New South Wales Court of Criminal Appeal CITATION : R v Armstrong [1999] NSWCCA 99 FILE NUMBER(S) : CCA 60614/97 HEARING DATE(S) : 16/04/99 JUDGMENT DATE : 3 June 1999 PARTIES : Regina Mark Anthony Armstrong JUDGMENT OF : Wood CJ at CL at 1; Hidden J at 2; Smart AJ at 50 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/51/0128 LOWER COURT JUDICIAL OFFICER : Freeman DCJ COUNSEL : P. G. Hogan (Appellant) C. K. Maxwell QC (Crown) SOLICITORS : John Bettens & Co (Appellant) R. Gray (Crown) CATCHWORDS : Appeal against conviction ; Application for leave to appeal against sentence ; Sexual assault and related charges: fresh evidence ; Whether appellant incompetently represented at trial ; Whether verdict unreasonable ACTS CITED : Crimes Act 1900 Fleming v The Queen (1998) 158 ALR 379 Gallagher v The Queen (1985-6) 160 CLR 392 CASES CITED: M v The Queen (1994) 181 CLR 487 Mickelberg v The Queen (1989) 167 CLR 259 R v Hemsley (CCA, unreported, 8 December 1995) R v Birks (1990) 19 NSWLR 677 DECISION : Appeal against conviction dismissed; leave to appeal against sentence granted, but appeal dismissed. IN THE COURT OF CRIMINAL APPEAL No. 60614/97 WOOD CJ at CL HIDDEN J SMART AJ Thursday 3 June 1999 Regina v Mark Anthony ARMSTRONG JUDGMENT 1 WOOD CJ at CL: I have had the advantage of reading in draft the reasons for judgment of Hidden J. I agree with his reasons and the orders he proposes. IN THE COURT OF CRIMINAL APPEAL 60614/97 WOOD CJ at CL HIDDEN J SMART AJ Thursday 3 June 1999 R v MARK ANTHONY ARMSTRONG Reasons for judgment 2 HIDDEN J : The appellant, Mark Anthony Armstrong, was indicted in the District Court at Coffs Harbour upon one count of sexual intercourse without consent and three counts of assault occasioning actual bodily harm. He pleaded guilty to one of the counts of assault occasioning actual bodily harm, but not guilty to the other counts. After a trial before Freeman DCJ and a jury, he was found guilty of those counts. In respect of the four charges, he was sentenced to terms of penal servitude which amounted effectively to six and a half years, comprising a minimum term of four and a half years and an additional term of two years. He has appealed against his conviction upon two of the three counts to which he had pleaded not guilty, and has sought leave to appeal against sentence. The evidence 3 The four charges arise out of events which occurred in September 1996. The complainant in each of them was a young woman who, like the appellant, was addicted to heroin. They had met about two months earlier at a methadone clinic in Coffs Harbour. At the time she was twenty years old, and he was thirty-six. They developed a friendship but, as will be seen, the extent to which the relationship became intimate was a matter in dispute. 4 The appellant lived in a caravan at a beach-side caravan park. It was the Crown case that, one afternoon on or about 13 September 1996, the complainant went to his caravan, where she and the appellant drank and talked for a while. Later, the appellant forced himself upon her sexually. Despite her protests, he held her down on his bed, removed her jeans, pulled her underpants down below her knees, and penetrated her vaginally. He ejaculated inside her. This was the subject of the first count, sexual intercourse without consent. 5 She got up from the bed, intending to leave. Inadvertently, she knocked over a bottle of beer which was on a bedside table. She apologised to the appellant and bent over to pick the bottle up, when he punched her forcefully to the right side of her face. She asked him why he had done that, and he said that he thought that she was going to hit him with the bottle. This incident gave rise to the second count, assault occasioning actual bodily harm. 6 The complainant's evidence continued that she dressed and ran out of the caravan. The appellant pursued her and she fell to the ground. He picked her up, and effectively restrained her from leaving until the next morning. 7 The effect of the appellant's evidence about this incident was that the complainant had spent the night with him voluntarily, they had consensual sexual intercourse, and he did not inflict any violence upon her. It will be necessary to examine the evidence relating to the first two counts in greater detail when dealing with the grounds of appeal. 8 On the other hand, a detailed examination of the evidence relating to the third and fourth counts, also alleging assault occasioning actual bodily harm, is not required. The third count arose from an incident on or about 16 September 1996, near the premises where the complainant lived, when the appellant seized her by the throat and struck her several times to the face and the side of her head. It was to this count that the appellant pleaded guilty, although his account of the circumstances was significantly different from that of the complainant. 9 The fourth count related to an incident at the appellant's caravan on 25 September 1996. According to the complainant, there was a verbal altercation between them, in the course of which the appellant punched her in the stomach and to the jaw and, while holding her throat, hit her about the head. The appellant's evidence was that they had argued but that he had not assaulted her. The Appeal 10 The appeal against conviction relates only to the first and second counts, arising from the first of the incidents to which I have referred. Three grounds of appeal were argued, the first two of which are related. The first ground relies on fresh evidence and the second asserts that the appellant was incompetently represented at his trial, partly because the evidence the subject of the first ground could, and should, have been led. The third ground is that the jury's verdicts on those two counts are unsafe and unsatisfactory, in the sense that they are not supported by the evidence: Fleming v The Queen (1998) 158 ALR 379 at paras 7-12. 11 Before turning to the first two grounds of appeal, it is necessary to sketch the history of the appellant's legal representation at the trial. As to this, there was filed in this Court an affidavit of the appellant, upon which he was cross-examined. There was also an affidavit by the Sydney solicitor representing the appellant in the appeal, to which was attached correspondence from the solicitor of the Legal Aid Commission at Coffs Harbour who had had the conduct of the trial. Counsel who had appeared at the trial declined to provide an affidavit. 12 The appellant had been represented at committal by a private solicitor in Coffs Harbour. Having been committed for trial, he applied for legal aid and requested that the matter be assigned back to that solicitor. In June 1997 aid was granted, but upon the basis that counsel would be instructed by the employed solicitor of the Legal Aid Commission to whom I have referred. In the following month an appeal to the Legal Aid Review Committee, seeking an assignment to the private Coffs Harbour solicitor, was refused. Early in August 1997 the Legal Aid solicitor saw the appellant at the Coffs Harbour police cells and was informed that the appellant intended to make representations to the Sydney office of the Legal Aid Commission to have his private solicitor retained. It would seem that any such representations were unsuccessful. 13 In the meantime the trial had been fixed for 29 October 1997. In August and September the Legal Aid solicitor wrote to the appellant at the Grafton Correctional Centre, expressing his willingness to act for him. On 13 October he again wrote to the appellant, pointing out that the trial date was imminent and that he remained willing to receive instructions, to brief counsel and to arrange a conference at the earliest opportunity. By that time the appellant was being detained in Sydney. 14 On 17 October the appellant informed the Legal Aid solicitor by telephone that he would instruct him. The solicitor made arrangements for the appellant to be returned to Grafton as soon as possible, and on 22 October he delivered a brief to counsel. However, as it happens, neither he nor counsel saw the appellant until at court on the first day of the trial. Instructions were obtained from him that morning and as the trial proceeded. Ground One - Fresh evidence 15 The complainant was examined by a doctor on 16 September 1996, a few days after the sexual assault was said to have occurred, and he took vulval and vaginal swabs and smears and a blood sample. Subsequently, those specimens were conveyed to a forensic biologist, together with a blood sample from the appellant and two pairs of her underpants. How there came to be two pairs of underpants was not explained in evidence at the trial. However, in a statement to the police of 28 September 1996, the complainant said that on the morning of the medical examination a sexual assault counsellor at Coffs Harbour Hospital told her to collect the clothing she had been wearing at the time of the sexual assault. It appears that she was unsure which of two pairs of underpants she had been wearing at that time, so she gathered both of them. 16 A certificate of the forensic biologist was in evidence. It disclosed that semen was detected on the vulval and vaginal smears and on the crotch area of both pairs of underpants. DNA testing was performed on the vulval and vaginal swabs, but not on the underpants. It was found that the DNA on the swabs could have come from the appellant, approximately one person in 9,000 of the general population having his DNA profile. 17 In October 1998, the legal representatives of the appellant in this Court had the biologist conduct DNA analysis of both pairs of underpants. The biologist issued a further certificate, which constitutes the fresh evidence relied upon for the purpose of this ground of appeal. As to one of the pairs of underpants, she found the DNA profile to be the same as that on the vulval and vaginal swabs. She concluded that it could have come from the appellant but not from the complainant. She added, "Assuming the DNA on these items comes from one individual, approximately one person in 10,000 of the general population has this DNA profile." On the other pair of underpants she found a mixture of DNA types from at least two people. As to this, she reported that the appellant could not be excluded from that mixture but the complainant could. 18 As observed above, there was conflict between the evidence of the complainant and the appellant about the extent to which their relationship had become a sexual one. The complainant said that they had been intimate on one occasion prior to the alleged sexual assault, but not otherwise. In her statement she said that he had not ejaculated on that occasion, although this did not emerge in evidence at the trial. The appellant said that a sexual relationship commenced only a matter of weeks after their meeting and that they had had intercourse on 14 September 1996, a day or so after the sexual assault was said to have occurred. 19 The solicitor and counsel representing the appellant at the trial did not consider DNA testing of the underpants necessary, as the presence of semen on both pairs was consistent with their client's instructions that consensual intercourse had taken place on the occasion complained of and again on 14 September. However, on appeal it was submitted that this was to misunderstand the potential significance of the DNA testing. 20 The argument was to this effect. From the new DNA evidence it was open to the jury to infer that the appellant's semen was on both pairs of underpants. How could that be if, as the complainant claimed, she had had intercourse with the appellant on only two occasions, on one of which he had not ejaculated? Evidence that she had had intercourse with the appellant more often than she was prepared to allow would have a bearing on the issue of consent, and on her credibility generally. 21 The force of these arguments may be acknowledged. On the other hand, the Crown prosecutor in this Court advanced another explanation for the presence of the appellant's semen on both pairs of underpants which is consistent with the complainant's evidence. We received into evidence the Sexual Assault Referral Unit protocol prepared by the doctor who examined the complainant on 16 September 1996. The doctor's notes in that document disclose that the complainant had changed her clothing since the alleged sexual assault, but had not showered, bathed or douched. This gives rise to the possibility that semen still inside her body as a result of the sexual assault had been deposited on to the underpants into which she had changed. Accordingly, the appellant's semen might have been found on those underpants as well as the pair she had been wearing at the time of the incident. 22 It is true, as counsel for the appellant in this Court pointed out, that these matters were not ventilated at the trial, and any explanation the complainant might have offered for the presence of the appellant's semen on both pairs of underpants would have been a matter for the jury to assess. I might add that it may well have been necessary to lead expert evidence about how long a woman might continue to secrete semen after an act of intercourse. All this assumes, of course, that the jury would have inferred from the evidence of the biologist that it was the appellant's semen on both garments. Necessarily, her certificate falls far short of establishing that proposition. 23 For these reasons, it is difficult to assess what probative force, if any, this evidence would have had at the trial. The certificate before the jury disclosed the presence of semen on both pairs of underpants and the jury may have inferred, in any event, that it was the appellant's. There was no evidence that the complainant had had sexual relations with any other man during the relevant period, although she was not asked about that. In the circumstances of the case, questions along those lines might have been permissible by virtue of s409B(3)(f) and (5) of the Crimes Act 1900, but this does not appear to have been explored at the trial. 24 The principles governing the approach of a Court of Criminal Appeal to fresh evidence were succinctly expressed by Gibbs CJ in Gallagher v The Queen (1985-86) 160 CLR 392 at 395-6. Normally, it should appear that the evidence could not with reasonable diligence have been produced at the trial, although this is not an inflexible requirement. The evidence should be apparently credible and it should be such that, if believed, it might reasonably have led the jury to return a different verdict. 25 In Gallagher (at 402) Mason and Deane JJ formulated that last test as whether there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant if the new evidence had been before it in the trial. It is that formulation which has gained currency in recent years: Mickelberg v The Queen (1989) 167 CLR 259 per Mason CJ at 273; R v Hemsley (CCA, unreported, 8 December 1995) per Hunt CJ at CL at pp4-5. However, the cases recognise that the test can be expressed in different ways and that the ultimate question is whether the absence of the fresh evidence at trial has led to a miscarriage of justice. 26 In the present case, there is no doubt about the credibility of the new evidence. Counsel for the appellant in this Court conceded that it could have been led at the trial. Indeed, as I have said, he argued that the fact that it was not was the result of a lack of reasonable diligence on the part of those then representing the accused. This would not dissuade me from upholding this ground of appeal if I were satisfied that the evidence might reasonably have led the jury to return a different verdict. For the reasons I have given, I am not so satisfied. No miscarriage of justice having been established, I am of the view that this ground has not been made out. Ground Two - Representation at trial 27 This ground complains that the trial of the appellant in respect of the first two counts miscarried because of the incompetence of counsel then representing him. Such a ground must be approached in the light of the principles considered in R v Birks (1990) 19 NSWLR 677, and summarised by Gleeson CJ at 685. It must be shown that the inadequacy of the appellant's representation was such as to have led to a miscarriage of justice. 28 For the reasons given in relation to the previous ground, I do not consider that any such conclusion could be drawn from the failure to arrange for DNA testing of the underpants. However, other aspects of the conduct of the trial were relied upon. 29 Firstly, it was said that counsel for the appellant had introduced material highly prejudicial to him in the course of cross-examination of the complainant. In the small hours of 16 September 1996, following the incident the subject of the third count, the complainant attended a police station and reported to an officer what had just occurred. Counsel for the appellant cross-examined her about what she had said on that occasion, apparently by reference to that officer's statement. In the course of doing so, there was the following exchange: Q: And did the police officer say to you "How do you know Mark Armstrong"? A: I'm not sure, I don't remember. Q: And did you say to him "I've known him for awhile, I've scored off him a few times" did you say that? A: No, I don't remember saying that. 30 A little later counsel was cross-examining the complainant about her movements prior to the incident giving rise to the fourth count. In the course of putting to her the appellant's instructions, he established that she had gone to a hotel in Coffs Harbour with a friend. The following ensued: Q: You were with a friend and Mark came into the hotel, Mark Armstrong? A: Yeah, or he was there, yeah. Q: And you asked him if he could score some heroin for you? A: No I didn't say that. 31 The line of cross-examination on both occasions appears to have been legitimate and purposeful, and the contrary was not suggested. The argument was that there was no need to ask the particular questions set out above, which may have conveyed to the jury that the appellant was a heroin dealer. I doubt that the second passage, standing alone, would carry that implication but, certainly, the first passage suggests that the appellant had supplied the complainant with heroin on occasions. 32 As I have said, the evidence disclosed at the outset that the complainant and the appellant were heroin addicts. Indeed, it was in this context that they met. To an extent, counsel for the appellant at the trial relied upon the complainant's use of heroin as a matter bearing upon the reliability of her evidence. There was no examination of the meaning of the word "score" in the drug sub-culture. I doubt if the jury would have understood the questions quoted above to suggest any more than that the appellant sometimes shared with the complainant heroin which he had obtained. Certainly, they fall well short of conveying that he was a dealer, as that term is popularly understood. The prejudice to the appellant, if any, would have been minimal. 33 Next, it was said that counsel failed to cross-examine the complainant about a matter bearing upon her relationship with the appellant. In cross-examination, the complainant gave evidence that on 18 September 1996 she went to the appellant's caravan with a friend, Christine Wicks, to recover a jacket and jumper which she had left there on the occasion of the alleged sexual assault. The appellant was not there, and she reached in through the caravan window and removed the jacket and jumper. (She also removed a bed sheet, but that is not material for present purposes.) 34 Ms Wicks, who was called in the Crown case, gave a significantly different account of this event. According to her, the complainant asked her to accompany her to the caravan, saying, "I have to pick up some clothes, I've got no clothes". At the caravan the complainant went into an annexe, where she put a number of items of clothing into a bag. Ms Wicks saw her put in a pair of jeans and some underwear, together with what "looked like a lot of dirty clothes". 35 It was open to the jury to infer from this evidence that virtually the whole of the complainant's wardrobe was at the appellant's caravan. This, of course, would lend support to the proposition that her relationship with the appellant had been a deal more intimate than she had acknowledged. The complaint before us was that Ms Wicks' account had not been put to her in cross-examination, so that the jury might gauge the credibility of her reaction to it. 36 Why this material was not put to the complainant in cross-examination is unclear, and I would certainly draw no adverse inference about the propriety of counsel at the trial from the fact that it was not. For present purposes, all that matters is that the jury had the evidence of Ms Wicks and, no doubt, the extent to which it was in conflict with that of the complainant did not escape them. Equally, they must have been well aware of its significance on the question of the relationship between the complainant and the appellant. 37 Finally, it was argued that counsel at the trial should have sought an adjournment, so as to be able to obtain full instructions from the appellant and to prepare the case more thoroughly. Certainly, it is regrettable that counsel and his instructing solicitor did not confer with the appellant before the first day of the trial. However, it appears from the history of his legal representation, outlined earlier in this judgment, that this was not the result of any lack of diligence on their part. In any event, counsel had had the brief for the week prior to the trial and, at least, had been able to familiarise himself with the Crown case. 38 The appellant gave evidence at the trial and two witnesses were called to support one aspect of his account. Given the issues raised by his evidence, it appears that Crown witnesses, particularly the complainant, were cross-examined appropriately and the salient features of his case were put to them. Nothing in the transcript suggests that the presentation of his case was ill-prepared. Indeed, he appears to have been defended vigorously and competently. 39 The arguments advanced in support of this ground of appeal, even viewed in combination, do not persuade me that the conduct of counsel at the trial has given rise to a miscarriage of justice. This ground also is not made out. Unreasonable verdicts 40 The last ground of appeal is that the unsatisfactory features of the complainant's evidence are such that the jury, acting reasonably, should have had a reasonable doubt about the appellant's guilt of the first two counts: M v The Queen (1994) 181 CLR 487. It was pointed out that her evidence in relation to those two counts was uncorroborated. Reliance was placed on the evidence, already referred to, tending to support the appellant's assertion that their relationship had been a sexual one. Reference was made to inconsistencies between her evidence in chief and in cross-examination about one matter, and between her evidence and her statement to police about another. The complainant had seen her mother on the day after the incident, and had told her that the appellant had inflicted physical violence on her but said nothing about the sexual assault. Indeed, she did not complain of the sexual assault until she spoke to the police officer on the occasion to which I have earlier referred, in the early hours of 16 September, several days after the incident. 41 As I have said, the appellant gave evidence. About two days after the incident, the appellant and the complainant visited two friends of his at a house in Coffs Harbour. Reliance was placed upon the evidence of those two friends, called in the defence case, which was to the effect that the appellant and the complainant seemed to relate to each other as a normal couple would. However, according to one of those witnesses, the complainant appeared to be affected by a drug to the extent that she was "sort of like falling asleep" from time to time. 42 These inconsistencies and conflicts in the evidence are of a kind and extent commonly encountered in cases such as this. Delay in complaint is not uncommon, particularly when the offender is not a stranger to the complainant. The jury might well have accepted the complainant's explanation that she was embarrassed to tell her mother about the sexual aspect of the appellant's behaviour. Equally, given the circumstances, it is not surprising that the complainant continued to associate with the appellant in the days after the incident. Her evidence was that, when they visited his friends at the house in Coffs Harbour, she attempted to leave but the appellant walked her back inside again. It is understandable that the two witnesses might not have observed anything untoward. 43 All the cases, including M , emphasise the respect which a Court of Criminal Appeal must afford to the jury's function as the judges of the facts and to their undoubted advantage in having seen and heard the witnesses. In the present case, notwithstanding the criticisms that might be made of her evidence, it was clearly open to the jury to accept the complainant as a witness of truth on essential matters. It cannot be said that, acting reasonably, they ought to have had a reasonable doubt about the appellant's guilt. This ground also is not made out. 44 Accordingly, I would propose that the appeal against conviction be dismissed. Sentence 45 As I have said, the appellant was sentenced effectively to six and a half years penal servitude, comprising a minimum term of four and a half years and an additional term of two years. His Honour achieved this by passing cumulative sentences for each of the charges of assault occasioning actual bodily harm aggregating two and a half years, and by accumulating upon that term a sentence of four years for the sexual assault, divided into minimum and additional terms each of two years. (A minor adjustment to the minimum term was made to allow for a discrete period of pre-trial custody.) His Honour found special circumstances arising from the accumulation of the sentences and the fact that the appellant, given his long standing drug addiction, would require an extended period of supervision upon his release. 46 It was argued that his Honour erred in accumulating the sentences, as the four offences should have been seen as a phase of criminality within the context of the appellant's relationship with the complainant. It was said that, in any event, in arriving at the various sentences his Honour gave insufficient consideration to their totality. In addition, his Honour was said to have given inadequate weight to the appellant's history of drug addiction and to the fact that his criminal record, admittedly lengthy, contains no sexual offences or offences of violence. 47 In his remarks on sentence, his Honour made it clear that he was accumulating the sentences with an eye to the totality of the appellant's criminality. In this Court reliance was placed on sentencing statistics for sexual assault and assault occasioning actual bodily harm, but these are of little assistance in this case. His Honour was dealing with offences of both kinds committed upon the complainant over a period of about two weeks. He considered the appellant to have "exercised a form of dominion over the young and impressionable complainant". That conclusion, although challenged in this Court, was clearly open. Equally apt was his Honour's observation that the complainant, having been drawn to the appellant, "paid the penalty of being bashed and abused". 48 Rightly, his Honour viewed the appellant's course of conduct most seriously. I can detect no error in his approach to his sentencing task. The total sentence is substantial but, even allowing for subjective matters favourable to the appellant, it cannot be said to be manifestly excessive. Nor can it be said that the relationship of the minimum term to the total sentence is anything but appropriate. 49 I would propose that leave to appeal against sentence be granted but, again, that the appeal be dismissed. IN THE COURT OF CRIMINAL APPEAL 60614/97 WOOD CJ at CL HIDDEN J SMART AJ Thursday 3 June 1999 R v MARK ANTHONY ARMSTRONG Reasons for judgment 50 SMART AJ : I agree with Hidden J. ********** 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.