New South Wales Court of Criminal Appeal CITATION : R v Gary Thomas Mitchell [2000] NSWCCA 188 FILE NUMBER(S) : CCA 60589/99 HEARING DATE(S) : 17 May 2000 JUDGMENT DATE : 26 May 2000 PARTIES : Gary Thomas Mitchell JUDGMENT OF : Spigelman CJ at 1; James J at 2; Sperling J at 3 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/11/1075 LOWER COURT JUDICIAL Bellear DCJ OFFICER : COUNSEL : Mr M Grogan for the Crown Mr P Byrne SC for the Appellant SOLICITORS : S.E. O'Connor for the Crown Michael Croke & Co for the Appellant CATCHWORDS : Criminal law - sexual intercourse without consent - whether verdict unsatisfactory - whether misdirection material - no question of principle. LEGISLATION CITED : Criminal Appeal Act 1912 CASES CITED: M (1994) 181 CLR 487 Jones (1997) 191 CLR 439 DECISION : Appeal dismissed. 18 - - IN THE COURT OF CRIMINAL APPEAL 60589/99 SPIGELMAN CJ JAMES J SPERLING J Friday 26 May 2000 REGINA v GARY THOMAS MITCHELL JUDGMENT 1 SPIGELMAN CJ: I agree with Sperling J. 2 JAMES J: I agree with the judgment of Sperling J. 3 SPERLING J: On 28 September 1999, at a trial in the District Court, the appellant was convicted on a single charge of sexual intercourse without consent. The appeal is against the conviction. 4 There are two grounds of appeal: 1. The verdict of the jury is unreasonable having regard to the evidence in the case. 2. The learned trial judge's directions to the jury on the evidence of other alleged sexual assaults, left to the jury as evidence of relationship and "guilty passion", were erroneous and inadequate. Unreasonable verdict : 5 The ultimate question is whether there has been a miscarriage of justice. Where the ground of appeal is that the jury's verdict was unreasonable, the test promulgated in M (1994) 181 CLR 487 , as explained in Jones (1997) 191 CLR 439 is whether it was open to the jury to be satisfied of the necessary elements of the charge beyond reasonable doubt, making due allowance for the advantage of the jury in seeing and hearing the witnesses. 6 It was common ground at the trial that intercourse occurred between the appellant and the complainant at the appellant's house on 31 August 1998. The only serious issue was whether the complainant had consented. She said, in her evidence, that she did not. The appellant said, in his evidence, that she did. It is apparent that the jury accepted the complainant's evidence in that regard in preference to that of the appellant. The question on appeal is whether it was open to the jury to be satisfied beyond reasonable doubt that the complainant did not consent, making due allowance for the advantage which the jury had in assessing the credit of the witnesses. 7 Because it was open to the jury to reject the appellant's sworn testimony and to put it entirely to one side, no purpose would be served in reviewing his account of events in this judgment. 8 The complainant's account of events was as follows. The complainant said that Ms Emma Horton was a long standing friend. The complainant was also friendly with Ms Alison White. On Sunday afternoon, 30 August 1998, the complainant went to a barbecue at Ms White's home. The complainant said she drank part of a stubby of beer there. She was introduced to the appellant at the barbecue. The two of them decided to go out for dinner together. The complainant drove her car to Ms Horton's place to change. She intended to sleep there that night. At Ms Horton's house she had a glass of white wine. The appellant collected the complainant from Ms Horton's, and drove her to his house. The complainant said that she had a glass of champagne there. 9 The complainant said that she and the appellant then travelled by taxi to a restaurant at Parramatta, arriving there at about 8 pm. The complainant said that when she arrived at the restaurant she was feeling "really unsteady, really woozy, disoriented". She said she had a sip of a martini, and a glass of wine with the meal. She then went to the bathroom, she said, because she was feeling so "unsteady". Walking to the taxi, she said, she felt "terrible, very unsteady, really disoriented". She said she thought she leaned on the appellant and might have grabbed his arm to steady herself. 10 The complainant said that she remembered only bits and pieces of the time in the taxi. She remembered lying down at one stage. She thought she had opened the door of the taxi at one point, and might have vomited. She had no memory of the appellant being in the taxi at all. She did not remember getting out of the taxi, but she thought she remembered walking up the driveway of the appellant's house. 11 The complainant said that in the house the appellant was trying to undress her, trying to unzip her dress, but she was walking away through the house, trying, she said, to "get a little bit more control". She said she did not remember very much of what occurred at this stage, that she was feeling "very disoriented" and wasn't quite sure what was happening. She said she walked into the back yard, thinking to get out of the house because it was not right. She said she climbed the stairs of a cubby house in the back yard and lay on the floor. She thought she had "blacked out". She thought she had her dress on at that stage. From there, she remembered seeing the appellant standing at what would have been the back door of the house, naked. 12 The complainant said that her next memory was of waking up in the appellant's bed, lying on her side, naked. She said the appellant was lying next to her, naked. She said she felt him push against her from behind. This was at about 3.30 or 4 am. According to the complainant, she said "No" pretty loudly, because, as she put it, she "got a bit of a shock waking up". She said she elbowed him. At that, the complainant said, the appellant grabbed her by the arm, flipped her onto her back, and got on top of her, holding her arms. She said "Why are you doing this?" She said that she started to cry, that he penetrated her vagina with his penis, and that he had intercourse with her. She said she was crying during this act, and that he said nothing. She said that, when the appellant removed his penis from her vagina, she felt "very dazed, very upset, but very tired". She said that, when he got off her, she rolled over and eventually fell asleep. 13 The complainant said that she woke at about 5 am and went to the bathroom, where she noticed that her pubic hair was shaved off. She said she did not know how that had happened. She asked the appellant if she could go home. He said to wait until he had to go to work. He set the alarm. She lay down again. He got up fifteen or twenty minutes later, turned on the shower, grabbed her by the arm or hand, and pulled her into the bathroom. She said that under the shower, the appellant stroked her breast and patted her where her pubic hair had been, saying he had done a good job of that. She said she wrapped herself in a towel and walked out of the bathroom. She found her clothes in the loungeroom. Both of them got dressed. 14 The complainant said the appellant drove her to her home in his car. When they arrived there, he told her to go and get the "morning after pill". When she arrived home, her sister was the only other person in the house. She was asleep upstairs. The complainant's parents, the other occupants of the house, were away on holidays. This was at about 6 am. The complainant said she went to bed, that she was "still really drowsy". 15 The complainant said that she saw Ms Horton at about 1 pm that day, and that she told Ms Horton that she and the appellant had had dinner, that she did not remember very much, that she had had a couple of drinks, and something of the conversations that had occurred between herself and the appellant. She did not say anything to Ms Horton about sexual intercourse having occurred "because of shock, disgust, horror, embarrassment, shame and fear". She collected her car from Ms Horton's place and returned home. 16 At 6 or 6.30 pm that night, the complainant received a telephone call from the appellant. He asked her if she had been to the doctor yet. She said she had not. He asked her what she had told Ms Horton, and she told the appellant that she had told Ms Horton nothing. 17 At about 7 pm the complainant went to the local medical centre at Prospect, where she saw a Dr Galvin, who was not her regular doctor. She said she went there to get the "morning after pill" and, as she put it, if her doctor had been there, to speak to him. Dr Galvin declined to prescribe the medication sought, as being immoral. The complainant said she said nothing to Dr Galvin about what had occurred, because of his attitude and because he was not her usual doctor. 18 About a week later the complainant spoke to her best friend, Ms Catherine Dolle. Ms Dolle was in Europe at the time of the trial. The complainant says she told Ms Dolle that "something awful had happened", that she had "slept with a married man", that she did not remember very much about it, but that she had not had very much to drink. The complainant said she had been unable to reach Ms Dolle during the intervening week. She said that when she spoke to her she was "still in a bit of shock about what had happened, and scared and disgusted". 19 Shortly after, she spoke to her usual doctor, Dr. Watts. She said that she told him she was "raped". 20 The complainant said that, about a week after that, she spoke to a female police officer, Constable Riley, in a carpark at Westpoint in Blacktown. How the conversation came to be held at that time and in that place was not revealed by the evidence. The complainant said that she subsequently spoke to a friend who was a police officer. Ultimately, she said, she made a statement to a police officer. At her first meeting with the last of these officers, she said, she was not able to provide a statement because she was "very emotional, very upset". However, she returned on 14 October 1998 and made a statement on that occasion. 21 Under cross examination the complainant confirmed her evidence that, so far as alcohol was concerned, she had consumed only part of a stubby of beer, a glass of wine, a glass of champagne, a sip of martini, and one further glass of wine. That was a total of four drinks. However, she also confirmed that there were periods of time that she did not recollect at all. 22 Taxed with why she had not asked the appellant to take her back to Ms Horton's place after the episode of sexual intercourse of which she complained, the complainant said that was because she was "disoriented and unsteady". She said she did not know "what was happening", that she "was not able to say very much to him", and that she was "intimidated". She said she was "not in a state to say anything or think rationally". 23 The complainant denied being affectionate and sexually playful towards the appellant in the taxi. She said she did not remember having her head on his lap, and she denied fondling his penis through his clothing in that position. She denied trying to remove the appellant's penis from his trousers. She said that, during the taxi ride, she was "passed out". She said she did not remember the taxi ride "that well". She agreed she did not know where the appellant was taking her when they left the restaurant. She said she was "not in a state to ask". She said that, at that stage, she "did not really know where she was". She remembered the taxi stopping at one stage, but she does not remember why. She now agreed that she remembered opening the car door, and remembered vomiting. Asked if she was well enough to speak at that stage, she answered "No, I was sick". She said that, later, she was "a little better". 24 The complainant agreed that she remembered walking up the driveway to the appellant's house. She did not remember going in the door, and she did not remember any conversation. She said she had no recollection of how her clothes came to be removed after her memory of being in the cubby house. She had no recollection of how she got from the cubby house to the appellant's bed. 25 The complainant agreed that she went back to sleep after the appellant had allegedly raped her. She agreed that at some stage she took his business card when it was offered to her, but she said that was not in the morning. By that, I take her to have meant that it was not after the event of which she complained. She said she remembered the events of the morning very well. She said that, after the shower, she was "still disoriented". She said she felt better, but "not much better". She said she remembered asking the appellant could she go home, or something to that effect, but she did not know how that had been phrased. 26 Taxed with why she had made no complaint to the appellant about what had occurred, the complainant said that was because of "shock and uncertainty", because "he was acting like everything was still normal", and because she was "not terribly good with confrontation". She agreed that when the appellant telephoned her later in the day she made no complaint to him. She said that was for the same reason as before. She said she was "still in shock". She said it was "not a very easy thing to have to accept what had happened". She said "Denial, you don't believe, just try and forget, the fact somebody would do this to me". 27 The complainant agreed that she said in her police statement that she said to Ms Dolle "I've done something terrible, I've slept with a married man. I don't remember much, but when I went out to dinner we ended up back at his place." The complainant said that she conveyed to Ms Dolle that intercourse had occurred without her consent, but she had to agree that there was nothing to that effect in her statement. The complainant sought to explain that by saying that there was only one paragraph in the police statement to cover what had been an hour-long conversation with Ms Dolle. She disputed that it would have been easy to tell Ms Dolle straight out that she had been raped. She said "It is hard to say it like that after it's happened, because it's hard enough to accept what has happened". 28 The complainant agreed that she may have told Constable Riley, during the conversation in the carpark, that she was unaware if she had actually been penetrated by the appellant. The complainant said she was very distressed when she was speaking to Constable Riley. She said that, at that stage, she had not intended to speak to the police at all. Indeed, she said she had vehemently told the police that she did not want anything done. She said she did not tell Constable Riley what had happened because she was very distressed. She said she was crying at the time, and did not remember much of what she had told Constable Riley. She agreed that she might have told Constable Riley that she recalled the appellant attempting to penetrate her vagina with his penis, and, being unsuccessful, rolling over and going to sleep. The Crown Prosecutor conceded that, according to the Crown's information, that is what the complainant told Constable Riley. 29 The Crown's case depended on acceptance by the jury of the complainant's account of events, which, in turn, depended on the jury accepting her as a truthful and reliable narrator. The burden of the appellant's argument on appeal was that the complainant's conduct after the event, including things said by her, was so inconsistent with the absence of consent that a jury could not reasonably have been satisfied that her version of events was true. 30 The alleged inconsistencies were as follows. First, there was the conversation with Ms Horton at about 1 pm on the same day as the alleged offence. Ms Horton gave evidence. She said she asked the complainant how the night went, and that the complainant replied that it had been "Okay", that it was "Alright". That went somewhat further than the complainant's concession in her evidence that she had not told Ms Horton anything about sexual intercourse having occurred. 31 Secondly, there was the failure to tell Dr Galvin what had allegedly occurred, particularly in the face of that doctor's reported attitude that to prescribe the "morning after pill" would be immoral. 32 Thirdly, there was the conversation about a week after the event with Ms Dolle, as recorded in the police statement. Asked, under cross examination, whether these were the words that were said, the complainant said that they were, among other things. The question was ambiguous, which, in turn, made the answer ambiguous. It is not clear whether the witness was agreeing that the words in the police statement were as spoken by her to the police, or whether the statement accurately recorded the words the complainant had spoken to Ms Dolle. In her evidence in chief the complainant had said that she told Ms Dolle that something awful had happened, whereas in cross examination she agreed that she told the police (and perhaps adopted as correct) that she had told Ms Dolle she had done something terrible. 33 It appears that the trial judge recalled the terms of the evidence in chief, and did not recall the terms of the evidence in cross examination. During a break in the summing up, counsel for the appellant drew his Honour's attention to the passage in cross examination. That was done in the presence of the jury. The trial judge said to the jury, when resuming his summing up: "Ladies and gentlemen, my interpretation of the evidence was different to that of Mr Korn. (counsel for the appellant at the trial) However, you are the judges of the facts. You heard the evidence, and it is for you to determine what the evidence was." The error on the part of the trial judge is not relied on as giving rise to a miscarriage of justice. 34 As I have noted earlier, the complainant gave evidence that the police statement did not record the whole of what she told Ms Dolle and, in particular, her having conveyed to Ms Dolle, in terms she did not recall, that there had been sexual intercourse without her consent. 35 Fourthly, Dr Watts gave evidence. He said the complainant told him that the appellant had "attempted sexual intercourse" with her, during which he "wasn't penetrating her". He said, further, that the complainant's knowledge of any other acts of a sexual nature occurring between her and the appellant was based on information that had been provided to her by the appellant. 36 Fifthly, there was the concession by the Crown that the complainant told Constable Riley only that there had been attempted penetration, which was unsuccessful. Then there was the complainant's concession under cross examination that she had told Constable Riley she was unaware if she had been sexually penetrated by the appellant. 37 Sixthly, the police officer spoken to by the complainant after she had spoken to Constable Riley was Detective Senior Constable Parker. Although itemised as an inconsistency, there was nothing inconsistent with the complainant's account of events emerging from her evidence. 38 There was, as I have said, no issue about intercourse having occurred. Accounts to the contrary, or from which the contrary could reasonably be inferred, were relied upon as going to the complainant's credibility or reliability in relation to her account of events insofar as it differed from that of the appellant, in particular on the critical issue of consent. 39 In addition to the alleged inconsistencies relating to things said after the event, the appellant asserts inconsistency in relation to the complainant's account of her alcohol consumption, and in her behaviour in staying with the appellant after the event rather than insisting on being taken home, or getting herself home. 40 The difficulty for the appellant is that a failure to complain in terms of what is alleged to have occurred and even statements made after the event which are positively inconsistent with what is alleged to have occurred are not considerations conclusive against acceptance of a complainant's evidence on the main issue. It would be exceptional if inconsistencies of this kind were so gross as to require a jury to disbelieve the complainant in relation to what mattered. This was not such an exceptional case. There was the possibility that some of the persons to whom the complainant spoke may have misunderstood what she intended to convey to them. There were also the complainant's explanations for her reticence when speaking to others, to which I have referred. 41 The inconsistencies were doubtless the subject of argument and counter argument in the addresses of the Crown Prosecutor and counsel for the appellant. They were reviewed in detail by the trial judge. Credibility is quintessentially a jury question. The jury was not bound to disbelieve the complainant by reason of these inconsistencies. Having regard to the advantage which the jury had in seeing and hearing the witnesses, and in particular the complainant, it was open to the jury to find that the intercourse which occurred was without her consent, as she swore on her oath to have been the case. 42 The asserted inconsistencies in relation to alcohol consumption and the failure to leave immediately after the event had a possible association which the jury would have been entitled to infer. There was a considerable disparity between the complainant's account of the amount of alcohol she had consumed, on the one hand, and, on the other hand, her description of her condition at the restaurant and thereafter. It was open to be inferred that the complainant had drunk a good deal more than she said, to the extent of not being able to think clearly about her situation. That disparity did not necessarily reflect adversely on the complainant's credibility. To have drunk a good deal more than the person believes is common enough. Direction on "guilty passion" 43 The Crown concedes misdirection. The events leading up to the episode of sexual intercourse were relevant. The trial judge reviewed those events. In that context, the trial judge referred to the accused's antecedent actions as "offences" and went on to say in connection with such antecedent acts the following: "It is to place the evidence of the particular acts into a true and realistic context, and where appropriate to show the existence of a guilty passion on the part of the accused for the complainant. Otherwise you see a jury such as yourselves may wonder as to the likelihood of apparently an isolated act occurring suddenly without any apparent reason without being repeated. If a complainant gave evidence of an isolated act of that kind, you will be entitled to say to yourselves as people of commonsense, 'Well, really, it is very odd for there to be such an isolated act between these persons which was not repeated or which had no precursor.' For that reason, you might have cause to entertain some doubt as to the likelihood or accuracy of the witness. If, however, the particular act charged is placed in a wider context, that is a context of an on-going history and show or tends to show the existence of guilty passion on the part of the accused or the complainant, then the curious feature would disappear. It is for that reason that the law permits a wider sexual history to be proved. It is to avoid artificiality or unreality in the presentation of the evidence and to demonstrate, where appropriate, the existence and continuation of a guilty passion on the part of an accused person for another person." 44 It is time for the expression "guilty passion" to disappear altogether from the legal vocabulary. In an appropriate case, a phrase such as "sexual interest" or "strong sexual interest" serves as well. By whatever terminology, the concept did not apply in the present case. It was common ground that sexual intercourse occurred, and the appellant's sexual interest in the complainant did not bear upon whether the intercourse was with or without consent. 45 No objection was taken to this passage in the summing up. Rule 4 applies. I would not give leave to argue the ground pursuant to r 4. I would also apply the proviso to s 6 of the Criminal Appeal Act 1912. The error did not give rise to a miscarriage of justice. In the overall context of the case, the passage was innocuous. It made no material difference, in my view, to the appellant's prospect of acquittal. Conclusion and Orders 46 Both grounds of appeal fail. The order I propose is that the appeal be 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. 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.