New South Wales District Court CITATION: R v McGuire [2009] NSWDC 245 HEARING DATE(S): 31 August - 3 September 2009 JUDGMENT DATE: 4 September 2009 JURISDICTION: Crime JUDGMENT OF: Murrell SC DCJ CATCHWORDS: CRIMINAL LAW - special hearing before judge alone - developmentally delayed accused - sexual intercourse without consent and break and enter to commit serious indictable offence charges - sexual intercourse by partial penetration - abuse of process - double jeopardy - stay of proceedings LEGISLATION CITED: Crimes Act 1990 ss 61I and 112(2) Mental Health (Forensic Provisions) Act 1990 ss 16(1), 21(3)(a) and 22. Island Maritime Ltd v Filipowski; Kulkarni v Filipowski [2006] HCA 30 CASES CITED: Pearce v The Queen [1998] HCA 57 Regina v Lang [2008] NSWCCA 41 PARTIES: Regina Herbert Robert MCGUIRE FILE NUMBER(S): 2007/00006370 COUNSEL: M Fernandez for the Crown T Evers for the Accused SOLICITORS: NSW Director of Public Prosecutions Mark Douglass Criminal Law 1 On 27 November 2008, the Mental Health Review Tribunal made a determination under section 16 (1) of the Mental Health (Forensic Provisions) Act 1990 (the Act) that the accused was unfit to be tried. The accused suffers from an intellectual disability. He has a full-scale IQ of 67, which places him in the bottom 1% of the population. He has a limited attention span, his verbal skills are particularly weak and he cannot grasp complex concepts. 2 On 4 February 2009, the Director of Public Prosecutions determined to take further proceedings. A special hearing was convened and proceeded before me sitting as a judge alone. 3 On 31 August 2009, the accused was arraigned on the following charges. (1) On 4 April 2006 at Nowra, have sexual intercourse with the complainant without her consent and knowing that she was not consenting (penile/vaginal intercourse). (2) On 4 April 2006 at Nowra, have sexual intercourse with the complainant without her consent and knowing that she was not consenting (penile/anal intercourse). (3) On 4 April 2006 at Nowra, have sexual intercourse with the complainant without her consent and knowing that she was not consenting (second episode of penile/vaginal intercourse). (4) On 4 April 2006 at Nowra, break and enter the complainant's dwelling house, ie offence (1) knowing that a person was present and in the dwelling. 4 Pursuant to section 21(3)(a) of the Act, the accused was taken to have pleaded not guilty to each charge. 5 The verdicts available on a special hearing include those set out in section 22 of the Act. Relevantly, in this case, the question under s 22 is whether, on the limited evidence available, I am satisfied beyond reasonable doubt that the accused committed the alleged offence or an available alternative offence. 6 I set out the principles of law that I apply and the findings of fact upon which I rely. General Principles 7 The four charges upon which the accused is tried are being heard together as a matter of convenience. I must consider each charge separately and return a separate verdict of guilty or not guilty on each charge. 8 The Crown has the task of proving the accused's guilt beyond reasonable doubt. The accused is presumed to be innocent of each charge unless and until the Crown proves him guilty beyond reasonable doubt in relation to that charge. Suspicion must play no part in my function as the judge of the facts. On the limited evidence available, if I feel that the accused may be guilty and even if I feel that he probably is guilty, as long as I have a reasonable doubt about his guilt on a particular charge I must return a verdict of not guilty on that charge. 9 The Crown does not have to prove the truth of each statement of each Crown witness. What the Crown must prove beyond reasonable doubt is each legal element or ingredient of each charge. 10 I am aware that in making findings of fact I must rely upon the evidence, ie the evidence given by the witnesses and the evidence contained in the exhibits. I must apply my common sense. 11 In this hearing, in the case of each charge, the Crown case depends upon the evidence of one person, the complainant. While there is circumstantial evidence tending to support her testimony, she was the only Crown witness to give direct evidence about the central events. Therefore, I must scrutinise her evidence on each charge very carefully before determining whether I am prepared to accept her evidence on the critical matters. I must examine her evidence in the context of all the other evidence. I must consider any inconsistencies, both within the complainant's evidence and between her evidence and statements that she made on other occasions. 12 My verdicts must be logically consistent. Consequently, if I have a reasonable doubt about the complainant's evidence on any charge then I must consider whether that causes me to have a reasonable doubt about her evidence on other charges. 13 As the onus is on the Crown to prove each charge beyond reasonable doubt, while I may consider whether the complainant has a motive to lie or a reason to be mistaken, the lack of apparent motive or reason cannot remedy any deficiency in the Crown case. The issue is whether, in relation to each charge, the Crown has proved the charge beyond reasonable doubt. 14 The complainant was entitled to give evidence by CCTV and chose to do so. That is standard procedure. I give her evidence no greater or lesser weight because the evidence was given by CCTV. I draw no inference adverse to the accused. 15 The accused did not give evidence. It is not for the accused to prove his innocence but for the Crown to prove his guilt beyond reasonable doubt. The accused was entitled to remain silent and I draw no adverse inference from his election to do so. If it was necessary to explain the election - and it is not - the accused's intellectual disability would provide more than adequate explanation. The Complainant and the Other Witnesses 16 Having carefully scrutinised the complainant's evidence in the context of all the evidence and applying my common sense, I conclude that the complainant's honesty is beyond reproach and that she was a very reliable witness. The complainant's evidence was internally consistent. There was no significant inconsistency between the complainant's evidence and the other evidence. The complainant's evidence fitted well with the evidence of other witnesses concerning the accused's conduct before and after the alleged offences. 17 In a number of respects, the other evidence supported that of the complainant. There was evidence of early complaints to the police and Mrs Fletjar of "rape" and to Dr Woods of penile/vaginal and penile/anal rape. There was evidence of associated distress. There was evidence from Dr Woods regarding bruising (consistent with grabbing and finger pressure), elbow grazing (consistent with the complainant injuring her elbows while lying on her back on the carpet), inflammation in the genital area (consistent with recent penile/vaginal penetration) and an anal tear (consistent with anal intercourse). There was evidence of an admission by the accused supporting the complainant's evidence that, after the accused left her premises, she found that her front screen door had been damaged. 18 Although the other lay witnesses were friends or acquaintances of the accused, the evidence which each gave was consistent with the evidence of the others. I find that each was an honest witness who recounted the events as best he or she recalled them. 19 Dr Woods conducted a thorough examination of the complainant. There appeared to be a proper basis for the opinions that she expressed. Her evidence in relation to bruising was supported by police photographs. Counts 1, 2 and 3 20 In order to prove each of counts 1, 2 and 3, the Crown must prove each of the following elements beyond reasonable doubt. (1) The accused had sexual intercourse with the complainant. In law, sexual intercourse includes penile penetration of the female genitalia. Penetration to any extent (even a small extent) amounts to sexual intercourse in law. (2) The complainant did not consent to the particular act of sexual intercourse. A person consents to sexual intercourse if the person freely and voluntarily agrees to the sexual intercourse. (3) The accused knew that the complainant did not consent to the sexual intercourse. The Crown may prove the relevant state of mind by proving that the accused actually knew that the complainant did not consent, or by proving that the accused was reckless about whether the complainant consented. An accused is reckless if he is aware that the complainant may not be consenting but carries on, not caring one way or the other whether the complainant consents. The alleged offences predate the operation of s 61 HA of the Crimes Act 1900 , which gives an extended meaning to this element. 21 At about midday on 4 April 2006 the accused went to premises adjacent to the complainant's residence. In the period until about 4:30 or 5 p.m. he drank with two acquaintances, consuming at least eight stubbies beer and probably more. In the course of the afternoon, the accused observed the complainant in the next-door premises and said words to the effect of "she would be all right for a girlfriend". He became somewhat intoxicated and at one stage was "nodding off". When he left the premises he was "a little bit intoxicated" but was "not overly drunk" and was capable of walking. He saw a cat and was told that it belonged to the complainant. He picked up the cat and walked in the direction of the complainant's residence. 22 It was the complainant's evidence that a man (who must have been the accused) appeared on her front porch and asked to come in for a drink. According to the complainant's police statement "he spoke of wanting to be with (the complainant) and wanting to be (her) friend". The complainant refused the request to come into her house. The man was drinking a stubbie of beer. Later, the police seized an empty stubbie from the complainant's front porch. It was found to contain the accused's DNA. 23 The accused went to the side of the house and then to the backyard, where he played with the complainant's young daughter. The complainant removed washing from the line and took it into the house. The complainant's daughter came into the house, followed by the accused. The complainant asked the accused to leave the house but he refused to do so. The complainant walked to the front of the house, successfully enticing the accused out of the house. The complainant went back inside, securing the latch on the front screen door. She went to the kitchen to locate a key so that she could lock the front screen door. 24 When the complainant was standing in her living room, the accused grabbed her by the arms and told her to be quiet. He put a hand over her mouth. The complainant bit the accused on the hand. The complainant found herself lying on her back on the floor. The accused pulled his pants down to his knees and pulled her pants down, possibly to her knees, and proceeded to have penile/vaginal intercourse, causing the complainant to feel some pain. The complainant estimated that the intercourse continued for between five and fifteen minutes. The complainant was struggling. She managed to get onto her hands and knees and reached for the telephone, intending to dial for assistance. However, she discovered that the lead had become disconnected. She hit the accused over the head with the telephone. He was undeterred. She began to search for her mobile telephone. As she was doing so, the accused commenced penile/anal intercourse, which continued for five to ten minutes. The complainant believes that the accused did not ejaculate. 25 The complainant found herself with her back to the floor. The accused "tried it again". It was the complainant's evidence that the accused put his penis back into her vagina "quite a few times". "Almost immediately" that the accused "tried it again" the complainant succeeded in yanking his penis. It was soft. After words were exchanged, the accused left, saying that he would "come back next week to finish the job". 26 The complainant dressed, comforted her daughter and called the police. 27 As stated above, the complainant was a very reliable witness. I accept her evidence in relation to counts 1,2 and 3. The evidence establishes beyond reasonable doubt that the accused had penile/vaginal intercourse with the complainant (count 1), followed by penile/anal intercourse (count 2). 28 In relation to count 3, on behalf of the accused it was submitted that the complainant's evidence that the accused "tried it again", that the complainant quickly grabbed the accused's penis and that the penis was soft would cause me to doubt that there was sexual intercourse, particularly as the complainant would have been traumatised by then and the trauma may have impacted on her recall. 29 As the third episode was of short duration and having regard to the evidence about the state of the penis, I harbour a doubt about whether there was vaginal penetration. However, sexual intercourse occurs when there is penetration of the female genitalia (including the outer genitalia) to any extent. In relation to the third count, I am satisfied beyond reasonable doubt that there was, at least, penetration of the outer genitalia to some extent. 30 I have no doubt that the complainant did not consent to any sexual activity. She did not even consent to the accused entering her house. The fact that she made immediate complaints of "rape" and appeared to be very distressed support the complaint in this regard. The medical evidence is consistent with the use of force to achieve non-consensual intercourse. 31 Although the accused was somewhat intoxicated at the time of the incident, his prior indication of sexual interest in the complainant, his persistence in seeking entry to the premises, the coherent conversations that he held with the complainant including his statement that he intended to return to "finish the job" and his later admission that he broke into the premises (indicating a recall of events) confirm that he was well aware of what he was doing. Competent legal counsel who appeared on behalf of the accused conceded that there was no issue associated with the accused's intoxication. 32 Because of the complainant's refusal to allow him into her house, her verbal objections and her physical resistance, the accused must have actually known that she did not consent to any sexual intercourse. When the accused gained entry to the house, he grabbed the complainant and pinned her down, indicating that he anticipated resistance. 33 In relation to each of counts 1,2 and 3, I find that each of the elements of the offence is established beyond reasonable doubt. Count 4 34 In order to establish count 4 the Crown must prove the following four legal elements beyond reasonable doubt. The fourth legal element contains sub-elements, each of which must be proved beyond reasonable doubt. (1) The accused broke and entered the complainant's premises. (2) The premises were a dwelling house. (3) When he broke and entered the dwelling, the accused knew that there was a person present in the dwelling. (4) Inside the premises, the accused committed a serious indictable offence. The Crown particularised the serious indictable offence as being the offence constituted by count 1. 35 As to the first element, it was the complainant's evidence that she latched the front door and later found a tear in the screen such as would have enabled the accused to release the latch. The accused admitted to Mr Van Teunenbroek that he "had let himself into (the complainant's place) by putting his finger through the screen door". It is true that no tear is visible in the police photograph of the front screen door although the photograph is of a reasonably good quality. Nevertheless, as the complainant's evidence is supported by the accused's admission, I am satisfied beyond reasonable doubt that the accused broke into the premises by tearing the front screen door and unlatching it. 36 As to the second element, I am satisfied beyond reasonable doubt that the premises were designed and used as a dwelling house. I am satisfied beyond reasonable doubt that, at the time that the accused broke and entered the dwelling, he knew that there were two people present in the dwelling, ie the complainant and her daughter. He had seen them enter the premises. He decided to enter the premises because he knew that the complainant was within. 37 Counsel for the accused submitted that, if there is a finding that the accused committed count 1 offence, then any such finding on count 4 would be an abuse of process because of "double jeopardy" and that the proper course would have been to charge count 1 as an alternative to count 4. 38 At a special hearing, under s 21(3)(a) an accused is taken to have pleaded not guilty. It is unclear whether the accused could or should have entered a "plea in bar". In any event, the objection was identified at the outset of the trial and the Crown took no point about the pleading. The Crown indicated that, in fairness, it would not seek to amend the indictment in order to address the potential difficulty. 39 The relevant rule was articulated in Pearce v The Queen [1998] HCA 57 and applied recently in Regina v Lang [2008] NSWCCA 41. In Pearce at [24], the majority said: "there are sound reasons to confine the availability of a plea in bar to cases in which the elements of the offences charged are identical or in which all of the elements of one offence are wholly included in the other." 40 In Lang, the accused was charged with breaking and entering a dwelling house and committing a serious indictable offence therein, namely indecent assault. In the alternative, he was charged with indecent assault simpliciter. Simpson J delivered the leading judgement. At [16] her Honour noted that, in Island Maritime Ltd v Filipowski; Kulkarni v Filipowski [2006] HCA 30, Gummow and Hayne JJ rejected a construction that involved according significance to the order in which the charges were preferred. Referring to the matter before the Court, at [20] her Honour stated that the formulation of the charges in the alternative ensured that there was no risk of the accused in that case being convicted or punished twice for the same conduct. 41 Section 21 of the Act provides that a special hearing is to be conducted as nearly as possible as if it were a trial of criminal proceedings and s 22 provides that the verdicts available to a court at a special hearing "include" those specified. I infer that the Court retains its inherent jurisdiction to stay proceedings that would be an abuse of process. As all of the elements of count 1 are wholly included in count 4 and as the Crown concedes that it would be proper for me to return a verdict on count 1 before I return a verdict on count 4, I intend to stay count 4 as an abuse of process because the entry of a verdict on count 4 would entail two adverse findings in relation to the same conduct. Verdicts and Orders 42 On each of counts 1, 2 and 3, on the limited evidence available, I find that the accused committed the offence charged. 43 Count 4 is stayed as to proceed further would be an abuse of process. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.