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." Ground 1 18 Dr Judith Perl was a pharmacologist who gave evidence about the drug Temazepam. This drug (which is sold under various commercial labels) was detected by analysis of a sample of blood taken from the complainant after she was brought to Cooma Hospital. There was no issue at trial contradicting the proposition that by the time the complainant reached the bedroom on the evening of 5 September she had consumed some of this drug. Indeed no objection was taken to his Honour's telling the jury that this was obviously so. 19 It was contended by counsel appearing in the appeal (who did not appear at trial) that the conduct of the Crown case was exclusively focussed upon the allegation that it was the appellant who administered the drug to the complainant. This contention was advanced in relation to all grounds, particularly grounds 1 and 3. The issue was not left to the jury on the first count on that limited basis and the absence of objection confirms that the conduct of the trial was in accordance with his Honour's charge: "I should add, so far as this count (count1) is concerned, the Crown does not have to prove where that (Temazepam) came from in the sense of whether it was administered by the accused, the complainant or someone else but the Crown would ask you to infer from the presence of the Temazepham in the blood sample taken at 1o'clock or thereabouts the next the day that she must have consumed it by the time she got into the bedroom." 20 So far as the first count was concerned the evidence that the drug had been consumed was relevant to the jury's ultimate conclusion about whether the complainant was asleep or unconscious when the admitted act of intercourse took place. 21 Dr Perl testified that the drug was used to induce sleep and had muscle relaxant properties producing not only sedation and drowsiness but dizziness and impaired coordination. Amnesia was also possible. There was evidence that the complainant was seen to buckle at the knees shortly before she went to the bedroom and persons in the lounge had prevailed upon the appellant to assist her in moving there. There was also evidence of the complainant suddenly appearing to fall asleep shortly after singing the Austrian song. 22 Dr Perl continued: "The symptoms described by the complainant of feeling extremely tired and disoriented and then losing consciousness are perfectly consistent with the drug Temazepam." 23 The complaint of the appellant advanced in relation to the first ground is focussed upon a comment by his Honour to the jury that the evidence from Dr Perl was inconsistent with the accused's assertion that the complainant was awake when she was in the bedroom. 24 The complaint should be analysed in the context of his Honour's remarks which were specifically directed to argument advanced on behalf of the Crown. In entirety what his Honour had said was: "Well members of the jury, the Crown argues that when you look at all the evidence and all the circumstances that they rely on you would be satisfied that those circumstances were made out. You would be satisfied that she was very tired. That she was tired because of the Temazepam and the liquor and the lack of sleep and that the only conclusion that you could come to was that she was asleep or became unconscious very shortly after she got into the room and that is consistent, you might think, with the evidence of Dr Perl about the effect of the combination of that particular drug and liquor. That evidence from Dr Perl about that is not contradicted and it is inconsistent with the accused's assertion that she was awake during that period." 25 In this appeal attention is directed towards other evidence of Dr Perl that the particular drug was at the low end of strength in the scale of sleeping tablets. Mr Goold, a solicitor by profession, gave evidence to like effect in the course of cross examination. It is argued that the circumstance that the ingestion of the drug (particularly in combination with alcohol which would enhance its effects) was consistent with the complainant's description of events, did not exclude the possibility that the appellant's assertion that the complainant was awake was correct. 26 It is to observed that the context of the observation was in the summary of Crown argument. I would read his Honour's statement as simply saying that the evidence of Dr Perl that consumption of the drug in the circumstances was consistent with the complainant's version of events was capable of being contradictory of the assertion by the accused that the complainant was awake. 27 No application for redirection or amendment of direction was made by counsel at trial and this suggests that what was said was not seen as being an indication that the assertion by the appellant could not be accepted. The reference to the absence of contradiction in his Honour's remarks is to the absence of contradiction concerning the effect of the combination of the drug and liquor. That this was to be understood, is confirmed by his Honour's summary of the argument on behalf of the appellant to which he turned shortly thereafter which included references to the contention of the appellant that the complainant might have been tired but was not too tired to engage in consensual intercourse before she went to sleep. 28 I would reject this ground. Ground 2 29 As appears from the foregoing the complainant gave no evidence of any recollection of participating in an act of intercourse with the appellant and the Crown case on this issue was circumstantial in that, if it was concluded from all the evidence that the complainant was asleep or unconscious when the act of intercourse admitted by the appellant took place, it would be inferred that she was not consenting and the appellant must have known that she was not consenting. There was no direct evidence of the complainant having fallen asleep, her memory being limited at the termini above noted and the Crown relied upon circumstantial evidence to support the inference that she went to sleep or became unconscious shortly after she entered the room. 30 This was not a case of direct assertion by the complainant of the commission of crime so as to parallel the facts in R v Murray 1987 11 NSWLR 12 but it was contended that conviction required the acceptance of the substance of her evidence and therefore it was appropriate to require a direction specifically charging the jury to be satisfied beyond reasonable doubt of the truthfulness of the account of the complainant before they could convict: compare R v V 1998 100 A Crim R 488. 31 In R v Davis (1999) NSWCCA 15 Wood CJ at CL (Spigelman CJ and McInerney J agreeing) wrote: "A Murray direction is appropriate where one witness stands alone in providing proof of the Crown case. That is not the present case, because there was evidence of other circumstances consistent with the complainant's evidence in the form of her distress and prompt complaint, as well as the medical evidence, and the fact of her night walk home over a lengthy distance." 32 There was similar evidence in this case although, somewhat favourably to the appellant, his Honour directed the jury that the complainant's distressed condition was not available "to bolster or support the complainant's credibility in some way" and that the evidence of distress must not be used in the process of actually determining the guilt of the appellant. 33 The situation that the complainant was on the verge of sleep or unconsciousness or, indeed, drifting in and out from it was not dependent only upon her evidence but the jury had available to it a considerable volume of evidence from the persons who had been in the lounge of the lodge. It matters not whether those persons considered the presentation of the complainant to be the result of jet lag, consumption of intoxicating liquor or drugs or all of them. It was open to the jury to use that evidence to contribute towards their fact finding as to whether the complainant was or was not conscious at the relevant time. 34 In my view it suffices to answer the complaint raised in this ground to reproduce part of the supplementary direction given by his Honour in response to a question from the jury seeking assistance on the matter of drawing inferences. His Honour said: "In the context of this case and of count 1 you could not find the accused guilty in relation to count 1 and I will concentrate here on the matter in issue, namely the issue of consent and whether the complainant was asleep or unconscious or not. If you could not exclude beyond reasonable doubt the possibility that she was not asleep or not unconscious, in other words you could not exclude beyond a reasonable doubt the possibility that at the time of the act of intercourse that she was in fact awake then you would have to return a verdict of not guilty because such a conclusion would mean that you were not persuaded of the complainant's reliability and credibility on that aspect of the case. You could only find the accused guilty on count 1 if, having satisfied yourself as to the other two elements, you were satisfied beyond a reasonable doubt that all inferences so far as the issue of consent and the complainant's being asleep or unconscious is concerned that you could exclude all inferences favourable to the accused and you are satisfied beyond a reasonable doubt that the complainant was in fact either asleep or unconscious in which case you would have little difficulty in finding that she did not consent." That direction was entirely apposite and focussed upon the critical fact which the jury had to consider. Again that direction drew no complaint from counsel at trial and I would not uphold this ground. 35 The appellant referred to Shepherd v The Queen 170 CLR 573 and in particular to the remarks of Dawson J at p579 where his Honour drew attention to the necessity for a direction that an essential intermediate fact be proved beyond reasonable doubt when the Crown was reliant upon a circumstantial case. The issues which the Crown were required to prove were that the complainant did not consent to the act of intercourse and that the appellant knew that she was not consenting. The fact from which those conclusions were sought to be drawn was the fact that she was asleep or unconscious at the time. As the extract which I have recited shows, his Honour specifically told the jury that they needed to be satisfied beyond reasonable doubt of that fact, indeed he told them that if there was a possibility that the complainant was awake they should acquit the appellant. 36 To postulate that there was an obligation upon his Honour to add to his directions that there was need to be satisfied of the complainant's credibility beyond reasonable doubt is a requirement only to overstate the obvious, for what is suggested is no more than that his Honour should have said: "if you doubt that the complainant was asleep or unconscious it leaves open the necessary possibility that she was awake". 37 I would reject this ground. Ground 3 38 I turn next to the assertion of inconsistency in the verdicts on the two counts. Undoubtedly it was the Crown case that the appellant administered the stupefying drug as such were the very terms of the second count of the indictment. Evidence was called about the access of the appellant to that drug by means of a prescription which had been filled at a pharmacy in the previous month. The Crown called evidence of the presentation of the contents of small Schnapps glasses by the appellant to the complainant which she accepted from him and consumed. In common parlance, the Crown case was that the appellant spiked her drink for the purpose of removing the necessity for his obtaining her consent to his having intercourse with her. 39 It can be noted that the complainant conceded that she had taken a sleeping tablet in connection with her journey to Australia but she denied any further voluntary ingestion of a drug of that nature. The evidence was that the consumption of the particular drug and quantity in the circumstances conceded by her would have led to it having been dissipated from her blood by the time the test was made and the test was consistent with that in the sense that it was not traced in the sample. 40 The trial was fought on the basis that the Crown asserted the administration of Temazepham by the appellant and, given that it was common ground that the blood test showed the presence of that drug in the complainant's system at the relevant time, the alternative was that the complainant's denial that she had administered the drug to herself was false. But, to say this is only to recognize the issue raised by the second count. Proof of the first count, upon which the appellant was convicted, was left to the jury on the basis, inter alia, of the passage of his Honour's directions set out above. 41 The approach to be taken by an appellate court when a ground such as this is advanced is authoritatively stated in MacKenzie v the Queen 1996 190 CLR 348. 42 The appellant's argument is not postulated upon the basis that there was legal inconsistency but that there was factual inconsistency in the different verdicts upon the two counts. The question can be formulated as an enquiry whether it was open to the jury to have a doubt about the administration of the drug by the appellant and consequently, in the context of the issues at trial, about the reliability of the complainant when she testified that she did not self administer the drug and yet come to the conclusion that she was asleep or unconscious when the appellant engaged in intercourse with her. 43 In my view, such conclusions were open to the jury. There was ample evidence apart from the testimony of the complainant that as she made her way to the room in the lodge she was on the verge of losing consciousness and, as I have said, whether as a result of lack of sleep or for any other reason is not to the point. It was open to the jury to be satisfied in all the circumstances that they had no doubt that the complainant was to be accepted when she testified that she was without conscious memory from the point of attempting to go to sleep on the floor and waking in the bed the following morning and it is not inevitably inconsistent with that to have a reservation about whether the administration of a drug by the appellant contributed to that span of lack of consciousness. 44 The Crown elected to rely upon an extremely limited opportunity of the appellant to administer the drug but it would not be and was not inconsistent for the jury to be satisfied of the essential ingredients of count 1 viz: the occurrence of intercourse (admitted), the unconsciousness of the complainant when it occurred and inevitably therefore, lack of consent and the appellant's knowledge of that lack while declining to find beyond reasonable doubt that he administered the drug found in the blood sample. The jury may well have found that the appellant probably administered the drug but correctly applied the standard of proof to the second count. It was not necessary for the jury to be satisfied beyond reasonable doubt of the complainant's denial of self-administration of the drug, what were required to be proved were the ingredients abovementioned. 45 The second part of this ground proposes that this Court should conclude that the jury ought to have had a reasonable doubt about the guilt of the appellant on the first count. 46 Attention is drawn to a series of matters which are described as unsatisfactory aspects of the evidence of the complainant. No point will be served by repetitively collating all these matters which were obviously available to be canvassed, and no doubt were canvassed, at trial. In the event, it can be said that the complainant's behaviour could be seen as less than prudent and perhaps naive but there would have been no immediate reason for the complainant to believe that she was at risk from a person with whom a homestay had been arranged through her family. One could accept that she would be fortified against any feeling of discomfort that she had by the introduction to the female japanese student who was also occupying the house in Sydney. Given the availability to the jury of the descriptions of the complainant on the verge of collapse when last seen by a large group of persons independent of the appellant and the complainant and the appellant's description of her engagement shortly thereafter in vigorous intercourse I am unpersuaded that it was not open to the jury to conclude that the complainant had been subjected to non consensual intercourse and I am further unpersuaded that given the whole of the evidence they ought to have had a doubt about the Crown allegation. 47 I would dismiss the appeal against conviction. 48 The appellant was sentenced to five years penal servitude divided into minimum and additional terms of two and half years each. He had some prior convictions including for false pretences and assault but for nothing of a sexual nature. 49 It was expressly conceded that in sentencing the appellant the learned trial judge did not make any errors of legal principle or fact finding. It is unnecessary to epitomize his Remarks on Sentence. Argument was limited to contention that the term was manifestly excessive and towards the "top of the range" for offences of this type. The statistics produced by the Judicial Commission in a survey of forty three cases place this sentence within the upper one third of impositions. 50 Given the circumstances of the offence, I am entirely unpersuaded that the sentence was outside of the range of the sound exercise of discretion. 51 I propose that the appeal against conviction be dismissed; that leave to appeal against sentence be granted but that appeal also dismissed. 52 KIRBY J: I agree with Grove 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. 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