R v Wiggins, Scott Lyle [2001] NSWCCA 60

New South Wales Court of Criminal Appeal

CITATION : R v Wiggins, Scott Lyle [2001] NSWCCA 60 revised - 20/03/2001 FILE NUMBER(S) : CCA 60310/00 HEARING DATE(S) : 22 February 2001 JUDGMENT DATE : 15 March 2001

PARTIES : Regina v Scott Lyle Wiggins JUDGMENT OF : Mason P at 1; Giles JA at 2; Whealy J at 61

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/11/1202 LOWER COURT JUDICIAL Davidson DCJ OFFICER :

COUNSEL : P Byrne SC - Appellant M C Marien - Crown SOLICITORS : Hughes & Taylor - Appellant S E O'Connor - Crown CATCHWORDS : APPEAL AGAINST CONVICTION - sexual intercourse without consent - essential conflict over whether complainant asleep at the time - appeal on ground verdict unreasonable - on consideration of facts, not unreasonable - Fleming v The Queen (1998) 197 CLR 250, Jones v The Queen (1997) 191 CLR 439 and M v The Queen (1994) 181 CLR 487 applied - regard to be had to trial judge's remarks as to credibility of witnesses - R v Carbone (2000) NSWCCA 387 referred to. D DECISION : Appeal dismissed.

IN THE COURT OF CRIMINAL APPEAL CCA 60310/00 DC 99/11/1202

MASON P GILES JA WHEALY J

Thursday 15 March 2001 REGINA v Scott Lyle WIGGINS JUDGMENT

1 MASON P: I agree with Giles JA. 2 GILES JA: The appellant was found guilty on a charge of sexual intercourse without consent. The three elements in the charge were (i) having intercourse; (ii) without the consent of the complainant; (iii) knowing that the complainant was not consenting. It was common ground that intercourse had taken place in that there had been penetration of the complainant. On the Crown case, the penetration had occurred when the complainant was asleep, and of the other two elements in the charge she had not consented and the appellant had known that she was not consenting. The appellant gave evidence. He maintained that the complainant was not asleep at the time, and that she behaved in a manner which showed that she consented and led him to believe that she was in fact consenting to the intercourse. 3 The appellant acknowledged the propriety of the conduct of the trial, and his appeal was not concerned with the admission of evidence or the directions given to the jury. The sole ground of appeal was - "The verdict of the jury is, having regard to the evidence, particularly to the evidence of Tracey Christine O'Rourke (p 51 ff), Simon Peter Graham (p 154 ff) and the appellant (183 ff), unreasonable". Material evidence in summary 4 The relevant events occurred at or after a New Years Eve party given by Mr David Campbell and his then girlfriend Ms Katherine Stephenson, now his wife, on 31 December 1998 - 1 January 1999. The party was held at the home of Mr Campbell's parents. It was attended by the complainant, the appellant, and many other persons, including the appellant's girlfriend Ms Tracey O'Rourke, Mr Simon Graham, Ms Nicole Rigg, Mr Peter Frazer and Mr Matthew Pittard. Most of those attending, including the complainant and the appellant, had gone to school with one another and had been friends for a number of years. The persons I have mentioned were in the range 22-26 years of age. 5 The complainant arrived fairly late at the party, having had an argument with her boyfriend and left him to go to the party alone. The appellant and Ms O'Rourke were already at the party when the complainant arrived. An alcoholic punch, home brewed beer and other alcoholic drinks were consumed, as were jellies and pieces of watermelon made with and soaked in liqueurs. At midnight those at the party hugged and kissed, and then many of them began to use the swimming pool and spa. The complainant and the appellant were among them. The complainant changed into a one piece swimming costume and wore board shorts over it. The appellant wore a swimming costume. 6 At a time which the complainant put at about 2 am she left the swimming pool and went to the bedroom in which she had arranged to spend the night. The bedroom was on the first floor of the house, and was designated bedroom 3 at the trial. Next to the bedroom, between it and the bedroom designated bedroom 2 at the trial, was a bathroom. The complainant took off her board shorts and put a dress over her swimming costume, a loose fitting knee length dress with buttons down the front. She was affected by alcohol, and felt unwell. She went to the bathroom and vomited repeatedly in the toilet. According to the complainant, she then went to bed and slept. 7 The complainant thought that at one stage she was woken by Mr Graham, who asked her how she was. She said that told him she was okay and just needed to sleep, and closed the door and got back into bed and went back to sleep. Mr Graham said that he went to get changed in the bathroom and knocked on its door, and that the complainant opened the door and he saw some vomit on a towel and around the toilet basin. He said that he spoke to the complainant briefly and saw her get into bed, pulled the bed covers up over her, and closed the door to bedroom 3 as he left. 8 The complainant's evidence then was - "CROWN PROSECUTOR: Q. And what happened next once you'd got back in the bed and pulled the covers back over? A. Next thing I remember hearing was just this screaming and yelling and I also remember Scott being on top of me. I know it sounds like really bizarre because people have said to me 'How can you not know there was someone on you?', but the thing that stood out so much at first was Tracey, Scott's girlfriend had walked in and she was yelling out that I was a slut, and all this sort of stuff. Q. I'll just stop you there [name of complainant], we'll take it a bit slower. You heard yelling - sorry - you said that you remember going back to bed and pulling the covers over you, and then the next thing you remember is this yelling and screaming. Do you have any idea what's the time gap between you going back to bed, pulling the covers over you and hearing this yelling and screaming? A. I'd say probably about two hours, because I think when I got back to bed in - I'd been to the bathroom - I think it was about two thirtyish, and I think this happened at about 5. Q. The yelling and screaming, whose voice was it that you heard? A. Tracey's, Scott's girlfriend. Q. Could you remember whether she was saying anything, or was it just a yell, screech? A. It was a screeching and I remember her saying something about "How could you do this to me Scott?" and then yelling out "You slut" to me. Q. What did you notice about Scott at that particular time that you heard the yell? A. He was lying on top of me, he was also inside me. Q. When you say 'inside' what do you mean by 'inside'? A. He had his penis inside my vagina. Q. Did you notice anything about your clothing at that particular stage? A. I was still - had my swimmers and everything on, I hadn't taken any of my clothes off. Q. When you say Scott was on top of you, was he physically lying on top of you, or how was he actually positioned? A. Just straight on top of me. My legs were flat on the bed. Q. And what happened after you heard that scream and that yell, what happened next that you can remember? A. I remember him like not getting off, I just kept thinking just please get off me, but I was in, like shock, I couldn't move, and eventually I think someone came in and dragged him off and he pulled him outside." 9 The complainant said that she was lying flat on her back in the bed when the appellant was lying on top of her. She heard "a lot of screaming and yelling" in the hallway outside the bedroom, and recognised the voices of the appellant, Ms O'Rourke, and she thought also Mr Campbell and Mr Graham. 10 In cross-examination the complainant's attention was drawn to a statement she had made to the police on 3 January 1999. The evidence was - "Q. If I may, I'll just remind you of the exact words you used to the police and see if you agree that that's literally what you told them - you said this, at page 4 of your statement 'I can't remember anything else until I was awoken to a very loud screaming, it was a loud shrieking, it was continual. I then looked to where it was coming from and I saw Tracey standing near the doorway screaming. She said "Scott, how could you do this to me?"' and then she apparently added the words 'You slut'," that's what you told the police didn't you? A. Yes. Q. And then you said 'I then turned to see what she was yelling at and I saw Scott was lying on top of me', that's the way you described it to the police didn't you? A. Yes."