New South Wales Court of Criminal Appeal CITATION : Regina v Steenson [2000] NSWCCA 143 FILE NUMBER(S) : CCA 60441/99 HEARING DATE(S) : 19 April 2000 JUDGMENT DATE : 5 May 2000 PARTIES : REGINA (Respondent) Robin John STEENSON (Appellant) JUDGMENT OF : Stein JA at 1; Dunford J at 2; Simpson J at 3 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/61/0079 LOWER COURT JUDICIAL Christie DCJ OFFICER : COUNSEL : Mr D C Frearson (Crown/Respondent) Mr P Byrne SC (Appellant) SOLICITORS : S E O/Connor (Crown/Respondent) Nelson Keane & Hemmingway (Appellant) CASES CITED: Jones v R (1997) 191 CLR 439 R v Crisologo (1997) 99 A Crim R 178 DECISION : Appeal dismissed. IN THE COURT OF CRIMINAL APPEAL 60441/99 STEIN JA DUNFORD J SIMPSON J Friday 5 May 2000 REGINA v Robin John STEENSON Judgment 1 STEIN JA: I agree with Simpson J 2 DUNFORD J: I agree with Simpson J. SIMPSON J : 3 On 15 June 1999 the appellant was charged in the District Court at Dubbo on an indictment containing two counts of sexual intercourse without consent. He entered pleas of not guilty to each charge and a jury was accordingly empanelled. The evidence, addresses and summing-up were completed by 1 pm on the second day of the trial, 16 June. At 3.29 pm the following day, 17 June, the jury returned verdicts of not guilty on the first count and guilty on the second. The appellant appeals against the conviction. 4 The Crown case may be outlined briefly. From late in 1995 the appellant and the complainant had been living together in a de facto relationship. Early in 1996 they moved to a rural property outside Dubbo. The relationship quickly deteriorated and was marked by incidents of verbal abuse and physical violence directed by the appellant towards the complainant. Notwithstanding a number of such incidents the two continued to live together and share a bed. One morning in March 1996 the appellant made sexual approaches to the complainant which she unequivocally rejected. He persisted, forced himself upon her, and with his penis penetrated her vagina. This gave rise to the first count on the indictment on which the jury acquitted the appellant. 5 After this alleged assault the complainant had some bruising to various parts of her body. Nevertheless, she did not report the incident to anybody and she continued to share the bed with the appellant. Thereafter there were further incidents of non sexual violence directed by the appellant to the complainant. 6 The event giving rise to the second count was alleged to have occurred within a few days of 7 April which was the complainant's birthday. The two were in bed together when the appellant again made sexual advances to the complainant who had been asleep until awakened by him. The appellant held the complainant by the shoulders and penetrated her vaginally with his penis. Although the complainant's evidence was that this act of vaginal intercourse was non consensual and that she clearly signified that she did not wish to engage in sexual activity with the appellant, no charge was brought in relation to this event. Although the complainant continued unequivocally to reject his attentions, at the conclusion of the vaginal intercourse the appellant proceeded to insert his still erect penis into the complainant's anus. It was alleged this act of anal intercourse that was the foundation for the second count in the indictment, on which the appellant was convicted. 7 The complainant again suffered bruising to her body as well as discharge of blood and mucus from the anus, but made no immediate disclosure of the event to anybody. Further incidents of violence followed and the complainant eventually reported three such incidents to police in May. During this time the complainant and the appellant continued to occupy the same house and the same bed. 8 The appellant gave evidence in the trial. His evidence was that, despite some problems in the relationship, as a result of which he and the complainant attended counselling for a time, they continued to have sexual relations which were invariably consensual. He denied any incident of anal intercourse. The defences he advanced to the two counts therefore differed markedly from one another. His defence to the first count was that the complainant consented; his defence to the second was a denial that the incident as described by the complainant ever occurred. 9 In relation to the first count it is appropriate here to observe that neither the Crown case as presented, nor the appellant's, left open the possible alternative defence that the Crown had failed to eliminate the reasonable possibility that the appellant did not know that the complainant was not consenting to the sexual intercourse, or, put another way, had failed to establish an essential element of the offence, that is, that the appellant knew of the absence of consent. This may have been of some importance, given the circumstances in which the complainant and the appellant were living and sleeping together. 10 In this respect it is worth extracting some of the complainant's evidence in chief: "He forced himself onto me, he was on top of me, he got on top of me." … "…I told him to get off." … "I can remember I was still on my back and he was forcing his body into mine and he put his knees together to get my legs open, he was shoving my legs apart." … "I can remember he had hold of my - he had me flat on my back and he was forcing his knees between my legs … Yes I told him to get off me and get away from me … No he just totally ignored me … Yes because he would do it with all of his might and I couldn't get him off me …" … "Yes I told him to get away from me and stop hurting me." … "No he continued on even stronger and with more force." … "I can remember struggling with him and trying to get him off me and he just come with more force and just kept poking me with his penis and putting it into my vagina." … "I was trying to force him off me and I think basically he had finished doing what he wanted to do, I couldn't get him off me he was so strong and that and he just totally ignored me, and he just finished what he was doing, wanted to do to me and then I remember trying to push him away from me and trying to wriggle away from him, underneath his body. … I questioned him, why does he treat me like this, and I was crying and in pain, I was very uncomfortable and I couldn't understand why he was treating me like this." 11 Nothing was put in cross-examination to the complainant to suggest the possibility (as an alternative to the appellant's insistence that any sexual activity between them during the subsistence of the relationship was consensual), that the appellant did not have the necessary knowledge that the complainant was not consenting. The area of dispute in relation to the first count was whether the Crown had proved to the requisite standard that the complainant did not consent to the appellant's sexual overtures. On the evidence there was no room for the proposition that, even if the jury were satisfied beyond reasonable doubt that she did not consent, the Crown had failed to prove the appellant's knowledge of that fact. In relation to the second count the area of dispute was equally narrow. It was whether the Crown had proved that an incident of anal intercourse had occurred. If it had, there was no suggestion whatever that it was consensual. 12 In these circumstances it is somewhat surprising that the judge directed the jury in the following terms: "She says that a date in March there was some sexual activity engaged in between them and that it was somewhat rough and that she told him to stop and that she told him on a number of occasions to stop but he continued in spite of her protestations and in spite of her requests or demands that he stop. As the Crown Prosecutor has correctly said to you, if a person continues once a consent to some sexual activity has been withdrawn, if a person continues to engage in that sexual activity then it would amount of course to sexual intercourse without consent if that consent was withdrawn, as long the accused knew that that consent was withdrawn. Now that is the Crown case that she told him. I do not think that the Crown case is that initial sexual activity was not consensual. I understand the Crown case through this lady to be … that at a stage of this act she withdrew her consent and made it perfectly clear to him that that was what she had done and he continued on with this activity which the Crown says then became sexual intercourse without consent and that the accused knew perfectly well that she was not consenting because she was protesting and demanding that he get off her." 13 On the appeal it was common ground that this direction misstated the clear effect of the complainant's evidence, but as it was plainly a misdirection that favoured the appellant, it gives rise to no ground of appeal. That does not mean that it is without significance. It may, in fact, be the key to the different verdicts and provide the answer to the principal ground of appeal argued on behalf of the appellant. I will deal with this below. Grounds of appeal 14 Two grounds of appeal were pleaded. They are: 1. The verdicts of the jury are inconsistent. 2. Having regard to the evidence, the verdict of guilty is unreasonable. Inconsistency 15 The argument that the verdicts are inconsistent draws (invalidly, in my opinion) on the decision of the High Court in Jones v R (1997) 191 CLR 439. In that case the appellant faced three charges of sexual intercourse without consent. The jury acquitted him of one and convicted him of two. The High Court held that, in the circumstances of that case, the convictions could not be reconciled with the acquittal. The essential foundation for this was that proof of all counts depended upon acceptance of the evidence of the complainant. The acquittal was taken to show that the jury experienced a doubt about her credibility in relation to that count; that doubt should have affected the jury's view of her credibility in relation to the other counts. 16 I have previously distinguished Jones; see R v Crisologo (1997) 99 A Crim R 178. As I there observed, when an appellate court is confronted with an argument that verdicts are inconsistent it is necessary and appropriate to make some examination of the circumstances in order to determine whether the approach taken by the High Court in Jones dictates a conclusion that the verdicts of guilty cannot be permitted to stand. Where the verdicts of guilty cannot be reconciled with the acquittals, because the acquittals necessarily denote a unanimous doubt about the credibility of a witness who is essential to the Crown case on all counts, then that doubt must be translated to the remaining counts. That, however, is not the only potential explanation for different verdicts on different counts. It is not in every case where multiple counts are charged but result in a mix of verdicts that the verdicts of guilty must be held to be unsafe or unreasonable. Sometimes the mix of verdicts might bespeak a compassionate, or commonsense approach; in other cases the different verdicts might represent a compromise such that neither the convictions nor the acquittals truly represent the unanimous view of all members of the jury. In such a case, while the acquittals are of course unassailable, the convictions may result in a successful appeal the consequence of which is a new trial rather than the entry of verdicts of acquittal. 17 Here, there is some slight basis for an argument that the verdicts represent compromise. After a trial that (except for verdicts) concluded within a day and a half, the jury deliberated for a further day and a half before reaching its verdicts. However, there is nothing to suggest that the jury was deadlocked or that its members considered unanimity was unlikely. There were no communications directed to the trial judge suggesting that the members of the jury were having any trouble reaching agreement or that the verdicts were a compromise resulting from irreconcilable division of opinion. 18 The different verdicts have to be seen in the context of the position adopted by the appellant and also of the factually erroneous direction given by the judge. The appellant's response to the first charge was that all sexual intercourse between himself and the complainant was consensual. As was pointed out by counsel for the appellant, the complainant's evidence was unequivocally that it was not consensual, and that she made the absence of consent abundantly plain to the appellant. On her evidence, the appellant could have been under no misapprehension about the existence, or absence, of consent. The verdict on that count, in those circumstances, must then have depended upon acceptance by the jury of the complainant's evidence. The second count also involved a direct conflict between the evidence of the complainant and that of the appellant. The verdict on that count therefore also depended upon acceptance by the jury of the complainant's evidence. It would, on that scenario, be difficult to avoid the consequence that the decision in Jones dictated the approach to be taken, and the doubt about the complainant's evidence inherent in the acquittal would have to be applied to the second count. Unfortunately the issues were not left to the jury in that simple way. What should have been a simple issue in relation to the first count was confused by the judge's direction extracted above, wrongly stating that the complainant had initially consented but that at some point during the sexual activity she had withdrawn consent. Further, the direction suggests that the notion of withdrawal of consent previously given was introduced by the Crown Prosecutor although that may have been said by the Crown Prosecutor in that part of the address. That dealt with the second count in relation to which there was some, slender evidence that might have accommodated a direction that the Crown case was that the complainant initially acquiesced in the sexual advances, but at an early point made clear that she was not, or was no longer, consenting. Having regard to that direction, the jury may well have experienced a doubt about whether the Crown had eliminated the reasonable possibility that the appellant knew that the complainant was not consenting. This was, as they were told, also an essential element of the charge. It further must be remembered that these events took place was in the context of a relationship in which the parties, despite their difficulties, continued to live and sleep together. The explanation for the acquittal is not necessarily to be found in a doubt about the complainant's credibility. It is far more likely to be found in the need for the Crown to prove the appellant's state of mind, or knowledge of the absence of consent. 19 In relation to the second count, the jury had to decide whether the Crown had proved beyond reasonable doubt that anal intercourse had taken place. This did involve questions of credibility. The jury could not have convicted unless satisfied beyond reasonable doubt that anal intercourse had taken place. Of this, the complainant asserted it had taken place, the appellant asserted the contrary. But the jury's conclusion on that is unaffected by its earlier verdict. 20 The issues in relation to the two charges were so completely different that the verdicts cannot be regarded as inconsistent. The inconsistency ground should be rejected. Unreasonableness 21 By the second ground it was contended that the conviction was unsustainable by reason of certain factors taken individually or in combination. One of these factors was the delay by the complainant in reporting the events. Her explanation, in each case, was that she felt humiliated and ashamed and did not want to expose herself further. Delay in complaint was a relevant circumstance for the jury to take into account, as was the complainant's explanation. It may be assumed that it featured prominently in counsel's address, and it was properly dealt with in the summing-up, about which no criticism is made on appeal. The complainant's continuing to live and share a bed with the appellant was another matter properly available for the jury to consider in the overall evaluation of the Crown case. There is also no criticism of the way this matter was put to the jury. 22 Asserted discrepancies in various accounts given by the complainant of the anal intercourse were the principal focus of this ground of appeal. In her oral evidence the complainant described the event in this way: "I tried to fight him off and I would be verbally telling him to get off me, and I was pushing him, I can remember pushing him by his shoulders and trying to wriggle sideways out from underneath him, and then he grabbed my leg and he pushed my legs up near my ears, you know." 23 In cross-examination it was put to her that she had given a different, and improbable or even impossible, account on a previous occasion. The complainant made her first written statement to police on 29 August. On 6 September she gave two further written statements. She was cross-examined on these statements in committal proceedings. Counsel for the appellant at trial (who did not appear on the appeal) put to her that the description she had originally given lacked any reference to having her legs forced around her ears. It was put to her that, in her evidence at the committal, she had said that anal intercourse took place while she was lying on her back, and that this was physically impossible. In my view the questioning took an overly literal approach to the description given by the complainant, but the real answer to this issue on the appeal is that any discrepancies in the complainant's accounts were properly matters for the jury to evaluate. Having regard to the extent of the cross-examination on this topic, it may readily be assumed that a good deal was made of it by counsel in his address to the jury. It was quintessentially a jury question whether her account was implausible and the jury resolved this against the appellant. I see no reason to regard this as resulting in an unreasonable verdict of guilty. In my opinion this ground of appeal also should be rejected. 24 I would dismiss the appeal. ******** 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.