Regina v Upton [2000] NSWCCA 305

Reported Decision : 116 A Crim R 298

New South Wales Court of Criminal Appeal

CITATION : Regina v Upton [2000] NSWCCA 305 FILE NUMBER(S) : CCA 60737/99 HEARING DATE(S) : Tuesday 8 August 2000 JUDGMENT DATE : 15 August 2000

PARTIES : Regina v David Cameron Upton JUDGMENT OF : Spigelman CJ at 1; Grove J at 2; Kirby J at 52

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/11/0364 LOWER COURT JUDICIAL Sides DCJ OFFICER :

COUNSEL : T.L. Buddin SC (Crown) W.C. Terracini SC with B.J. Rigg (Applicant) SOLICITORS : S.E. O'Connor (Crown) CATCHWORDS : Criminal Law and Procedure - Sexual Intercourse Without Consent - Direction to Jury Concerning Effect of Stupefying Drug - Acquittal on Count of Administering Drug - Inconsistency of Verdicts - Circumstantial Case - Direction Regarding Credibility of Complainant - Challenge to Adequacy of Charge to Jury R v Murray 1987 11 NSWLR 12 R v V 1998 100 A Crim R 488 CASES CITED: R v Davis (1999) NSWCCA 15 Shepherd v The Queen 170 CLR 573 MacKenzie v The Queen 1996 190 CLR 348 DECISION : Appeal Dismissed

IN THE COURT OF CRIMINAL APPEAL

60737/99

SPIGELMAN CJ GROVE J KIRBY J Tuesday 15 August 2000

REGINA v DAVID CAMERON UPTON

JUDGMENT

1 SPIGELMAN CJ: I agree with Grove J. 2 GROVE J : This is an appeal against conviction following a trial before Sides DCJ and a jury in Sydney District Court. In the event that the appeal fails, leave to appeal against severity of sentence is sought. 3 The appellant was arraigned upon an indictment containing two counts, the first charging that between 5 and 6 September 1997 at Thredbo Village he had sexual intercourse with a complainant without her consent and knowing that she was not consenting and, second between the same dates unlawfully causing stupefying drug to be taken by that complainant with intent to enable him to commit the offence charged in the first count. 4 The jury returned a verdict of guilty on the first count and not guilty on the second. 5 The complainant was a primary school teacher aged twenty six and of Austrian nationality. She arrived in Australia at about 7 am on 3 September and was met by the appellant at the airport. Through a family friend arrangements had been made for her to be accommodated at the appellant's home whilst in Sydney. Upon arrival at the appellant's home at Oatley he showed the complainant to her room and around the house and told her that he usually had a spa at about this time of the day and they went outside to where there was an installation which the complainant described as a "whirlpool". The complainant donned a swimming costume and they made use of the facility. 6 The appellant raised the possibility of the complainant accompanying him on a skiing trip to Thredbo on the following day. She agreed to this as she was a keen skier. 7 Thereafter on that day the complainant travelled by herself to look at some of the sights of the city. She arrived back at the house at about 5 pm. She was introduced to a female japanese student who was also residing at the premises and she presented a bottle of Schnapps which her mother had sent as a gift. 8 There were discussions about the proposed trip to the snowfields. The complainant's version was that she was informed that the only available accommodation included a double bed and that she responded to this information by saying it wasn't a problem so long as the appellant stayed on his side of the bed and did not snore. Later they again used the spa facility. On this occasion she was again wearing her two piece costume but said that she removed the upper portion in response to a statement by the appellant that it was common for women in Australia not to wear that portion of such a swimsuit. Photographs were taken during this activity and the complainant agreed that they might have shown the upper part of her body uncovered but the photographs were not available as she destroyed them as soon as they were developed. 9 The complainant retired to her room and upon awakening overturned a glass of water which was beside her bed. She had not been aware of its presence and raised the matter with the appellant who told her that he had placed it there while she was asleep as he thought she may have become thirsty. The complainant said that she had closed the bedroom door before retiring. 10 They departed for Thredbo the following day at about 10 am travelling by a circuitous route and not arriving at the village until about 9 pm. They made up the double bed. There was evidence that there was a trundle bed located underneath but the complainant said that she did not see it. 11 The complainant testified that her sleep was disturbed during the evening as the appellant was not keeping to his allocated side and that she felt constant intrusions of contact with her body either by his hand or foot. She remonstrated with him. 12 On the following day they proceeded onto the ski slopes. The appellant left before the complainant and there was a brief encounter when she returned to the room. The appellant had left by the time she returned from showering. The complainant spent some time with other guests in the lodge and at about 5 pm received a message that the appellant wanted her to join him at a bar in the village. 13 She proceeded to that location where she met the appellant and joined his company together with a couple Mr and Mrs Goold and a man whose name she recollected as Tom. They partook of some drinks, dined and later returned to the lodge. At the lodge they joined a number of guests in the communal area. Whilst there the complainant was asked to sing a traditional Austrian song and she remembered complying with this request. 14 The complainant's next memory is of being in the bedroom and taking the bed clothes and preparing to sleep on the floor. Thereafter she awakened at about 7.30 am and discovered that she was wearing her pyjama top and nothing else. She was in the bed. The complainant saw her clothes lying about the floor and the appellant asleep in the bed. She wakened him and asked him a number of questions about what had occurred including a direct question as to whether they had "had sex" to which he replied in the affirmative. He also replied in the affirmative to a question whether he used a condom. 15 The complainant said she then rushed to the shower and washed. She dressed and left the room and the lodge. She ran to a nearby lodge where a woman telephoned Mr and Mrs Goold (whom the complainant had met the previous evening) and thereafter the complainant was taken to Cooma Hospital. 16 There was considerable detailed evidence from the persons whom the appellant and the complainant had encountered during this brief span of time in Thredbo Village. There was evidence as to the number of glasses of wine or other intoxicating liquor consumed by either the complainant or the appellant. There was also evidence of a conversation between the appellant and Mr Goold in which the appellant denied that he had had sexual intercourse with the complainant. The appellant, who gave evidence, did not dispute this conversation but said that he had regarded it as none of Mr Goold's business whether he had intercourse with the complainant or not. The appellant agreed that on the day of the complainant's arrival they had used the spa facility at his home on two occasions but denied that it was his suggestion that the complainant remove any part of her swimming costume. He asserted that whilst in the tub they had been massaging each other's feet and shoulders and that ultimately they had removed each other's clothing and engaged in consensual sexual intercourse. The appellant formally admitted engaging in sexual intercourse on the occasion charged in the first count of the indictment but contended that this was again consensual activity. 17 The grounds of appeal were expressed as follows: "1. His Honour the trial judge erred in directing the jury that the uncontradicted evidence of Dr Judith Perl about the effect of the drug Temazepam, and liquor, was inconsistent with the Appellant's assertion that the complainant was awake after she got into the room: Summing Up 24 September 1999, 11.2 2. The trial judge failed to direct the jury adequately or at all as to the care with which they should scrutinise the complainant's evidence particularly regarding her assertion of having no recollection of the act of intercourse. 3. The verdict is unreliable/unable to be supported by the evidence: (i) The conviction on count 1 is inconsistent with the verdict of Not Guilty on Count 2; and (ii) The evidence generally was insufficient to support the conviction on Count 1."