on her mind, things that the defendant had put there, the fear, the concern, that when you look at all of that and you look at her behaviour, you look at what happened around these events and you look at what other people observed about her around these events, that all of that supports that these offences did occur. It's a plausible version of what happened.”

[67] In his address defence counsel said:

“So we have in this particular case a bit of history or background given to you and so you know that the people involved, witnesses involved, are people who have had contact with the police. For example, you'd heard Mr Wright had to attend the police station to have his fingerprints taken. You heard that [the complainant] met her friend Dean also at the police station. You've heard evidence in relation to drug deals and things of that kind. But again, it would be wrong for you to think that the burden of proof is in any way weaker because, ‘Well, look, they're all criminals so we don't really care what might happen to them. We don't apply the same standard. We don't really care about them as citizens’, and we might think, ‘Well, they get whatever is coming to them.’ That would be again, as my learned friend said, completely inappropriate. It would be completely inappropriate for you to bring those sorts of feelings either against the accused man in the dock or against [the complainant] or against any other witness. It is information obviously which is relevant to you in understanding what took place and understanding the background of it all, but it's not evidence which in any way impacts upon your duties and responsibilities and obligations.

The background doesn't tell you a lot, but it tells you that there's a lot going on, and it might perhaps explain to some degree why these people are in contact with each other, and ultimately I'd suggest to you that it does inform things such as [the complainant’s] demeanour and why she is upset about certain things, why things might be distressing to her to the point where she is - appears to others to be upset, but it had nothing to do with anything that the accused man did to her.”

[68] In summarising the respective cases, his Honour said:

“The prosecution says that, in assessing her evidence, you would have regard to the circumstances in which she was and what she said was the situation when the defendant came to contact her. That is, there had been this incident in respect of money and her expartner and she was in a situation of being a single mother who felt scared and threatened and that this makes explicable why she agreed to go and meet the defendant on these three occasions.”

[69] His Honour had earlier reminded the jury that, in respect of what occurred on 18 October 2007, the complainant had rejected the suggestion that she had a motive to lie – that the defendant had told her he was going to pass on her details to those who were looking for Hardes.  His Honour directed the jury that if they rejected the motive to lie relied on by the defence, it would not follow that the complainant was telling the truth, and reminded them that it was for the prosecution to satisfy them beyond reasonable doubt that she was telling the truth.

[70] It was common ground that the appellant had been left out of pocket as a result of some drug deal involving Hardes, and that he was under pressure to locate Hardes.  The trial judge ought to have told the jury that if they did not accept the complainant’s evidence of what occurred on 26 September and 9 October 2007, that finding would bear on whether or not they accepted her evidence relating to one or more of the rape charges.  His Honour ought to have directed the jury that if they found this discreditable conduct did occur, they could use it only as an explanation why the complainant acceded to the appellant’s requests for meetings.  His Honour ought to have told the jury that they must not reason that the appellant’s having engaged in this discreditable conduct made it more likely that he committed the sexual offences alleged.

Inconsistent verdicts

[71] The appellant submitted that the guilty verdicts on counts 2 – 5 were inconsistent with the not guilty verdict on count 1.  The issue for this Court is whether, by reason of that inconsistency, the convictions on counts 2 – 5 are unsafe or unsatisfactory.[4] 

[72] In MacKenzie v The Queen[5] Gaudron, Gummow and Kirby JJ said that “the test is one of logic and reasonableness”, and cited this passage from the judgment of Devlin J in R v Stone:[6]

“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.”

After referring to the law’s respect for the functions of juries and the Courts’ reluctance to accept a submission that verdicts are inconsistent in the relevant sense, their Honours said: [7]

“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.[8] 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.[9]”

[73] Holmes J (as her Honour then was) summarised some of the factors which may be considered in determining how verdicts may rationally differ in R v Smillie:[10]

“1. The quality of the evidence

The jury may have found the quality of the crucial witness’ evidence variable while accepting it as generally truthful. For example, the witness may have exhibited faulty recollection on some points or been able to provide more particularity about the details of some events than others. A complainant may have failed to mention some offences in his or her original complaint, giving rise to a question about the accuracy of later recollection. The witness may have been given to exaggeration in some instances, or there may have been an inherent unlikelihood to some aspect of the evidence, which casts doubt on its accuracy in those respects, but not of the witness’ general honesty. Or the circumstances in which the offence is alleged to have occurred may raise the real possibility of mistake by the complainant as to the nature of what has occurred.

2. The existence of contradictory evidence on some matters

There may in respect of some counts be evidence contradicting the crucial witness’ account such as to explain a variation in the jury’s verdict. Whether the force of the contradictory evidence goes beyond demonstrating a discrepancy explicable as mistake and warranting a doubt on the part of the jury, so that it must be regarded as undermining the credibility of the witness (as was the case in Jones v The Queen[11]) is a question of fact in each case.

3. The existence of corroboration on some counts

Different verdicts may be explicable on the basis that the witness’ evidence was supported in respect of some counts but not others, by, for example, admissions by the accused.[12]

4. The “merciful” verdict

As recognised in MacKenzie v The Queen and R v P,[13] a jury may have decided that it would be oppressive to convict on all charges; that, for example, in a case where there are multiple counts, conviction on a number may sufficiently reflect the culpability of the accused.”

[74] As counsel for the respondent submitted, the explanation for the inconsistency is simply that the only evidence on count 1 was the complainant’s; there was no supporting evidence of any kind.  In relation to count 2, there was Wright’s evidence.  Although there were some inconsistencies between the complainant’s account of the circumstances in which she left the house and those relating to her return, their respective accounts were consistent at least in that she left the house to meet someone and she returned angry with the appellant.  In relation to counts 3, 4 and 5, there was evidence from Suzie that the complainant was upset and made a preliminary complaint about those counts to her.

[75] In my view the verdicts can be reconciled, and the appellant has failed to show that the inconsistency resulted in the convictions on counts 2 – 5 being unsafe or unsatisfactory.

Conclusion

[76] In R v Handley, a case involving an appeal against conviction on the ground the verdict was unsafe and unsatisfactory and could not be supported having regard to the evidence, Muir JA said:[14]

“[56]The question to be determined on appeal is whether it was open to the jury upon the whole of the evidence to be satisfied beyond reasonable doubt of the appellant’s guilt.[15] In answering that question, this Court must have regard to the advantage enjoyed by the jury as a result of seeing and hearing the witnesses and thus being able to evaluate what they had seen and heard as part of a continuing process supplemented by addresses and the summing up.

[57]It was well open to the jury to assess the conflicting evidence and the credibility and reliability of the various witnesses. That is a jury’s traditional role.”

[77] The main thrust of the appellant’s evidence in relation to all the charges was not shaken in cross-examination.  There was the background of Hardes’ involvement in a drug deal that had left the appellant $5,000 out of pocket, the incident on 26 September involving the complainant, her elder son and Jake, and the appellant’s demands that she tell him where Hardes might be found.  The sexual conduct she described was crude, degrading and inherently distressing.  It was open to the jury to consider that inconsistencies and other weaknesses in her evidence, particularly in relation to times, were explicable in all the circumstances.

[78] The trial judge did not err in allowing Wright’s evidence to be put before the jury.

[79] The appellant criticised his counsel for not cross-examining the complainant about count 2 by reference to the telephone records.  However, the weakness in her evidence as to times was adequately brought out in the cross-examination that did take place.

[80] The appellant has not shown that the map which was provided to the jury after the summing up was inadequate for their purposes.

[81] While I consider that the trial judge ought to have given a direction about discreditable conduct, I am unpersuaded that his failure to do so resulted in a miscarriage of justice.

[82] In all the circumstances, I would dismiss the appeal.