Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Jeffreys v R [2015] NSWCCA 132 Hearing dates: 18 February 2015 Date of orders: 04 June 2015 Decision date: 04 June 2015 Before: Hoeben CJ at CL at [1] R A Hulme J at [2] Davies J at [12] Decision: 1. Grant leave to appeal. 2. Dismiss the appeal. 3. Direct that the Appellant be returned to custody to serve the balance of his non-parole period of 9 months and 24 days commencing 4 June 2015 and expiring 27 March 2016 with an additional term expiring on 27 March 2018. Catchwords: CRIMINAL LAW – sexual intercourse without consent – complainant was adult niece of appellant – complainant unable to remember sexual intercourse by reason of alcohol consumption – whether consent given – whether appellant reckless as to consent – whether appellant reasonably believed consent given – summing-up – whether fair and balanced – whether verdict unreasonable Cases Cited: Bin Radimin v R; Bin Zakhria v R [2013] NSWCCA 220; (2013) 235 A Crim R 244 Doyle v R; R v Doyle [2014] NSWCCA 4 R v Sukkar [2005] NSWCCA 54 R v Meher [2004] NSWCCA 355 W v R [2014] NSWCCA 110 Category: Principal judgment Parties: Michael Jeffreys (Appellant) Crown Representation: Counsel: B Walker SC & A Edwards (Appellant) K McKay (Crown) Solicitors: Bosscher Lawyers (Appellant) Solicitor for Public Prosecutions (Crown) File Number(s): 2012/43076 Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 28 March 2014 Before: Wells DCJ File Number(s): 2012/43076 Judgment 1. HOEBEN CJ AT CL: I agree with Davies J 2. R A HULME J: I agree with the orders proposed by Davies J for the reasons his Honour provides. 3. Upon my own assessment of the evidence I am satisfied that it was open to the jury to be satisfied of the applicant's guilt beyond reasonable doubt. 4. One particular aspect of the evidence to my mind rendered the prosecution case particularly persuasive. The complainant said in her evidence that she woke to a feeling of wetness between her legs which made her think that someone had had sex with her. She immediately went and confronted the applicant as he returned to his room from the shower and: "I said something along the lines of 'What did you do to me, what have you done to me'." 1. Almost immediately and in the ensuing two to three hours there were complaints made to three witnesses. Her mother's evidence was that the complainant said that she woke to a realisation that something was wrong and she went and asked the applicant: "Have you done something to me, have you, have you done something wrong to me?" 1. A woman who regarded the complainant as a niece said that the complaint to her included: "I woke up and felt something was wrong. It felt like I'd just had sex and then I heard the shower and I went into [the applicant] and I said, 'did you do something to me?'" 1. The doctor who examined the complainant at the hospital recorded that the complainant said she confronted her uncle and said: "What's going on, have you done something to me". 1. Given there was such consistency between the complainant's evidence about this aspect and her contemporaneous complaints it was well open to the jury to accept it. It strongly supports the notion that the complainant was not aware at the time that it occurred that the applicant had intercourse with her. In turn, this strongly supports the notion that the applicant must have been aware that she was not consenting, or at the very least that he was reckless as to consent. 2. In the light of this evidence, the applicant's case was incredible. It was to the effect that the complainant willingly engaged in intercourse with him and concluded their intimacy by giving him a kiss on the lips. But then, a matter of minutes later, she was querying what had occurred. The proposition that the complainant had simply forgotten in that short passage of time was quite preposterous. 3. A matter that was particularly damaging to the applicant's credibility in my view was his statement to the police officers who arrested him the same morning. He provided a version of events which was broadly consistent with his case at trial. But it included him saying, "She put her hands in my underpants, that should prove she was awake, that it was consensual" (emphasis added). According to the evidence, no-one before this time had suggested to the applicant that the complainant was contending that she had been asleep. 4. These matters, combined with those that are discussed by Davies J, rendered a verdict of guilt quite unsurprising. 5. DAVIES J: The Applicant stood trial before Judge Wells SC and a jury on one count of having sexual intercourse with CS without her consent knowing that CS had not consented to the sexual intercourse. He was found guilty and sentenced to a non-parole period of 20 months commencing 12 February 2014 and expiring 11 October 2015 with an additional term of two years expiring 11 October 2017. 6. He now appeals on the following two grounds: 1. The Jury's verdict of guilty was unreasonable and cannot be supported by the evidence. 2. The summing up was unfair and resulted in a miscarriage of justice. 1. A third "ground" was identified in these terms: 3. No complaint was made by defence counsel at the trial about the directions, and the grounds involve mixed fact and law. If leave is required under Rule 4 of the Criminal Appeal Rules, then leave is sought. Leave is accordingly required for both Grounds 1 and 2, but if Ground 2 is made out, ordinarily leave under rule 4 would be given because a miscarriage of justice would thereby be demonstrated. 1. The facts are usefully summarised in the Trial Judge's Remarks on Sentence. It will be necessary to supplement them later with respect to particular matters. The offender, at the time of the offence, was aged fifty-three and the complainant was aged twenty-nine. She is his niece, being the daughter of his sister. On 8 February 2012, the complainant, [CS], had just broken up or was in the process of a break up with her boyfriend. She was very upset at the time and discussed this matter with the offender, at Byron Bay. Later that evening she arrived at an aunt's house at Byron Bay. She began drinking alcohol with her cousin; drowning her sorrows in relation to what had taken place with her boyfriend. The offender arrived later that evening. There was a plan in place for him to drive her to the airport so she could fly back to Sydney the following day. It is clear on all accounts that she consumed a large quantity of alcohol that evening, having around two and a half bottles of wine. Later that night, the offender and the complainant departed from the house at Byron Bay and on the way to his residence at Ballina called at his girlfriend's house, near Lennox Head. He too was going through something of a break up with Clare Millar. At the house the complainant had another glass or so of wine and then they continued on to his unit in Ballina. The complainant does not remember a great deal of what happened once they arrived at the offender's house but recalls going to bed fully clothed in a dress and underwear. She believed that she had fallen asleep on top of the sheets. It can be inferred from the evidence of phone calls made soon after, that she awoke at about 2am. She immediately did not feel that things were right and had a sense that someone had been having sex with her. As she woke, she thought that this was not possible because her boyfriend was not with her. Soon after she confronted the offender who had just finished having a shower. He admitted that they had sexual intercourse and that it should not have happened but told her that she had consented. She immediately became upset, demanded to know how he could do such a thing to her. He claimed that she had grabbed hold of his penis and put it between her legs and again asserted that it was not rape, as she had consented. After that she called her mother and in a state of considerable distress, disclosed what had happened. There was immediate complaint made to her mother and subsequently to others. The offender took the phone at some point and began talking with the complainant's mother, that is his sister. He was arrested by police later that morning. He conceded that sexual intercourse had taken place but with the complainant's consent. He had already made a voice recording, following the raising of the alarm by the complainant on his mobile phone, placing his account of what had taken place down as a record as soon as possible. 1. It is convenient to consider first the ground concerned with the summing-up for reasons which follow. Ground 2: Unfair summing up 1. The Applicant accepts that no complaint was made by his counsel at the trial about the summing up and that rule 4, therefore, applies. The Applicant submitted that the present ground was closely related to the ground based on an unreasonable verdict. The subject matter of both grounds was largely the same. That led to the result that, if the summing up was regarded as unfair, there would be a miscarriage of justice to justify the exception to rule 4's application. 2. The Applicant submitted that the summing up was unfair because of the repeated references by the Trial Judge to the Complainant having been asleep or unconscious without there being a balanced reference to the Applicant's case which accepted that the Complainant fell asleep but asserted that she woke up at or shortly after the time he got into bed with her. 3. Reference was made to the following passages: A person does not consent to sexual intercourse if the person – the complainant - does not have the opportunity to consent to sexual intercourse, because she is unconscious or asleep. That is, in the most basic terms, what the Crown case or the evidence of the complainant is. She had fallen asleep and the next thing she knew, she had this feeling of something haven taken place and she confronted the accused. She says there was no consent because she was either asleep or unconscious or passed out and that she came to. … (pp. 12-13) ... … As I understand it, they went to their separate rooms, each fell asleep and then the complainant woke up, she says to what she felt or what she believed had taken place and the confirmation of that by the accused. … (p. 13) … … The Crown case is based on what the complainant said about this and she said that she was passed out, that she was unconscious or asleep. Take your pick as to which of those things it was, but that is the account that she gave. … (p. 14) … … The complainant says she was asleep when this happened and it was not a case of saying anything could have happened but she was asleep, if you consider the circumstances shortly before she woke up. … (p. 16) … … You have, in terms of proving his actual knowledge, the Crown says, her evidence that she was asleep and that she woke up - asleep or passed out - and that he, from that, must have known that she was asleep and could not consent. (p 19) … … The Crown says that she was highly intoxicated and it might flow from that, that she was, as she said, asleep, woke up suddenly and became aware of what had happened. … (p. 22) 1. The Applicant submitted that by reason of the Complainant's lack of memory of the events of the night, that she did not volunteer that she was asleep and her acceptance of the fact that she may have been awake, these passages unfairly represented the evidence. In addition, the jury was not reminded of what was said to be her "relatively unusual" reaction to alcohol, namely that she could appear to be composed despite being very drunk and incapable of forming memories. 2. Reference was made to what was said in Doyle v R; R v Doyle [2014] NSWCCA 4 at [409]-[410], Bin Radimin v R; Bin Zakhria v R [2013] NSWCCA 220; (2013) 235 A Crim R 244 at [66]-[67], R v Meher [2004] NSWCCA 355 at [83]-[85] and R v Sukkar [2005] NSWCCA 54 at [92]-[95] about the fairness and balance required from the trial judge in the summing up that puts the defence case fairly and adequately to the jury. These principles are not in doubt. 3. A fair reading of the summing up does not indicate any lack of balance or a failure of the trial judge to put the Applicant's case. The summing up includes the following matters in respect of his case and in respect of what the jury had to consider in terms of the Crown's onus of proof. (a) You need to perhaps consider if she moved in a certain way to indicate consent - would she have done that thinking it was Joel her partner. (pp. 13-14); (b) The defence though say that in the way that she responded to the accused - they point to what he says - that she indicated consent by touching him and taking his penis and putting it inside her; (p. 14) (c) What the accused then says is that on his recollection, his version of what took place, he was lying behind her and that she indicated consent and not by words it seems as Mr Crown submitted to you. Not a word was said: but by her physical actions when he was lying behind her and by moving his hand to a genital area, touching his genital area. Taking out his penis and putting it inside her, along with the removal of clothes and so on, and afterwards sitting up and kissing him, is all evidence and an indication that she was in fact consenting. (pp. 14-15) (d) In considering this question [consent], on behalf of the accused reliance is placed on her evidence that she simply cannot rule anything in or out. How then does the Crown prove that there was a lack of consent - that she did not consent to this accused having sexual intercourse with her. (p. 15) (e) You perhaps might consider whether the Crown can exclude that she consented to sexual intercourse with her uncle but has forgotten that she did so in the time between giving consent and discovering the act of intercourse had taken place. (p. 15) (f) On the other hand, does the accused's version raise a reasonable doubt that she did in fact respond, that she knew it was him and she has either chosen not to be frank about it or that she has actually forgotten consenting to him, her uncle, having sexual intercourse with her. I have put the evidence in a different way there, that is not to suggest that the accused has some onus of proof. The onus of proof rests with the Crown. (p. 16) (g) And again, I remind you that, in relation to all of that, on behalf of the accused, it is pointed out that she said she could not rule anything in or out. (p. 16) 1. Contrary to the Applicant's submission, there was no evidence that the Complainant had an unusual reaction to alcohol in the way described. There was evidence from the Complainant that when she became drunk she lost memories but that was entirely consistent with Dr Stevenson's evidence who said the following in her evidence in chief: Q. What sort of clinical effects could one expect with a blood alcohol concentration in that range? A. You might see that the person is emotionally unstable, has poor sensory perception, so poor ability to see and hear. Impaired memory is definitely within that range and impaired - impaired ability to understand things and some incoordination and loss of balance is possible in that range as well. Q. So impairment and loss of balance could, for example, include unsteadiness on feet, staggering, the sort of thing that we sometimes see— A. Yes. Q. --on the streets of Sydney on our televisions? A. Yes, towards the higher range you might get some incoordination and staggering at that level. Q. You talk about impaired memory and comprehension, is there a difference between impaired memory and loss of memory? A. Yes, you know when we're talking about loss of memory, which is an alcohol related blackout that people sometimes get, you can get complete memory loss, where you don't remember anything from preceding times. Or you can get a fragmentary memory loss, where you can remember something happened but you can't remember the details of it. So impairment of memory really can encompass both of those things from complete blackout of memory to fragmentary blackout of memory. … Q. Impaired memory, including both fragmented memory and loss of memory would be possible? A. That's correct. 1. That did not demonstrate an unusual reaction to alcohol. It simply reinforced the conclusion, well-known to laypersons and professionals alike, that excessive drinking can impair memory. It was never suggested to Dr Stevenson that the way the Complainant reacted to alcohol, as reported by her and others, was in any way unusual. 2. The one matter to which counsel for the Applicant at both the hearing and the appeal returned and emphasised was the Complainant's lack of recollection about large portions of the evening and night. Nothing in the summing up, as the above passages demonstrate, suggests that the trial judge overlooked that matter. Her Honour clearly identified the issue for the jury. The view to which the jury must have come was not achieved by any unfairness or lack of balance in the summing up. 3. I would reject this ground. Ground 1: Unreasonable verdict 1. The principles concerning this ground were recently discussed by this Court in W v R [2014] NSWCCA 110 as follows: [150] The principles on which this ground is to be determined were reaffirmed by the majority of the High Court in SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 in the following terms: "[11] It is agreed between the parties that the relevant function to be performed by the Court of Criminal Appeal in determining an appeal, such as that of the applicant, is as stated in M v The Queen by Mason CJ, Deane, Dawson and Toohey JJ: 'Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.' [12] This test has been restated to reflect the terms of s 6(1) of the Criminal Appeal Act. In MFA v The Queen McHugh, Gummow and Kirby JJ stated that the reference to 'unsafe or unsatisfactory' in M is to be taken as 'equivalent to the statutory formula referring to the impugned verdict as "unreasonable" or such as "cannot be supported, having regard to the evidence".' [13] The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M went on to say: 'In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.' Save as to the issue whether the Court of Criminal Appeal erred in not viewing a videotape of the complainant's police interview, to which reference will be made later in these reasons, this qualification is not relevant to the present matter." (Citations omitted). [151] It is not enough for the verdict to be unreasonable that a review of the evidence shows only that it was possible for the jury (or in this case the trial judge) to reach a different conclusion. That was made clear by Hayne J in Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559. In a passage with which Gleeson CJ and Heydon J agreed, his Honour made the following remarks: "[113] It is clear that the evidence that was adduced at the trial did not all point to the appellant's guilt on this first count. But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard. In the present case, the critical question for the jury was what assessment they made of the whole of the evidence that the complainant and the appellant gave that was relevant to the issue of consent to the digital penetration that had occurred in the park. That evidence did not require the conclusion that the jury should necessarily have entertained a doubt about the appellant's guilt." (Emphasis in the original, citations omitted). [152] However, it is not sufficient that there was evidence on which a jury could convict. So much is made clear in the passage from M v The Queen [1994] HCA 63; (1994) 181 CLR 487, cited in SKA v The Queen supra at [13]. If, after giving full weight to the primacy of the jury, the court is left in reasonable doubts as to the verdicts, it is only where the jury's advantage in seeing and hearing the evidence is capable of resolving a doubt, the court can conclude there was no miscarriage of justice (see also MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 at [26] and [55]-[56]). 1. Senior Counsel for the Applicant drew attention to a number of passages in the Complainant's evidence to demonstrate not only that although she had no recollection of a number of events of the evening these events in fact took place. Senior Counsel then submitted that the jury could not properly infer from the fact that the Complainant had no memory of the matters that they had not occurred. In that regard the Applicant drew attention to what he said happened after he got into bed with the Complainant, namely, that she grabbed his hand and put it between her legs, she then put her hand on his side and down onto his penis and, after removal of their clothes she placed his penis between her legs. Those actions meant, therefore, that it was not open to the jury to find that the Applicant knew that the Complainant did not consent to intercourse. 2. The Applicant submitted that the lack of memory of events which occurred or may have occurred raised the issue of the onus of proof on the Crown to prove beyond reasonable doubt that the Complainant did not consent and the Applicant knew that she did not consent. 3. The case was largely a circumstantial one. The jury had available the Appellant's ERISP and the recording made on his mobile phone on the morning of the incident. He did not give evidence at the trial. They had no evidence from the Complainant concerning what took place at the time of the sexual intercourse because she was not able to remember the incident at all. The jury was, therefore, required to draw inferences on all of the material before them. That material relevantly was as follows: (1) The Complainant's account on awakening shortly after the incident including her early complaint; (2) The evidence of the hours before the incident when the Complainant and the Applicant were in each other's company. There was no evidence of sexual interest by the Complainant in the Applicant. (3) During that evening the Applicant had been in her company long enough to know that she had consumed a considerable amount of alcohol at her cousin's place, at Clare Millar's place and then at the Applicant's house, although in his ERISP the Applicant said he did not know she had drunk alcohol at his place. A bottle of red wine, partly drunk, was found near the bed in which the Complainant slept. The Applicant said it was not his wine. (4) The evidence from the Applicant's former girlfriend, Clare Millar about a conversation she and the Appellant had that afternoon where he asked Ms Millar, "Do you think that she [the Complainant] will sleep in a bed with me?" (5) The evidence of Dr Stevenson about the likely effect of the amount of alcohol that the Complainant had consumed. (6) The evidence of the conversation at the house of the Complainant's cousin Lucas where the Complainant expressed the view (in the presence of the Applicant) that the Applicant's relationship with Clare Millar was "wrong" (as Lucas asserted she said) or "gross" (as her aunt Victoria reported it) because Clare was about the same age as the Complainant, and the Applicant was some 20 years older. 1. In the first place, it seems clear that the jury rejected the Applicant's account, given in his recording on his phone and in his ERISP, of what occurred. The enquiry is whether the jury must, not might, have entertained a doubt taking into account the circumstantial matters set out above. The Applicant submitted that because the Complainant's evidence was that she "couldn't rule anything in or out", there was no sufficient evidence to prove a lack of consent. The jury, therefore, ought to have entertained a reasonable doubt. 2. The Complainant's agreement with the cross-examiner's question that she couldn't rule anything in or out cannot be viewed in isolation. When asked if she consented to the intercourse she said: "I would never ever consent to having sex with my uncle". When viewed with the evidence of the Complainant's relationship with the Applicant (as a confidante, he said) including the lack of any sexual interest in him, particularly during the hours leading up to the sexual intercourse, and her view about the age difference between him and his girlfriend (her contemporary), the jury could well have regarded her answer that she could not rule anything in or out as saying no more than she had repeatedly said, namely, that she could not remember very much of the night and nothing of the sexual intercourse. 3. The Crown's final address to the jury concentrated on the matter of recklessness on the Applicant's part. He knew the way she viewed him and, particularly, that she had demonstrated no sexual interest in him. He knew from the conversation at Lucas's place her view about the age difference between the Applicant and his girlfriend, and he knew the Complainant had consumed quite a lot of alcohol whereas he was completely sober. He also knew that she had fallen asleep on top of the sheets on the bed. The jury could well have concluded in the circumstances that he knew she had effectively passed out from her alcohol consumption. 4. When those matters are considered along with the conversation Clare Millar reported with the Applicant earlier that day ([30](4) above), it was open to the jury to conclude that the Applicant was reckless as to whether the Complainant was consenting, alternatively, that he had no reasonable belief that she was consenting. 5. On the Appellant's own evidence in his ERISP he and the Complainant sat talking about his relationship with Clare, they apparently undertook some yoga, they then went to their own beds, a few hours later, he woke up, got into bed with the Complainant and without a word said, she initiated sexual contact between them. As the presiding judge said during the hearing of the appeal, the jury were entitled to say that it was absolutely extraordinary that there had been such a change of approach on her part that the jury could infer that she did not consent to what happened. It was open to the jury to conclude beyond reasonable doubt that the Appellant could not possibly have believed that she was consenting. 6. No doubt a further consideration for the jury was whether the Complainant's reaction to what happened was born out of regret at having done something under the influence of alcohol that she later regretted. They may well have reasoned, as the Crown suggested in his final address, that if she had engaged in sexual intercourse with her uncle and then regretted it because of how it might be seen inside and outside the family, she would more likely have made an arrangement with him to keep it their secret than make immediate complaint to her mother, leave his house hurriedly in the middle of the night with nowhere to go, and then report the matter to the police. 7. The Appellant submitted that, given the Complainant's lack of recollection of the events of the night, the jury's verdict was consistent only with a reversal of the onus of proof. I took the submission to be one that asserted if the jury rejected the Appellant's version in his recorded message and his ERISP they could only have reached a guilty verdict without proceeding to examine whether the Crown had nevertheless proved its case to the required standard. The Crown could not have done so because of the lack of recollection on the Complainant's part. 8. This submission ignores the significant circumstantial evidence and the consideration of it set out earlier. That evidence, taken with her statement that she would never have consented to have sex with her uncle, was entirely sufficient for the jury to be satisfied beyond reasonable doubt that she did not consent and that either the Appellant was reckless as to whether she consented or that he had no reasonable grounds for thinking that she was consenting. 9. I would reject this ground. 10. As noted earlier, the Appellant was sentenced to a non-parole period of 20 months commencing 12 February 2014 with an additional term of 2 years. On 18 December 2014 the Appellant was released to bail pending the outcome of the appeal. He had, therefore, completed 10 months and 7 days of his sentence. He should be returned to custody to complete at least his non-parole period. The parties are agreed that he must serve a further minimum term of 9 months and 24 days commencing 4 June 2015 and expiring 27 March 2016. His additional term will expire on 27 March 2018. 11. I propose the following orders: 1. Grant leave to appeal. 2. Dismiss the appeal. 3. Direct that the Appellant be returned to custody to serve the balance of his non-parole period of 9 months and 24 days commencing 4 June 2015 and expiring 27 March 2016 with an additional term expiring on 27 March 2018. ********** Amendments 04 June 2015 - Reformatting of quotes at paras 19 and 22 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 June 2015