New South Wales Court of Criminal Appeal CITATION: Shepherd v Regina [2007] NSWCCA 203 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 21 June 2007 JUDGMENT DATE: 13 July 2007 JUDGMENT OF: Beazley JA at 1; Grove J at 4; Simpson J at 5 DECISION: (1) Appeal allowed. (2) Conviction quashed. (3) Order a new trial. CATCHWORDS: CRIMINAL LAW – aggravated sexual intercourse without consent – aggravated indecent assault – offence committed in company – plea of not guilty – directions given by trial judge – successful appeal by alleged co-offender – ground of appeal available to appellant – "why would the complainant lie?" – intoxication possibly relevant to consent – appellant's denial of sexual intercourse – consent not an issue LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 CASES CITED: South v Regina [2007] NSWCCA 117 The Queen v Wilson, Tchorz and Young (1986) 42 SASR 203 PARTIES: Robert Raymond Shepherd (Applicant) Regina (Respondent) FILE NUMBER(S): CCA 2006/2384 COUNSEL: G Bashir (Applicant) V Lydiard (Respondent) SOLICITORS: Ross Hill and Associates (Applicant) S Kavanagh - Solicitor for Public Prosecutions (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 03/21/3324 LOWER COURT JUDICIAL OFFICER: Williams DCJ LOWER COURT DATE OF DECISION: 19 May 2004 IN THE COURT OF CRIMINAL APPEAL 2006/2384 BEAZLEY JA GROVE J SIMPSON J 13 JULY 2007 Robert Raymond Shepherd v Regina Judgment 1 BEAZLEY JA: The appellant appealed against his conviction of one count of aggravated sexual intercourse without consent and one count of aggravated indecent assault. The circumstance of aggravation was that the offences were committed in company. One of the co-offenders was Scott South who had also been convicted on a count of aggravated sexual intercourse without consent. 2 Prior to the hearing of this appeal, judgment had been delivered by this Court in the appeal brought by Scott South against his conviction: South v Regina [2007] NSWCCA 117. The Court in that case allowed the appeal. The ground of appeal that was successful in South's case is also available in this case. For that reason, the Court made orders at the conclusion of this appeal allowing the appeal, quashing the conviction and ordering that there be a new trial. The Court indicated that its reasons for decision would be delivered at a later date. 3 I have now had the opportunity of reading in draft the reasons of Simpson J for joining in the orders the Court made. I agree with her Honour's reasons and have nothing further to add. 4 GROVE J: I have had the advantage of reading the reasons of Simpson J in draft form. As her Honour has observed, the upholding of a ground of appeal in the case of the alleged co-offender in South v Regina [2007] NSWCCA 117, which ground is also available to the appellant, produced an inevitable consequence that this appeal must also be allowed and a new trial ordered. The concession by the Crown that this should happen was appropriate. For those reasons I joined in the orders made at the conclusion of the hearing of the appeal. 5 SIMPSON J: Between 8 November 2004 and 1 December 2004 the appellant was tried in the District Court on an indictment that charged him with one count of aggravated sexual intercourse without consent and one count of aggravated indecent assault. In each case, the circumstance of aggravation alleged was that the offence was committed in company. One of the persons with whom the appellant was alleged to have been in company was Scott South, who was tried on the same indictment on a single count of aggravated sexual intercourse without consent. Both men were convicted. 6 Three other men were alleged to have been present at the time of the offences. They were Leigh Perrin, Daniel Willemsen and David Annabel. In separate proceedings Perrin pleaded guilty to a charge of sexual intercourse without consent; he asked, pursuant to Pt 3 Div 3 of the Crimes (Sentencing Procedure) Act 1999, that an offence of aggravated indecent assault be taken into account on sentencing. Willemsen and Annabel were also charged with aggravated indecent assault; it was proposed to prosecute these offences in a separate trial but the complainant declined to give evidence again, and they were ultimately discharged. 7 South appealed against his convictions. On 30 April 2007 this Court (by a bench of which I was a member) upheld one of his grounds of appeal, allowed the appeal and ordered a new trial: South v Regina [2007] NSWCCA 117. The appellant now appeals against his conviction and has sought leave to appeal against the sentences subsequently imposed (a total of imprisonment with a non-parole period of 6½ years commencing on 18 November 2004, with a balance of term of three years, expiring on 17 May 2014). At the conclusion of the hearing of the appeal, the Court made the following orders: (1) Appeal allowed. (2) Conviction quashed. (3) Order a new trial. 8 These are my reasons for joining in those orders. 9 The grounds of appeal pleaded on behalf of the appellant largely, but not entirely, mirror those pleaded and argued in support of South's appeal. Since the Crown has conceded that the ground of appeal that was there successful must also here succeed, and since that concession is clearly properly made, the appellant's appeal must likewise be allowed. However, counsel for the appellant has raised additional arguments in relation to grounds of appeal that did not succeed in South's case, and has raised an additional ground of appeal. In written submissions she contended that the additional ground casts new light upon one of the formerly unsuccessful grounds, but this position was modified, if not abandoned, in the oral presentation. The facts 10 The facts alleged by the Crown are set out comprehensively in the judgment in South. I do not propose to restate them in the same degree of detail. I will attempt to encapsulate them, without doing injustice to the grounds of appeal. 11 The events giving rise to the charges took place in the late evening of 4 May 2003, and the early hours of the following morning. The complainant, who was then 18 years of age, was invited by Leigh Perrin (who was the former boyfriend of the complainant's female friend, Romaine Gattellari) to join him and Ms Gattellari at a gathering. The complainant obtained permission from her mother and Ms Gattellari picked her up by car and took her to a house in Ruse, occupied by David Annabel. Shortly after they arrived, Perrin, Willemson, Annabel, South and the appellant arrived at the house. Alcohol was supplied to the complainant as was a white powder, which was some form of amphetamine. The complainant felt unwell and telephoned another (male) friend who agreed to pick her up. However, she did not know the address and had exhausted the credit on her mobile telephone and he was unable to do so. 12 The complainant therefore remained in the house. She felt dizzy and strange. She was carried to a bedroom by Ms Gattellari, Perrin and South. Ms Gattellari left the room. All five men were then present in the bedroom. 13 The appellant removed the complainant's pants and underwear. She protested. He had penile-vaginal intercourse with her. This was the subject of the first count, of aggravated sexual intercourse without consent. South followed suit, as did Perrin. The complainant was turned on her stomach. The appellant masturbated, and ejaculated. The ejaculate covered the complainant's hair and face. This was the subject of the second count, of aggravated indecent assault. Thereafter, penises were placed in the complainant's mouth, but she was unable to identify which of the men did this. Perrin attempted anal intercourse. 14 The complainant remained at the house until 11.30am with Ms Gattellari, who drove her, initially, to her own (Ms Gattellari's) home, which was close to the complainant's home. The complainant was feeling unwell, and at one point collapsed. At Ms Gattellari's home the complainant had a shower. She slept on Ms Gattellari's bed for a time. Ms Gattellari eventually took her home at 4.30pm. She had bruises on her inner thigh. 15 On seeing the condition of her daughter, the complainant's mother screamed, and took her to a medical centre. From there she was taken to the Fairfield Hospital. She was examined by a doctor, to whom she denied having been sexually assaulted. (In the trial she said that she did this because she was "all out of it", could not speak properly, and her parents were present and she did not want them to know what had taken place.) 16 On 14 May another friend of the complainant's, Stephanie Munzone, visited the complainant. The complainant gave her an account (which appears to have been abbreviated) of the event in question. Ms Munzone persuaded the complainant to tell her parents what had happened. This she did, but not in complete detail. 17 On 16 May the complainant gave a statement to police. On 29 May the appellant voluntarily attended the Campbelltown Police Station where he took part in an electronically recorded interview. The interview was lengthy. It began at 4.29pm, and ran until 6.15pm, 1¾ hours. It extended to almost 500 questions and answers. 18 In essence, he agreed that he had been present at the house; that Perrin and South had, to his knowledge, had sexual relations with the complainant; and that he himself had masturbated, in her presence, to the point of ejaculation, and that ejaculate had struck the complainant's face and hair. He denied having had penile-vaginal intercourse with the complainant. He claimed that she was a consenting party to the entirely of the events. 19 The appellant did not give evidence in the trial. He relied upon the answers given to police in the recorded interview. The grounds of appeal 20 Initially, three grounds of appeal against conviction were pleaded. They were framed as follows: "1. The trial judge erred by giving inadequate and incorrect directions to the jury concerning the possibility of the appellant's mistaken belief that the complainant was consenting. 2. The trial judge erred by failing to direct the jury in relation to the impact of the victim's intoxication on proof of lack of consent, honest and mistaken belief of consent and recklessness. 3. The verdict is unreasonable." (Ground 3 was, at the hearing, abandoned.) 21 Following South's successful appeal, the appellant sought (and was granted) leave to plead an additional ground, framed as follows: "4. The trial judge erred in summing up the jury on the basis that the Crown case invited the jury to consider 'why would the complainant lie?'." 22 This was the ground that succeeded in South's case, for the reasons there set out, and which the Crown properly concedes should have the same result in the present case. 23 Ground 1 is in precisely the same terms as Ground 1 as argued in South's case. It was rejected. In my view, it should again be rejected. That this was inevitable was accepted by counsel who appeared on the application. 24 However, on behalf of the appellant it was argued that the failure to give direction concerning the complainant's intoxication, which is the subject of complaint in Ground 2, adds weight to the deficiencies in the summing up said to have been identified in the Ground 1. 25 It was accepted that, the point not having been taken at trial, the appellant requires leave, pursuant to r 4 of the Criminal Appeal Rules, if this ground is to be argued. 26 Counsel relied upon the decision of the Supreme Court (in Banco) of South Australia in The Queen v Wilson, Tchorz and Young (1986) 42 SASR 203. There the prosecution allegation was that the three appellants had, after consuming alcohol with her, raped the complainant. Each admitted having had sexual intercourse, but claimed that he had done so with her consent. Each claimed that she was intoxicated. 27 It was put that this decision is authority for the proposition: "Where there is evidence that the alleged victim was intoxicated, a direction should be given as the bearing of that evidence on the possibility of mistake as to consent." 28 On my reading of the three separate judgments in that case, the decision does not support a proposition so broadly put. King CJ, having observed that no legal issue arose involving intoxication and that there was no evidence capable of raising issues associated with intoxication, noted that the evidence of the complainant's intoxication was relevant to the defence contention that she, in a state of intoxication, engaged in voluntary sexual conduct in which she might not otherwise have engaged and which she subsequently regretted; and for the possibility of misunderstanding resulting from a combination of confusing signals given by an intoxicated woman and dulled perceptions by intoxicated men. He said that the evidence of intoxication was simply part of the factual context in which the legal issues fell to be decided. 29 His Honour then said: "But I think that the prominent place which the evidence of the alleged intoxication of the alleged victim occupied in the defence case called for some reference in the summing up. I think, too, that the failure to mention the bearing of the evidence of intoxication on the possibility of mistake as to consent must be regarded as a defect in the summing up." (italics added) 30 Leggoe J (who dissented in the result) held that the issue of intoxication was a factual issue for the jury (as to which adequate directions had been given); Johnston J took a similar approach to the Chief Justice, saying: "In my opinion, this was a case where, since alcohol loomed so largely in the defence cases and in the history of events leading up to the crucial acts, it would have been appropriate for the trial Judge to explain the significance of intoxication for the defences raised." (italics added) He added, however, that if that were the only criticism to be made, it would be difficult to conclude that the failure to make the reference constituted error in law by way of non-direction. 31 It will be seen that as King CJ and Johnston J reached their conclusions by reference to the issues as they had arisen in that case – King CJ referred to the "prominent place" which the issue of intoxication assumed; Johnston J to the fact that the issue "loomed so largely in the defence cases". 32 This calls for an examination of the issues raised in the appellant's defence. As I noted above, setting out the case he made by reference to what he told police when interviewed, he denied that penile-vaginal intercourse had taken place between himself and the complainant. The judge made it clear to the jury that the sexual intercourse alleged against him was penile-vaginal intercourse. He reminded the jury that there was some evidence of some of the men placing their penises in the complainant's mouth, but pointed out that, firstly, this was not the allegation made against the appellant, and that the evidence was quite insufficient to establish that he had been one of those men. The Crown case was, as I have said and was made clear, of penile-vaginal intercourse. This the appellant denied had taken place. And this jury found against him. Consent was irrelevant to his defence to this charge. 33 There was, it must be said, a level of confusion in the address of the appellant's counsel. At various points, he laid great emphasis on the drugs and alcohol that had been consumed by the complainant. At one, early, point in his address, he put to the jury: "When in actual fact what happened was [the complainant] took a large dose of stimulant and she became hyperactive and she became disinhibited and she conducted herself in a way which she would not normally conduct herself." 34 However, at other points, he reiterated what had been said by the appellant in the course of his record of interview, denying sexual intercourse. 35 Arguably, consent may have been an issue in relation to the charge of aggravated indecent assault. It was the appellant's position, in his record of interview, that the complainant had been a willing participant in all of the events. 36 However, since there is to be a new trial, it is not, in my opinion, necessary to consider in detail either of the grounds concerning consent and intoxication. Those are matters which may properly be argued before the trial judge. 37 It is, in my opinion, unnecessary to consider the application for leave to appeal against sentence. That may also be the subject of submissions to the trial judge, should the appellant be convicted again. ********** 20/07/2007 - Incorrect counsel listed - Paragraph(s) Coversheet 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.