Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Wingrove-Pryce v R [2014] NSWCCA 290 Hearing dates: 29/09/2014 Decision date: 03 December 2014 Before: Hoeben CJ at CL at [1] Adams J at [57] R A Hulme J at [58] Decision: Leave to appeal granted. The appeal is dismissed. Catchwords: CRIMINAL LAW - conviction appeal - attempting to indecently assault adult female - finding of guilt after jury trial but acquitted of two other counts - whether verdict of guilty unreasonable or unable to be supported by the evidence - whether jury verdicts were inconsistent - issue of consent - adequate evidence to support jury verdict - corroboration for victim's complaint - appeal dismissed. Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) - s10(1)(a) Criminal Appeal Act 1912 - s6 Cases Cited: MacKenzie v R [1996] HCA 35; 190 CLR 348 MFA v R [2002] HCA 53; 213 CLR 606 Regina v Markuleski [2001] NSWCCA 290; 52 NSWLR 82 Category: Principal judgment Parties: Matthew Kieren Wingrove-Pryce - Applicant Regina - Respondent Crown Representation: Counsel: Mr M Hay - Applicant Mr P Ingram SC - Respondent Solicitors: D Bainbridge - Applicant J Pheils - Solicitor for Public Prosecutions - Respondent Crown File Number(s): 2012/42201 Decision under appeal Date of Decision: 2013-05-21 00:00:00 Before: King SC DCJ File Number(s): 2012/42201 Judgment 1HOEBEN CJ at CL: Offences and sentence: The applicant was tried by a jury before Judge King SC in the District Court at Sydney between 13 May and 21 May 2013. 2The indictment pleaded three counts: Count 1 - On or about 5 February 2012 at Watsons Bay the applicant attempted to indecently assault AP. Count 2 - On or about 5 February 2012 at Watsons Bay the applicant had sexual intercourse with AP without her consent and knowing that she was not consenting. Count 3 - On or about 5 February 2012 at Watsons Bay the applicant attempted to indecently assault AP. 3On 21 May 2013 the jury acquitted the applicant of Counts 1 and 2, but found him guilty of Count 3. On 23 August 2013 his Honour dismissed the charge without proceeding to a conviction pursuant to s10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW). 4A Notice of Intention to Appeal Against Conviction was filed on 23 October 2013 on behalf of the applicant. The expiration date of that notice was subsequently extended to 30 June 2014. 5The applicant relies upon one ground of appeal against conviction: Ground 1 - The verdict of guilty on Count 3 is unreasonable or cannot be supported in terms of s6 of the Criminal Appeal Act 1912 in light of the acquittal on Counts 1 and 2. Crown case and evidence at trial 6The Crown case was that on 5 February 2012 the applicant kissed the complainant on her lips without her consent. The Crown alleged that on the same date after the kiss and after the complainant had fallen asleep, the applicant engaged in penile/vaginal intercourse with her without her consent. The Crown alleged that on 5 February 2012 in the afternoon the applicant put his hand inside the bikini pants of the complainant without her consent. 7The element in dispute in respect of Counts 1 and 2 was consent. In respect of the third count, the conduct was denied. The only direct evidence in relation to each offence came from the complainant. There was no forensic or medical evidence in relation to the sexual intercourse. 8The complainant and the applicant were trainees serving at the Royal Australian Navy (RAN) training establishment, HMAS Watson. On the evening of 4 February the complainant and two female friends attended a local hotel. Before leaving HMAS Watson the complainant sent the applicant her mobile telephone number and they exchanged thirteen messages in which the complainant suggested that the applicant should come out with her. He declined and stayed in his room in the accommodation block. While at the hotel, the complainant had one alcoholic drink. 9At 11.55pm the applicant sent the complainant a message saying "You coming to hang or what?". At 12.11am the complainant replied "I'll be there in five". The applicant went to a room occupied by Melissa Gay and Chevy Watson where he had been invited by the complainant on the basis that there would be a movie playing on the television. After he entered the room, the applicant took up a position sitting on the floor. There were four other people in the room at this time. Ms Gay was lying on the top of a double bunk bed. Messrs Watson and McPhee were sitting on the bottom bunk. Mr Palmer, who was moderately affected by alcohol, was lying on the floor and was soon asleep. 10The complainant arrived and took up a position on the floor next to the applicant. She was wearing shorts and a t-shirt. The complainant sat facing the television with her back leaning against a chair. Her legs were outstretched. The applicant moved to a position where he was lying on the floor in front of the complainant, his head in her lap. 11Later the lights were turned off and the complainant and applicant lay on the floor side by side. Initially they shared a single pillow but subsequently Ms Gay gave the complainant a second pillow. Later she placed a sheet over the complainant and the applicant, who were facing each other as they lay on the floor. Shortly thereafter the television was turned off. 12The applicant attempted to kiss the complainant who moved away from him and told him she did not wish to do so. Initially the complainant's evidence was that the applicant had not actually kissed her but tried to. When she was recalled, she said that "He tried to kiss me and he also kissed me at one point". This was the evidence as to Count 1. 13The applicant's case in respect of Count 1 was that the kissing occurred but that it was consensual. 14The complainant fell asleep next to the applicant on the floor. Later in the early hours of the morning, the complainant said that she awoke to find the applicant on top of her with his penis inside her vagina. She said her shorts and underwear had been removed and that the applicant was pushing his penis into her vagina. 15The complainant said that she attempted to push the applicant away but he was too heavy. She said that when she attempted to push him in the chest, he grabbed her wrists and held them forcefully on each side of her head. She said that the harder she struggled, the more force the applicant used to hold her wrists. She said she struggled to breathe and "was really scared and wanted him off me". 16The complainant said that after about five minutes "all of a sudden" the applicant removed his penis from her vagina and ejaculated on her stomach. The applicant then lay down next to her and she did not move or cry out. She said that thereafter she remained awake. 17The applicant did not deny that he had engaged in sexual intercourse with the complainant but maintained that at all times it was consensual. No-one else present in the room was awake at the time when this sexual intercourse took place. None of the Crown witnesses gave evidence that they had any knowledge or awareness at the time that the sexual intercourse between the applicant and the complainant was occurring. 18The complainant's evidence was that she did not go to sleep, was awake when the other people in the room woke and that she did not put on her shorts until the others had woken. The complainant did not scream out or complain to anyone in the room. This was the evidence in relation to Count 2. 19Later that morning, the complainant said that she got up, found her shorts and underpants and put them back on. When she had a shower the complainant noted that there was semen on her groin and stomach areas. Her vagina was sore and there were bruises on her wrists and knees. 20There was evidence from Mr Watson and Ms Gay that at 7am the complainant and the applicant were still asleep on the floor facing each other and that the complainant was fully dressed. 21Later still that morning the complainant went with other trainees, including the applicant, to Pancakes on the Rocks where they had breakfast. There the applicant pushed his way next to the complainant when some photographs were being taken. After breakfast, the group walked around some nearby markets and the applicant attempted on a number of occasions to hold the complainant's hand but each time she pushed his hand away. 22Still later on the same day the complainant, the applicant, other members of the group and two other trainees went to Camp Cove Beach. The applicant drove his own vehicle to the beach with the complainant in the front seat with Ms Gay and Mr McPhee in the rear of the vehicle. The applicant was unable to find a parking spot so those two trainees were dropped off at the beach and the complainant remained in the car while the applicant drove back to HMAS Watson. The complainant did not discuss either Count 1 or Count 2 with the applicant because she was still in shock in relation to those offences. The applicant and the complainant then returned to the beach where they joined the other trainees. 23The group went swimming. While the complainant was in the water and facing the beach on at least three occasions she said that the applicant came up behind her, put his arms around her and attempted to insert his hand inside the bikini bottom of the swimming costume she was wearing. Each time he did so, the complainant tried to push the applicant away. 24That version of events was somewhat different to that which she had given when making her statement to the police. In her statement she said that the applicant had put his hand "under my swimmers". The complainant said that she had had enough of this behaviour and walked up to the beach. This was the evidence in relation to Count 3. 25When she left the water the complainant made a complaint about Count 3 to trainees Bugden and Palmer. She told them that she wanted the applicant to leave her alone. Mr Palmer gave the complainant a hug to prevent the applicant from approaching her again. Later some of the trainees (but not the applicant) were having dinner. The applicant sent a number of SMS messages to the complainant in which he said he wanted to talk to her. The complainant informed Messrs Bugden and Palmer of this and they sent SMS messages to the applicant with a view to having him desist. 26When she returned to the Base, the complainant went to the room of another trainee, Ms Adock. The applicant was there and the complainant told him that she did not want to have anything to do with him and that he was to leave her alone. The complainant then went and had a shower. Later the complainant went to the bar with Ms Adcock and there joined Messrs Bugden and Palmer. The applicant was also present playing pool at an adjacent table. 27Shortly thereafter Mr Bugden accompanied the complainant to a nearby spare room where they talked. When he asked her about the bruises on her legs, the complainant broke down and told him about the offence in Count 2. The complainant told Mr Bugden that she did not want anyone else informed. The complainant returned to her own quarters and retired for the night. She noted, but ignored, an SMS on her mobile telephone that had been sent by the applicant. 28On 6 February 2012 the complainant passed by but ignored the applicant. She then ran away from where she had seen him. Later that day, the complainant spoke with the officer of the day but declined the opportunity to speak about the "incident". 29On 7 February 2012 the complainant took steps to report that there had been an assault to Naval personnel and to a Dr Green. She did not describe the incident to Dr Green in any detail, but was provided with some medication. That afternoon the complainant made a report of the offences to Paddington Police. She was taken to Royal Prince Alfred Hospital where she was seen and examined by Dr Pfeiffer. 30On 8 February 2012 the complainant made a statement to police and photographs were taken of her. On 16 February 2012 the complainant made a second statement to police. 31Evidence was given by other trainees who were at the beach when the events making up Count 3 occurred. The evidence of Ms Gay was that while they were swimming, she noticed a lot of the time that the applicant was trying to wrap his arm around the complainant's waist and that the complainant would continuously swim away. When they returned to the beach, she observed that the applicant sat next to the complainant. 32Ms Gay said that she saw the applicant try to wrap his arms around the complainant's waist "four to five times" and that he did so while the complainant was facing away from him, with him swimming up behind her. She said that she was less than one metre away and could "clearly" see the applicant grabbing the complainant around the waist. She said that on other occasions she was a bit further away and was watching the complainant, not the applicant. 33Mr Palmer gave evidence that he saw the complainant and the applicant in the water "mucking around" and that they were together the whole time. He said that the applicant would have his arms around the complainant and would throw her, pick her up and throw her. He said that later the complainant told him that the applicant was "feeling her up" but that he did not see that. She told him that the applicant was "feeling her up" when throwing her and "stuff like that". 34Mr Bugden gave evidence that he saw the applicant swimming with the complainant and that they were "mucking about in the water". He said that the applicant was "putting his arm around her waist" and that he saw the applicant touch the complainant on the stomach "one or two times". When the complainant returned to the beach, she told him that the applicant was "hitting on her". 35The applicant did not give evidence in the proceedings. Submissions 36The applicant submitted that the jury's verdict in relation to Count 1 could only have been reached on the basis either that they did not accept the evidence of the complainant on the issue of consent or that they did not consider the conduct involved being indecent. The applicant submitted that it must have been the former. In relation to the acquittal on Count 2, the applicant submitted that the most likely explanation for this verdict was that the jury rejected the evidence of the complainant that she did not consent to sexual intercourse with him. The applicant submitted that in relation to Count 2, the jury's verdict amounted to a rejection of the complainant's evidence that she was asleep and that she did not consent. This was because on her evidence there was no possibility that she was simply mistaken about that fact. 37The applicant submitted that there was no significant difference between the Crown evidence in relation to Counts 1 and 2 and Count 3. He submitted that each relied solely upon the complainant's uncorroborated evidence and involved assessments by the jury of her reliability and credit, having regard to the significant inconsistencies, disparities and contradictions contained in the various accounts she provided of the incidents of 5 February 2012. 38The applicant submitted that there was no rational basis upon which the jury could have rejected the complainant's evidence in relation to Counts 1 and 2 but be satisfied beyond reasonable doubt in relation to Count 3. He submitted that having had a reasonable doubt with respect to the complainant's evidence on Counts 1 and 2, there was no rational basis on which the jury could have accepted beyond reasonable doubt her evidence in relation to Count 3. 39The applicant relied upon the following observation by Spigelman CJ in Regina v Markuleski [2001] NSWCCA 290; 52 NSWLR 82 at [34] where his Honour said: "34 In the common case of multiple sexual assaults against a single complainant, often over a period of time, juries frequently acquit on some charges and convict on others. The issue raised by Jones is to determine when an acquittal so affects the credibility of the complainant that, in combination with other factors, a conviction was not open to the jury. A court of criminal appeal must perform this task whilst acknowledging the role of the jury as emphasised in M v The Queen, MacKenzie and Jones quoted above." 40The applicant submitted that based on the way in which the Crown case was argued, the credit of the complainant must have played a significant part in the jury's reasoning in relation to the two acquittals and should have resulted in a reasonable doubt in relation to Count 3. He submitted that in the majority of sexual assault cases involving inconsistent verdicts, there was some rational explanation for the different verdicts. He submitted that no such reason could be shown in this case and that the verdict of "guilty" in relation to Count 3 was unreasonable and should be set aside. 41The applicant submitted that the inconsistencies of the complainant in this case in the various statements made to police and the evidence given under oath, together with the surrounding circumstances of the alleged offending (including the lack of any corroborating evidence despite the physical proximity of other witnesses at the time of the alleged offending), lead to the inevitable conclusion that the guilty verdict on Count 3 was unreasonable and could not be supported having regard to the acquittals on Counts 1 and 2. Consideration 42The principles to be applied in cases such as this have been stated on a number of occasions. In MacKenzie v R [1996] HCA 35; 190 CLR 348 the plurality (Gaudron, Gummow and Kirby JJ) said at 366: "3. Where, as is ordinarily the case, the inconsistency arises in the jury verdicts upon different counts of the originating process in a criminal trial, the test is one of logic and reasonableness. A judgment of Devlin J in R v Stone is often cited as expressing the test: "He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand." 4. Nevertheless, the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense. Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury. In a criminal appeal, the view may be taken that the jury simply followed the judge's instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt. Alternatively, the appellate court may conclude that the jury took a "merciful" view of the facts upon one count: a function which has always been open to, and often exercised by, juries. The early history of New South Wales was affected by English juries which, in the face of clear evidence, declined to find the value of goods stolen sufficient to attract the punishment of death, thereby affording to the offender the alternative punishment of transportation. Australian decisions have acknowledged that the role of the jury continues to be ameliorative in this respect. In R v Kirkman, in the Supreme Court of South Australia, King CJ (with the concurrence of Olsson and O'Loughlin JJ) observed: "[J]uries cannot always be expected to act in accordance with strictly logical considerations and in accordance with the strict principles of the law which are explained to them, and courts, I think, must be very cautious about setting aside verdicts which are adequately supported by the evidence simply because a judge might find it difficult to reconcile them with the verdicts which had been reached by the jury with respect to other charges. Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law. Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number. This may not be logically justifiable in the eyes of a judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries. Appellate courts therefore should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty." We agree with these practical and sensible remarks." 43In Markuleski Spigelman CJ (with whom Wood CJ at CL; Grove and Simpson JJ and Carruthers AJA agreed) said in the paragraphs before that relied upon by the applicant: "31 Nothing in Jones casts any doubt on the appropriateness of a jury accepting a witness' evidence in one respect, whilst retaining a reasonable doubt about the commission of events about which that same witness is the only substantive witness. 32 Indeed, in a case handed down by the High Court exactly one week after Jones (KBT v The Queen (1997) 191 CLR 417) Brennan CJ, Toohey, Gaudron and Gummow JJ at 424 emphasised the importance of the instruction traditionally given in this respect: "As the trial judge correctly instructed the jury in his summing up, it was open to the jury to accept some parts of M's evidence and to reject others." 33 The appropriateness of the direction traditionally given has also recently been confirmed by McHugh J in KRM v The Queen [2001] HCA 11; 75 ALJR 550 at 558 [36]; 178 ALR 385 at 395 [36] where his Honour said: "[36] It has become the standard practice in cases where there are multiple counts, however, for the judge to direct the jury that they must consider each count separately and to consider it only by reference to the evidence that applies to it (a "separate consideration warning"). The universal giving of a separate consideration warning and the omission of a universal propensity warning indicates that the giving of a separate consideration warning is ordinarily sufficient to avoid miscarriages of justice in cases such as the present. This indication is confirmed by the many cases where juries acquit accused persons of some charges and convict them of others where the presentment contains multiple counts involving the same or similar offences. Indeed, so freely do juries acquit of some charges and convict of others on presentments with multiple counts that appellate courts often hear arguments that there is such an inconsistency in the verdicts that the convictions are unsafe and must be set aside [60] cf Jones v The Queen (1997) 191 CLR 439."" 44In MFA v R [2002] HCA 53; 213 CLR 606 at [34] Gleeson CJ Hayne and Callinan JJ said: "34 Since the ultimate question concerns the reasonableness of the jury's decision, the significance of verdicts of not guilty on some counts in an indictment must necessarily be considered in the light of the facts and circumstances of the particular case. Furthermore, it must be considered in the context of the system within which juries function, and of their role in that system. A number of features of that context were emphasised in MacKenzie. They include the following. First, as in the present case, where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count. This will often be accompanied by a specific instruction that the evidence of a witness may be accepted in whole or in part. Secondly, emphasis will invariably be placed upon the onus of proof borne by the prosecution. In jurisdictions where unanimity is required, such as New South Wales, every juror must be satisfied beyond reasonable doubt of every element in the offence. In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. This may not be unreasonable. It does not necessarily involve a rejection of the complainant's evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant's evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others. Thirdly, there is the consideration stated by King CJ in R v Kirkman, and referred to in later cases: it may appear to a jury, that, although a number of offences have been alleged, justice is met by convicting an accused of some only. And there may be an interaction between this consideration and the two matters earlier discussed." 45As the authorities cited make clear, the fact that an acquittal has been entered does not necessarily mean that the jury disbelieved the complainant. It may simply mean that the jury was not satisfied beyond a reasonable doubt as to some element of the offence or, as was pointed out in MFA, the jury may be looking for some extrinsic element for corroboration. 46The decision of the jury in this case, however, was made easier because unlike Counts 1 and 2, which depended entirely upon the evidence of the complainant, there was extrinsic evidence from Crown witnesses which supported her evidence which formed the basis for Count 3. 47There was evidence from Messrs Bugden, Palmer and Ms Gay that they saw the applicant on a number of occasions approach the complainant in circumstances where the events described by the complainant could have occurred. Ms Gay was able to say that she saw the applicant place his hands around the complainant's waist on a number of occasions, as did Mr Bugden, who also saw the applicant touch the complainant on the stomach "one or two times". Moreover, Messrs Palmer and Bugden gave evidence of complaint by the complainant shortly after she left the water. This kind of corroboration was lacking in relation to Counts 1 and 2. 48That of itself is sufficient to distinguish Count 3 from Counts 1 and 2 and to provide a reasonable explanation for the jury's verdict. 49There are, however, other considerations which lead to the same result. As the applicant accepted in relation to Count 1, the jury may well not have been satisfied that there was any element of indecency associated with an attempt on his part to kiss the complainant. It is also not without significance that on the complainant's evidence, after she made it clear that she did not want the applicant to kiss her, he did not renew his attempts. Such a circumstance gave ample room for the jury to have a reasonable doubt that the applicant had the requisite mens rea for an attempt to indecently assault the complainant so as to make out the elements for Count 1. 50In relation to Count 2, the jury could well have been left with a reasonable doubt as to whether the applicant knew, or was reckless as to the absence of consent, by the complainant - given that it was night in a darkened room. There is no evidence of the complainant's reactions (if any) to the applicant's actions as he sought to initiate sexual intercourse. In the course of doing so, the applicant removed the complainant's shorts and underwear (again without any evidence of any response, negative or otherwise, from the complainant). 51It can be accepted that on the Crown case there was available a sound argument that the applicant must have at least been reckless as to whether the complainant was asleep or otherwise not consenting. That conclusion, however, required the jury to draw the necessary inculpatory inferences and in the circumstances of a criminal trial those inferences were required to be the only rational inferences available on all the relevant evidence. Without more evidence as to the behaviour of the applicant and the complainant at the time of the sexual intercourse, the jury could well have been left with a reasonable doubt as to the applicant's knowledge or recklessness concerning the absence of consent. 52By way of contrast, in Count 3 the complainant explicitly conveyed to the applicant that she was not consenting to him touching her by her immediate and continued efforts to push him away which culminated in her leaving the water to escape his unwanted advances and efforts to fondle her. 53In relation to Count 2, there was also a significant discrepancy which may well have led to the jury having a reasonable doubt as to whether the elements of the offence had been made out. It was the complainant's evidence that she did not go to sleep after the sexual intercourse and that she was not wearing her shorts and underpants when the others awoke. In contrast, Ms Gay and Messrs Watson and McPhee deposed that when they awoke in the morning, they observed the complainant asleep on the floor and that when she and the applicant woke up and that the complainant was wearing her clothes. 54There was, of course, no similar discrepancy in either Count 1 or Count 3. 55Applying the recognised test of "logic and reasonableness" the jury's verdicts in relation to Counts 1, 2 and 3 were well open to them. This ground of appeal has not been made out. 56The orders which I propose are: (1)Leave to appeal granted. (2)The appeal is dismissed. 57ADAMS J: I agree with Hoeben CJ at CL. 58R A HULME J: I agree with Hoeben CJ at CL. ********** 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. Decision last updated: 04 December 2014