New South Wales Court of Criminal Appeal CITATION : R v. GLEKIS [2003] NSWCCA 348 HEARING DATE(S) : 11 November 2003 JUDGMENT DATE : 25 November 2003 JUDGMENT OF : Hodgson JA at 1; Grove J at 34; Howie J at 35 DECISION : Appeal dismissed. CATCHWORDS : CRIMINAL LAW - Appeal against conviction - Whether verdict unreasonable or illogical. Black v. The Queen (1993) 179 CLR 44 CASES CITED : MFA v R (2002) 193 ALR 184 MacKenzie v. R. (1996) 190 CLR 348 PARTIES : Regina - respondent Matthew Glekis - appellant FILE NUMBER(S) : CCA 60255/03 COUNSEL : Mr. M. Thangaraj for appellant Ms. E. Wilkins for respondent Crown SOLICITORS : J. Moustacas for appellant C.K. Smith for respondent Crown LOWER COURT District Court JURISDICTION : LOWER COURT 02/11/0684 FILE NUMBER(S) : LOWER COURT Shillington ADCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL CCA 60255/03 DC 02/11/0684 HODGSON JA GROVE J HOWIE J Tuesday 25 November 2003 R v Matthew GLEKIS Judgment 1 HODGSON JA: On 19 November 2002, the appellant was indicted before his Honour Acting Judge Shillington QC at Sydney District Court on the following charges: Count one: for that he on 12 December 2001 at Maroubra in the State of New South Wales did assault Chie Sakaguchi and at the time of the assault did commit an act of indecency on the said Chie Sakaguchi (section 61L Crimes Act 1900, maximum penalty imprisonment for 5 years). Count two: for that he on the 12 December 2001 at Maroubra in the State of New South Wales did have sexual intercourse with Chie Sakaguchi without the consent of the said Chie Sakaguchi knowing that she was not consenting (section 61I Crimes Act 1900, maximum penalty imprisonment for 14 years). 2 The appellant pleaded not guilty, and was tried before his Honour and a jury of twelve. On 26 November 2002, the jury returned a verdict of guilty to the first count and not guilty to the second count. 3 On 21 February 2003, the appellant was sentenced on count one as follows: imprisonment for one year to commence 21 February 2003 and expire 20 February 2004, the execution of that sentence being suspended under section 12 of the Crimes (Sentencing Procedure) Act 1999 for the term of the sentence. 4 The appellant appeals to this Court from his conviction, on one ground, namely that in the light of the evidence, the guilty verdict was unreasonable and illogical. CROWN CASE 5 The complainant gave evidence (through an interpreter of the Japanese language) that she lived in Japan, and that she had come to Australia in August 2001 on a working holiday to study English and to work. In December 2001, she was living in Maroubra with Tomoya Adachi, who she described as her ex-boyfriend. She had joined the Maroubra Seals Sports and Community Club. 6 Her evidence was that on 12 December 2001, she went to the club. After going to the women's change room, she went to the gym area where she used the walking machine. The appellant started using the machine next to her, and spoke to her. He asked her name and other questions. He was wearing a blue t-shirt and light brown shorts. 7 The complainant's evidence then was that, after using another machine, she went to the women's change room. The appellant said to her, "are you going to the pool?" and the complainant replied that she was. She changed into her swimming costume and went to the pool. The appellant was also there, and spoke to her again. After she left the pool, the appellant said to her "are you already going?", and she said "see you" and went to the women's change room. 8 The complainant's evidence was that she then took off her swimming costume and went into a shower cubicle. While she was washing her hair, she heard a man call her name, and she later opened her eyes and saw the appellant, wearing a red t-shirt and light brown shorts. He said things she could not understand, but did say the word "coffee". She said in Japanese "get out of here", and wrapped the shower curtain around her body. He came close to her and touched her back and bottom with his hands. (This was the incident alleged in count one). She said in Japanese "get out" and "don't touch me". He asked where she was going, she replied "home" and he disappeared. She went to where her clothes were and began drying her hair. She then saw a red shadow in the mirror and tried to run away. The appellant grabbed her hand and forcefully took her towards the sauna area of the women's change area. He pushed her into the sauna, and down to where the chairs were. According to the complainant "after that he used his finger and put it into my vagina and touched me a few times". (This was the incident alleged in count two). 9 According to the complainant, the appellant then took his belt off, started to take off his trousers, and tried to insert his penis, unsuccessfully. She then heard a sound from outside like a door closing, and the appellant stopped and left suddenly. She then went back to where her clothes were placed. After she put her clothes on, she saw somebody and screamed, then realised it was a woman and tried to hide the fact she had screamed and said "hi" to the woman. She tried to tell the woman what had happened but she was shaking so much and couldn't express herself in English, and so she left the room. 10 The complainant then went home. Her boyfriend was there, but she could not tell him immediately what happened. She cried for about ten minutes, then told him that at the sports club she was nearly raped. Her boyfriend went to the club the following day, and she went with him the day after and spoke to the manager. 11 The complaint identified a blue t-shirt and a red t-shirt as those worn by the appellant, and identified herself and the appellant on a security video. 12 Mr Adachi, also a Japanese citizen, gave evidence that in December 2001 he lived in Maroubra with the complainant. On 12 December 2001, he and the complainant left the house at about 11am, and he went to the beach. He arrived home at about 1pm, and the complainant got home about 20 minutes later. The complainant was crying and he asked her what happened. She cried for about 30 minutes, and then told him that she had been nearly raped. He said: "She told me a man came into the shower room and that man was calling out her name. Chie was scared to answer back to his name-calling and afterwards the man was standing in front of the curtains. And he opened the curtains and said 'let's go for a coffee' but Chie refused. Even though she refused she was pulled by his hand or arm. Even though she resisted she was taken into the sauna room and she was nearly – and she says she was nearly raped. Because there was sound (sic) like a woman entering like a person entering the female change room the man left suddenly". 13 Next day, Mr Adachi went to the club and spoke to the manager. The day after, he went to the club with the complainant and the complainant then spoke to the manager through Mr Adachi. 14 Peter Reid, the General Manager of the club, gave evidence of his conversation with Mr Adachi on 13 December 2001, in which Mr Adachi said that his girlfriend had been hassled in the pool and in the change room. He then looked at the security video, and on it saw a Japanese girl on the running machine and in the pool talking to the appellant. He telephoned the appellant and told him of the allegation, and the appellant denied doing anything wrong. The following day, the complainant and Mr Adachi attended the club, and through Mr Adachi the complainant said that the appellant "had gone into the change room and while she was having a shower and asked her for – if she wanted to go for a cup of coffee or something. Then she pushed him away or something like that, and he'd gone, and then he'd come back a second time and had forced her into the – and touched her, and forced her into the sauna". Mr Reid then contacted the police. 15 Mr Reid said the appellant had been a member of the club since he was 18, was now in his early 30's, and had been an employee of the club about 10 years earlier. 16 An employee of the club Malcolm Allen confirmed that the security video showed the appellant talking to a Japanese girl. Security videos in fact showed that the appellant had entered the club at 11.39am wearing a red t-shirt, and had left the club at 1.15pm in a red t-shirt. The club register showed that the complainant had signed into the club at 11.30am, the appellant had signed in at 11.45am, and that the only young women who had signed in between 11.10am and 1.50pm were two young women who had signed in at 1.20pm. 17 A policeman Detective Hughes gave evidence that on 16 December 2001, the complainant attended the police station with Mr Adachi and made a statement with the aid of an interpreter. He further gave evidence that on 22 December 2001 he spoke to the appellant, cautioned him, and told him of the allegations against him. The appellant said "I can't believe this, this is bullshit". However, he declined to be interviewed. He did provide a red and blue t-shirt that he had been wearing on 12 December 2001. Detective Hughes also gave evidence that the appellant had no criminal record apart from a drink driving offence some years ago. 18 The appellant did not give evidence. However, he called very favourable character evidence from his work supervisor, who was a senior operations officer at Sydney Airport Corporation; and also from the manager of a gym where he had been employed for approximately three years. APPELLANT'S SUBMISSIONS 19 Mr Thangaraj, for the appellant, submitted that the guilty verdict was unreasonable and illogical, having regard to the improbability of the offence occurring in the circumstances, the lack of support for the complainant's account, crucial variations in the complaint's accounts of what happened, and inconsistency between the verdicts on the two counts. 20 As regards improbability, he submitted that the offence was alleged to have occurred in the middle of the day, in a club of which the appellant was a member and well known, in the women's change room, when there were other people around, when people could see the entrance to the change room and when a woman could have walked into the change room at any time. He submitted that the complainant's evidence was that she screamed, yet there was no evidence that anyone heard a scream. The complainant gave evidence that she saw a woman shortly after the incident, screamed and tried to speak to her. This woman could only have been one of two women, but she was not called to give evidence. The complainant claimed to have been roughly handled, but there was no physical injury. 21 Mr Thangaraj submitted that there was no support for the complainant's account. Although the appellant did not give evidence, it was put to the complainant in cross examination that the appellant did not enter the women's change room, but merely called out from the door asking if she wanted coffee. It was submitted for the Crown that the complainant's identification of the red t-shirt contradicted this, because the complainant could only have seen the red t-shirt if the appellant had entered the room; but this was an invalid submission, because the complainant could have seen the appellant in a red t-shirt at other times. 22 The original complaint made by Mr Adachi to the club manager was only of the complainant being hassled, so the jury should not have accepted that the complainant said to Mr Adachi on returning home that she had been "nearly raped", or indeed that the complainant was grossly upset when she returned home. Even if the jury had accepted that the complainant said she was "nearly raped", as it should not have, this would at most support the count on which the appellant was acquitted. 23 Mr Thangaraj pointed to what he submitted were crucial variations in the complainant's account of what happened. On returning on 12 December, at best she said to her boyfriend Mr Adachi that she had been "nearly raped". On 14 December, to the manager, she did not say that she had been touched in the shower, or that there had been any penetration, digital or otherwise. In cross examination, both the complainant and Mr Adachi accepted that all they had said relevantly was that when the complainant was in the shower, the appellant walked in, called her, opened the curtain, asked her for coffee, and she pushed him away; and that later he took her into the sauna and tried to do something. 24 In her statement to police on 16 December she did not say that the appellant undid his belt, lowered his trousers and attempted penile penetration. Nor was this said at the committal hearing. The first time this was alleged was at the trial itself. 25 Mr Thangaraj also submitted that there was inconsistency in the complainant's evidence in relation to screaming. In some places, she said that she was screaming loudly throughout the incident in the sauna, and at other times she said that she was trying to scream but could not make a loud sound. He also submitted that the complainant significantly altered her estimate of the time the appellant was in the women's change room from 10 to 15 minutes at the committal to 5 minutes at the trial. 26 Finally, Mr Thangaraj submitted that there was inconsistency between the verdicts on the two counts. In each case, the guilt of the appellant was supported entirely and only by the evidence of the complainant. The verdict of not guilty on the second count showed that the jury did not accept that the complainant's evidence was reliable. Accordingly, it was unreasonable and illogical for them to find a verdict on the first count. Mr Thangaraj referred to the most recent authority on inconsistent verdicts, namely, MFA v R (2002) 193 ALR 184. He also pointed out that the trial judge had given a direction in accordance with Black v The Queen (1993) 179 CLR 44 concerning the resolution of disagreement, confirming that there was a real possibility that the jury had reached an unreasonable verdict by way of compromise. DECISION 27 The factors relied on by the appellant as going to the improbability of the offence occurring are matters of some weight, but were all fairly before the jury. I would note that it does appear that there were no more than 25 people altogether coming into the club between 11.10am and 1.50pm on that day, and it also appears that no other woman in fact entered the women's change area after the complainant until after 1.20pm, at least five minutes after the appellant had left the premises. In my opinion, the improbability factors relied on by the appellant are certainly insufficient in themselves to make the guilty verdict unreasonable or illogical, but I will have regard to them in combination with the other factors which I will discuss. The absence of evidence from the woman seen by the complainant after the incident means that the complainant's evidence was unsupported in this respect; but to go further than this would be to speculate. 28 In my opinion, the circumstance that Mr Adachi spoke to the manager the following day in terms of the complainant being "hassled" is not a powerful factor against acceptance of the evidence of the complainant and Mr Adachi that she was greatly distressed when she arrived home and complained that she had been "nearly raped". The jury may reasonably have considered that Mr Adachi would have been circumspect in his account of the complaint at that stage. In my opinion, the jury were well entitled to accept the evidence of the complainant and Mr Adachi that she was greatly distressed when she came home and did complain that she had been nearly raped. 29 In my opinion also, the evidence about the red t-shirt did confirm that the appellant entered the women's change area. The plan that was exhibit E in the case makes it improbable in the extreme that the complainant could have seen the appellant from the female change area if he had merely opened the door and called out from the door. The evidence is clear that the appellant was wearing a blue t-shirt when he was exercising in the gym area. It is unlikely in the extreme that he was seen by the complainant entering the club in the red t-shirt, and he left the club in the red t-shirt more than five minutes before the complainant left the female change area. To that extent, the identification of the red t-shirt did confirm that the appellant came right into the women's change area. 30 As regards the variations in the account given by the complainant, in my opinion it is reasonable to have regard to language difficulties and an understandable initial reticence about giving full details. There is no suggestion that the accounts of touching in the shower and digital penetration given in evidence were different from those given in the police statement made four days after the incident. In my opinion, there is no outright inconsistency in the accounts, so as to substantially damage the credibility of the complainant. I do not think the variations in the time estimates, or the variation between an assertion of screaming loudly and an assertion of trying to scream but being unable to make a loud scream, are of great significance. 31 As regards the different verdicts, in my opinion in this case it cannot be said there is no rational explanation of them. The jury may have taken the view that, by the time of the alleged digital penetration, the complainant was greatly upset and therefore less able to give a completely reliable account of what happened. Her report to Mr Adachi and she was "nearly raped" could be seen as suggesting that what happened fell short of penetration of any kind. This is also a case where a jury may properly have taken a "merciful" view of the facts: see MacKenzie v R (1996) 190 CLR 348 at 367; MFA at para [85]. Finally, by reason of the events introduced for the first time at the trial concerning evidence in the sauna, the jury may have taken the view that her evidence of events in the sauna was less reliable than that in relation to events in the shower, as to which there was no suggestion of inconsistency from the time of her making a statement to the police right up to the time of giving evidence at the trial. 32 In my opinion, the giving of the Black direction does not suggest an unreasonable compromise verdict. I note that it was given after the jury had deliberated for some time, suggesting care and conscientiousness, and without any communication from the jury that they were unable to agree. 33 Having regard to all these considerations, in my opinion the verdict of guilty is not shown to have been unreasonable or illogical. In my opinion, the appeal should be dismissed. 34 GROVE J: I agree with Hodgson JA. 35 HOWIE J: I agree with Hodgson JA. ********** Last Modified: 11/26/2003 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.