New South Wales Court of Criminal Appeal CITATION : R v RASO [2000] NSWCCA 22 FILE NUMBER(S) : CCA 60327/99 HEARING DATE(S) : 16 February 2000 JUDGMENT DATE : 16 February 2000 PARTIES : Regina Mario Raso JUDGMENT OF : Spigelman CJ at 1; Hulme J at 2; Smart AJ at 38 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/11/0426 LOWER COURT JUDICIAL Graham DCJ OFFICER : COUNSEL : Crown: PG Berman Appellant: MA Green QC; TC Watts SOLICITORS : Crown: SE O'Connor Appellant: Ford Gaitanis DECISION : Appeal dismissed IN THE COURT OF CRIMINAL APPEAL No: 60327/99 SPIGELMAN CJ HULME J SMART AJ Wednesday, 16 February 2000 REGINA -v Mario RASO JUDGMENT 1 SPIGELMAN CJ : I will ask Hulme J to deliver the first judgment. 2 HULME J : In March 1999 the abovenamed appellant was indicted on four counts: 1. That between 1 March and 30 April 1995 at Emu Plans he committed an indecent assault on Rowena Degenhardt, she then being under 16. 2. That between 29 May and 1 December 1995 at Brookvale he committed an indecent assault on Rowena Degenhardt, she then being under 16. 3. That between 7 and 21 June 1996 at Brookvale he had sexual intercourse with Rowena Degenhardt without her consent, knowing she was not consenting and she then being under 16. 4. In the alternative, that between 7 June and 21 June 1996 at Brookvale he had sexual intercourse with Rowena Degenhardt, she then being above the age of 10 and under the age of 16. 3 On 8 March 1999 the jury before whom the appellant was tried brought in a verdict of not guilty in respect of the first three charges and guilty on the fourth charge. On 17 June 1999 the appellant was sentenced to two years penal servitude to be served by way of periodic detention. 4 The grounds of appeal are: 1. There has been a miscarriage of justice in that the verdict of guilty on count 4 is inconsistent with the verdicts of not guilty on counts 1 and 3. 2. The verdict of guilty is unsafe and unsatisfactory. 5 The appellant gave evidence and denied the happening of the events the subject of the charges against him. The only witness who could give direct evidence of those events was the complainant. The bases for the grounds of appeal lie in what is said to be the unsatisfactory nature of the complainant's evidence, the inconsistency between some of it and what she appears to have told other persons about the events and the jury's failure to accept the complainant's evidence in respect of counts 1, 2 and 3. It becomes accordingly necessary to consider the evidence given in some little detail. 6 There seems to have been no dispute that the complainant was born on 29 May 1981, a sister Michelle was born in 1976, another sister Angela was born in 1975, and the appellant was born in 1950. The appellant married Michelle on 25 February 1995, having lived with her since about October 1993. 7 The complainant's account of the incident the subject of the first charge was that after a family meal at Easter 1995 the appellant was packing things into the boot of his car, the complainant was helping him, and he reached out and grabbed a breast. She said, "Don't," moved his hand away and moved inside. On probably that night the complainant rang a friend, Jacqui McGee, and described what had occurred. 8 The complainant's account of the second incident was that at some stage during the period mentioned she was at the home of her sister and the appellant. Her sister left to drive two other children somewhere. The complainant was sitting on the lounge, the appellant sat next to her, held her jaw, tried to kiss her, tried to get on top of her, and was touching her around the breasts and vaginal area for some two minutes. In answer to the question, "Did you manage to stop it, or what happened?" she said: "I think he finally or he - I don't know. I probably pushed him off or something, finally got up and went into the bathroom and locked myself in there until Michelle got home." 9 She was in the bathroom for about ten minutes and in the following week rang Jacqui and told her what had happened. Jacqui asked, "Are you going to tell Michelle?" Some time soon afterwards the complainant spoke to one of her teachers, a Mr Engell. 10 The complainant said that she told Mr Engell "how my brother-in-law had been making advances and I am unsure how to respond because I was only 14 and my ideas of what is right and wrong were still, I didn't know what he was doing was wrong, so I just told him what had been happening and he said it was up to me whether or not I told Michelle." Later the complainant said she did know that the conduct she attributed to the appellant was wrong. 11 In the following months the complainant and her family visited the appellant and Michelle. She said that on one such occasion she was alone in the lounge room when the appellant came in. He sat on the floor in front of her and said, "I want to make love to you. Why don't you let me make love to you." The complainant replied, "What would you do if I told Michelle?" He said, "You wouldn't, would you?" and then the complainant rose and joined the rest of the family outside the lounge room. 12 The complainant's account of the incident the subject of the third and fourth counts was as follows. She was at the appellant's house looking after a baby while her sister was out shopping. It was a Saturday and the appellant was at work. He returned dirty and had a shower. As he came out of the bathroom he had a towel around him and the complainant was nearby. He started kissing her and pushing her towards the bed. He "kind of lifted" her onto the bed and took her clothes off. The complainant said, "Stop. Don't." The appellant "basically raped" her, put his penis in her vagina, apparently ejaculated, and then "just got up and left me there on the bed and walked off." 13 Michelle arrived home. The complainant said that on the following day she told Jacqui that the appellant had raped her. 14 About a fortnight later the complainant was again at the appellant's house, on this occasion painting. Michelle left to buy some cigarettes and while the complainant was kneeling down painting the bottom part of a wall the appellant lifted her up and started dragging her towards the bedroom, the complainant trying to fight him off. The complainant heard her sister's car and said, "You had better stop, Michelle's out the front." The appellant did not respond and while he was taking the complainant towards the bedroom Michelle walked in. There was something of an altercation and Michelle took the complainant to the local police station, where she spoke to a female police officer. She told the police officer her brother-in-law had been touching her and her sister had found out, but cannot remember making a formal statement. The complainant and Michelle returned to the appellant's house, where there were more accusations of touching and advances, and denials of these activities by the appellant. 15 In August 1997 the complainant spoke to a Mrs Jagger, her school counsellor, and said her brother-in-law had touched her. The school counsellor did not ask her directly what he had done. 16 In September 1997, according to the complainant, she spoke with another counsellor and in December 1997 went to the police and spoke about the incidents. 17 Prior to going to the police the complainant had not told her mother, father or sisters about any of the incidents the subject of the charges. In response to questions as to why she had not complained of the breast- touching incident she said that this was because there could have been major repercussions in the family, a reason which would obviously apply to all incidents. 18 The complainant adhered to the essential elements of her account during cross-examination. Trying to judge the effect of cross-examination from the printed page is fraught with difficulty, but it should be said that a consideration of the transcript of the complainant's cross-examination leads me to think the jury may well not have been impressed with at least some aspects of the complainant's evidence. For example, her recollection of detail was in a number of respects less than might have been expected, even given the traumatic nature of some of the events she described. For example, when cross-examined on the incident the subject of the third and fourth counts, the complainant said she could not remember whether the appellant had taken her clothes off before or after he had put her on the bed. Later she said he took them off on one side of the bed and carried her around to the other side. She cannot remember him pulling her pants off. She was struggling throughout all of this. The complainant's account of the breast-touching incident was such that unless the evidence was accepted in its entirety the jury might well have inferred the touching was accidental. 19 Cross-examined about her failure to report the alleged rape two weeks earlier when, on 30 June, she was taken to the police, the complainant said no one asked her, she should not have to explain herself, and the circumstances were hostile - an apparent reference to Michelle being upset and screaming. In that screaming, according to the complainant, Michelle was saying what a bastard the appellant was, that she was going to take him for all he was worth, and was going to put him in gaol. 20 It is surprising if the complainant had been raped that when Michelle was in that mood the complainant did not inform her sister of the rape. Instead, the complainant's reason expressed for not then telling Michelle of what the appellant had done was she could not get a word in. Her expressed reason for not telling the policewoman was she was not aware she could make a complaint - "a 14-year old doesn't know the procedures." One can well understand the jury not accepting all of this. 21 Miss Jacqui McGee, whose statement to the police was made in January 1998, gave evidence to the effect that in a telephone call in 1995 the complainant told her of being out by the boot of the car with the appellant, that Michelle started coming out to the car, presumably from the house, the appellant looked up and said, "Here they come" and then squeezed the complainant on the breast. Miss McGee's recollection of what she was told as to the second incident was that Michelle went out to buy something, Mario then kissed the complainant and would not let her get up. 22 Concerning the third incident, Miss McGee said that the complainant told her that she and the appellant were on the bed and he was kissing her. Miss McGee asked the complainant if she and the appellant had had sex and the complainant answered in the affirmative. Miss McGee asked the complainant if she thought she was pregnant. The complainant said no, she had just had her period. 23 Mr Richard Engell, employed at the school attended by the complainant, gave evidence that at the end of a personal development and health lesson or biblical study towards the end of 1995 the complainant asked him, "If you were to have sexual intercourse with someone does that mean God will condemn you to hell?" Mr Engell then had a private conversation with the complainant, in which the latter said she was in a relationship or having a sexual liaison with her brother-in-law. The witness was not clear whether the complainant was indicating that sexual intercourse had occurred or was planned, although he at least understood there had been digital penetration. The complainant said her brother-in-law had told her that he loved her and wished he could have married both her and her elder sister. Initially, the complainant seemed confident but at the end of the discussion was unsure and felt continuing the relationship was not appropriate. 24 In mid-1997 the complainant spoke to another teacher, Mrs Jagger, and then again to Mr Engell. On this occasion the complainant said that for about six months after their prior conversation she had avoided being alone with the appellant, but then "it started again after that." The complainant also said something along the lines, "I know he doesn't love me now, he is just using me." The complainant also said that there was an occasion when the complainant and appellant were involved in sexual activity and her sister came home and caught them in a very compromising situation. The sister was upset and drove the complainant to the police station. 25 It is unnecessary to recount Mrs Jagger's evidence. 26 Evidence was given by two police officers of the attendance of Michelle and the complainant at a police station on 30 June 1996. Const Brophy said that Michelle complained that she believed the appellant had been involved in a sexual relationship with her younger sister. Const Smith, a policewoman, said that the two women were together the entire time at the station, some evidence to the contrary having been given earlier. The complainant, according to Const Smith, really did not want to speak and seemed embarrassed to be there. 27 The failure of the complainant to make mention to any of the witnesses to whom I have referred of being raped by the appellant provided clear grounds for the jury to disbelieve, or at least not be persuaded beyond reasonable doubt of, that aspect of the complainant's evidence. The same may not be said of that portion of her evidence as went to the occurrence of sexual intercourse and the existence of a relationship in the context of which sexual intercourse may well have occurred. The incident of 30 June 1996 about which there was a wealth of evidence provides significant corroboration of such a relationship. 28 It was submitted by Mr Green of Queen's Counsel on behalf of the appellant that because the complainant's account of the incident the subject of the third and fourth counts was of rape or non-consensual intercourse, once the jury rejected the complainant's evidence of the lack of consent they were obliged to reject the complainant's evidence of sexual intercourse also. 29 In the terms in which it was expressed, that proposition is just wrong. It is also contrary to the practice of juries and the courts far longer than I have been a judge. Of course, the proposition may be accepted if attended by the qualification "unless there is no rational basis for the distinction". Here, there was a clear rational basis for the distinction between accepting the complainant's evidence of intercourse and rejecting her evidence of lack of consent or, more precisely, not being satisfied beyond reasonable doubt on her evidence of lack of consent. 30 The verdict of not guilty on the first count may well be explicable on the basis I have indicated above; namely, the possibility of accidental touching. Certainly the circumstances outlined by the complainant, that the touching occurred just before the appellant's wife, presumably to the knowledge of the appellant, was due to arrive at the location, are not indicative of any great sexual motive. The verdict of not guilty to the second count may be explicable again on the basis that in the absence of Miss McGee having any recollection of being told there was sexual activity beyond kissing on that occasion, the jury were not persuaded that indecency then occurred. 31 Thus, I see no necessary inconsistency between the jury's verdict on any one of the first, second or third counts, or those verdicts in combination, and the verdict on the fourth count. Furthermore, I see no basis for concluding that the verdict of guilty was unsafe and unsatisfactory or, to use the terms of s 6, unreasonable: see Fleming v The Queen (1998) 158 ALR 379. 32 The jury was told, as all juries are, that they were entitled to accept part only of the witness' evidence. Of course, as the jury were also told, any decision in that regard had to be rational but the remarks made above demonstrate there was a rational basis upon which the jury could accept the complainant's evidence supporting the commission of the offence the subject of the fourth count but not the others. 33 The appeal should be dismissed. 34 SPIGELMAN CJ: I agree with the order proposed by Hulme J and generally with his Honour's reasoning. I would not myself place any emphasis on the failure on the part of the complainant to refer to the rape on the occasion on which she attended the police station after her sister's intervention. The hostility of the circumstances may not be confined to the behaviour of her sister Michelle at that time. They may have extended to the entirety of the circumstances, including the atmosphere at the police station. 35 However, the other factors to which his Honour referred are ample grounds for dismissing the appeal. The basic proposition in the central point raised on behalf of the appellant was a suggestion of some inconsistency between counts 3 and 4. 36 It is true that the version the complainant gave was entirely directed to count 3; namely, the lack of consent. There is no reason why the jury could not have accepted her version insofar as she gave evidence of an act of sexual intercourse, but not be satisfied beyond reasonable doubt with respect to the element of lack of consent which is the distinguishing feature between counts 3 and 4. 37 I agree that the appeal should be dismissed. 38 SMART AJ: I agree with the orders proposed by Hulme J and generally with the reasons. I agree with the comments of the Chief Justice. 39 The appeal should be dismissed. 40 SPIGELMAN CJ: The order of the court is appeal dismissed. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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