Mason v R (No. 2)

1. [1]

   JOHNSON J: The Applicant, Wayne Paul Mason, seeks leave to appeal against conviction with respect to one count of aggravated sexual intercourse without consent contrary to s.61J(1) Crimes Act 1900.

2. [2]

   Between 6 August 2012 and 19 September 2012, the Applicant stood trial at the Sydney District Court before his Honour Judge Frearson SC and a jury on an indictment that contained 52 counts. The charges related to sexual offences alleged to have been committed against four different female complainants when they were each under 16 years of age, as well as charges of using a child for a pornographic purpose, disseminating child pornography and one count of perverting the course of justice. The Applicant was found guilty in respect of 44 of those counts. He was acquitted on seven counts and the jury could not agree on one count.

3. [3]

   On 1 February 2013, the Applicant was sentenced to an aggregate term of imprisonment comprising a non-parole period of seven years and five months commencing on 24 July 2012 and expiring on 23 December 2019, with a balance of term of three years and six months commencing on 24 December 2019 and expiring on 23 June 2023.

The Ground of Appeal

1. [4]

   The Applicant relies upon a single ground of appeal against conviction which contends that the verdict of the jury regarding Count 16 is inconsistent and cannot be supported by the evidence.

2. [5]

   This ground does not involve a question of law alone and therefore the Applicant requires leave to appeal: s.5(1) Criminal Appeal Act 1912; Rasic v R [2009] NSWCCA 202 at [12].

3. [6]

   The offence to which this conviction appeal relates (Count 16) attracted an indicative sentence of imprisonment for three years and six months.

4. [7]

   In the event that the conviction appeal succeeded and a verdict of acquittal was entered upon Count 16, counsel for the Applicant submitted that the appropriate course for this Court to take was to utilise ss.52 and 59 Crimes (Sentencing Procedure) Act 1999 to consider whether it was appropriate to vary the aggregate sentence imposed by the sentencing Judge.

5. [8]

   Apart from this consequential aspect if the conviction appeal succeeded, there is no challenge made to sentence.

Factual Background

1. [9]

   Given the single ground of appeal relating to one count only, the factual background to this count may be expressed relatively briefly.

2. [10]

   The Crown case at trial included the evidence of four complainants, each of whom alleged that the Applicant had committed sexual offences when each girl was under 16 years of age. The Crown case included a number of photographs of the girls, with some depicting the Applicant as well.

3. [11]

   The complainant in Count 16, RS, met the Applicant through her church in 2001 when she was 14 years old. The Applicant was the leader of the Sunday School and also organised group activities for the children. In 2001, the Applicant was aged 31 years and he was also a serving police officer.

4. [12]

   Counts 8 to 30 involved 23 alleged offences involving RS. Of these counts, the Applicant was convicted of 18 offences. The Applicant was acquitted on four counts (Counts 8, 18, 22 and 24) and the jury could not reach a verdict on a further count (Count 25).

5. [13]

   The Applicant was convicted by the jury of the following offences involving RS:

6. [14]

   Apart from offences involving RS, the Applicant was convicted by the jury of the following offences:

7. [15]

   The Applicant did not give evidence at the trial. It was the defence case that the Applicant did not have sexual relations with any of the complainants when they were under 16 years of age, and that it could not be proved beyond reasonable doubt that the complainants were under 16 years of age in some of the relevant photographs.

8. [16]

   In his remarks on sentence dated 1 February 2013, the sentencing Judge referred to the verdicts on counts involving RS in the following way (ROS10-11; AB233-234):

9. [17]

   Relevant to the present appeal, the sentencing Judge made findings with respect to Counts 14, 15 and 16, all of which occurred on the same day (30 November 2001) (ROS14-15; AB237-238):

10. [18]

    Some further detail is required concerning the evidence of RS, in particular with respect to Counts 14, 15 and 16

11. [19]

    As mentioned earlier, RS gave evidence that she had met the Applicant through her church in 2001, when she was 14 years old and the Applicant was 31 years old. RS was aware that the Applicant was a serving police officer. What follows is based largely upon the evidence of RS at the trial and is drawn mainly from the Crown summary.

12. [20]

    RS explained that, from very early on, the Applicant had bestowed attention on her and made her feel special. She explained that she had not had that sort of attention from anyone before.

13. [21]

    The Applicant initiated email contact with RS. Initially, the emails were innocuous but they became more flirtatious. The Applicant and RS also commenced to communicate by text message. The Applicant did drawings of RS which he gave to her, as well as a ring. He wrote to her about having feelings for her, even though she was so much younger than him.

14. [22]

    Soon after RS’s 15th birthday (in September 2001) during a group sleep over at the church hall, the Applicant slept on a lounge with RS. When she woke, he was over the top of her and kissed her. He told her she would get into trouble if she told anyone about it. Later she told a friend. The Applicant told her to say it was a dream and she did so.

15. [23]

    In October-November 2001, the Applicant suggested driving RS to Stanwell Tops which they did. He put a blanket on the grass and passionately kissed her and then he drove her home. She was 15 at the time (Count 9).

16. [24]

    According to RS, the Applicant made it quite clear to her from the beginning that she was not to tell anyone about them. He told her that she would get into trouble. Later, he explained this in terms of their relationship being just “too early for its time” and that people would not understand because of his job as a police officer and their age difference. RS explained that she liked the way the Applicant made her feel so she was happy to go along with it.

17. [25]

    Soon after the Stanwell Tops offence (Count 9), they made arrangements to see each other at RS’s home after the Applicant had finished a late shift at work. He was in his police uniform. He came through the back gate and the back door which RS had left open. He laid down with RS on her bed and starting kissing her. He told her that he wanted her to suck his penis and she did so. Then he said he wanted to lick her vagina which he did afterwards saying “I’ve been waiting so long to taste you” (Counts 10 and 11). The Applicant tried to persuade RS to have penile vaginal intercourse, however she said that she was not ready to do so.

18. [26]

    The Applicant took her shopping and brought her new clothes which made her feel very special. RS wore these clothes on a school excursion to the Sydney Tower and afterwards she stayed in the city and met with the Applicant. She was able to do this because the Applicant forged a permission note from her mother saying that she could. She stayed that night at the Applicant’s house and the next day she did not go to school. She described them “playing” with each other, by which she meant she sucked his penis and he licked her vagina. The complainant was still 15 years old at this time (Counts 12 and 13).

19. [27]

    RS said that around the time they started having oral sex, she discussed with the Applicant that due to their shared religious beliefs, she did not want to have penile vaginal sex with anyone until she was married (T83; AB1042).

20. [28]

    In late November 2001, about six weeks after her 15th birthday, RS described the Applicant picking her up after a school presentation night. He was to drive her home, but suggested first that they go and “play” for a bit. He drove to a vacant lot in Chullora and he folded down the back seat and got out a blanket and a pillow. They laid down in the back and, after kissing and removing their clothes, she put his penis in her mouth and then he performed oral sex on her (Counts 14 and 15).

21. [29]

    After that, he was lying over the top of her and had his penis on top of her vagina, rubbing it against her (but not inside her). He was “just using the saliva he had created down there as lubrication” and the Applicant said to her “It’s OK, I’m just swimming, I won’t go any further” (T83; AB1042). But then the Applicant put his penis inside her vagina and began to penetrate her. The Applicant said to her “Now we are one” (T83; AB1042). It was this first act of penile vaginal intercourse that constituted Count 16, the conviction which gives rise to the present ground of appeal.

22. [30]

    On the way home afterwards, RS was very quiet and did not say anything to the Applicant.

23. [31]

    The next day, the Applicant sent RS a letter apologising and saying that it would not happen again (T84; AB1043).

24. [32]

    Soon after that, RS said that the Applicant took her shopping in the city and he bought her a wallet and t-shirt. She described things as being “back to being more friends” (T84; AB1043).

25. [33]

    The Applicant then started to explain to her that “If you’re in a relationship with someone you need to make the other person happy” and that “If you don’t have sex with someone then the relationship goes nowhere” (T85; AB1044). RS said that, at that time, she did not want the Applicant to leave her, but that she believed they were “boyfriend and girlfriend” and that she wanted this to continue. She felt that if she “didn’t do as he wished that he would leave and like break up with me” (T85; AB1044).

26. [34]

    RS said that, as a result of this conversation, their sexual relationship started to include penile vaginal intercourse in addition to fellatio and cunnilingus. These types of sexual acts continued to occur for about another nine or 10 months, before she finally broke up with the Applicant in about October 2002, because she had suspicions that the Applicant was having a relationship with another young girl, AF (see Counts 31 to 48). The Applicant was convicted of sexual offences with AF (then 14 years old) which were committed in the first half of 2002 (Counts 31-36, 38-42).

27. [35]

    RS referred to an item described as the “Book of Shadows” which was a “letter book we had together”, containing letters and drawings which were communications between the Applicant and her (T100; AB1059). After she and the Applicant broke up, he asked for the “Book of Shadows” to be given back to him, as he “said it was too dangerous for me [RS] to have in my possession” and she gave it back to him (T124; AB1083). The Applicant asked for the letter of apology (see [31] above) back from RS after they broke up, and she gave it back to him at the same time as the “Book of Shadows” (T170-171; AB1129-1130).

28. [36]

    About a month after breaking up with the Applicant, in November or early December 2002, RS told a friend, VZ, that the Applicant had “raped her and sexually abused her” (T886; AB1845).

29. [37]

    Steven Chard was senior pastor at the church attended by the Applicant and RS. He was called as a witness in the defence case at trial. He gave evidence of having a conversation with RS in December 2002, in which she said that she wished to make a complaint about the Applicant. In response to a question from Mr Chard as to whether the Applicant had had sex with her, RS said “Twice, when I was 14 and when I was 15”. Mr Chard asked “Was it with your permission?” and RS replied “One of them wasn’t” (T1105; AB2064).

30. [38]

    It is not necessary to recount the circumstances surrounding the offences after Count 16 for the purpose of determining the ground of appeal.

Submissions of the Applicant

1. [39]

   Mr Game SC, for the Applicant, pointed to the fact that Count 16 required the Crown to prove an absence of consent by RS, and that the Applicant knew that RS was not consenting to the act of penile vaginal intercourse. He noted that this was an important point of distinction between Count 16 and other counts of which the Applicant had been found guilty.

2. [40]

   Mr Game SC submitted orally that the ground of appeal should be approached as an unreasonable verdict ground and not an inconsistent verdict ground (T20, 24 November 2015). He submitted, however, that the Court could have regard to the acquittals on counts involving RS in determining the unreasonable verdict ground.

3. [41]

   The written submissions for the Applicant pointed to the counts concerning RS which had resulted in acquittals, and noted the sentencing Judge’s comments with respect to these counts (see [16] above). It was submitted that the evidence available to sustain Count 16 appeared to be no different to the evidence available regarding Counts 22, 24 and 25, with acquittals resulting on Counts 22 and 24 and the jury unable to agree on a verdict on Count 25.

4. [42]

   The following submissions were made for the Applicant by reference to the evidence adduced in support of Count 16:

5. [43]

   It was submitted for the Applicant that the verdict of guilty on Count 16 was unreasonable and that it could not be supported by the evidence, with the acquittals on other counts concerning RS fortifying this conclusion.

Submissions for the Crown

1. [44]

   The Crown submitted that the verdict of guilty on Count 16 was reasonably open to the jury so that the Court should reject the Applicant’s ground of appeal.

2. [45]

   The Crown responded to each of the specific submissions made for the Applicant with respect to Count 16 (see [42] above):

3. [46]

   To the extent that the Applicant sought to rely upon acquittals on a number of the counts, the Crown submitted that it had not been argued that the acquittals necessitated a conclusion that the credibility of RS had been undermined, in respect of all of the counts on the indictment where there were guilty verdicts. Rather, it was only the conviction on Count 16 which is under challenge, with acquittals upon several counts being relied upon by the Applicant in an indirect way. The Crown submitted that, to the extent that inconsistent verdicts were part of the Applicant’s submission, the verdict of guilty on Count 16 was both logical and reasonable.

4. [47]

   The Crown noted that there was either an absence of evidence or some evidence in the defence case, which bore upon the acquittals on Counts 22 and 24. The sentencing Judge referred to these differentiating aspects in the remarks on sentence (see [16] above).

5. [48]

   Further, there were some features affecting Count 25 (where the jury could not agree) which did not affect the evidence in support of Count 16.

6. [49]

   The Crown submitted that the ground of appeal should be rejected.

Decision

1. [50]

   The well-known principles to be applied, when determining a ground of appeal which asserts that a verdict is unreasonable or cannot be supported by the evidence, were summarised by Bathurst CJ (Hoeben CJ at CL and Bellew J agreeing) in W v R [2014] NSWCCA 110 at [150]-[152]:

2. [51]

   It is important in this case, that the jury had an opportunity to see and hear the witnesses, including RS, give evidence at trial.

3. [52]

   To the extent that the Applicant relies, in support of the challenge to conviction on Count 16, upon acquittals on some counts involving RS, it should be kept in mind that the test is one of logic and reasonableness: MacKenzie v The Queen [1996] HCA 35; 190 CLR 348 at 366.

4. [53]

   The principles to be applied, where an unreasonable ground is sought to be supported by a claim of inconsistent verdicts, were mentioned by Hoeben CJ at CL (Davies J and myself agreeing) in ML v R [2015] NSWCCA 27 at [46]-[48]:

5. [54]

   To my mind, the Crown responses (at [45] above) to the particular submissions advanced for the Applicant, are highly persuasive. There were features of the evidence, surrounding Count 16, which provided a solid foundation for a conclusion that RS was not consenting to penile vaginal intercourse and that the Applicant knew that she was not consenting at the time of the act.

6. [55]

   RS gave evidence of a conversation with the Applicant concerning her wish that sexual activity not proceed to penile vaginal intercourse. Her position had been made clear to the Applicant and he understood it at the time of the events giving rise to Count 16. The Applicant told RS that he was just “swimming” externally on top of her genital area, and that he would not “go any further”. Despite this assurance, he inserted his penis in her vagina and engaged in penile vaginal intercourse, with the Applicant saying to RS “Now we are one”. The Applicant apologised to RS for this, including a written apology the next day. It was her evidence that this letter had been returned to the Applicant, at his request, at the end of their relationship.

7. [56]

   Other features of the evidence supported a conclusion that the act involved in Count 16 was non-consensual. There was complaint by RS to VZ of rape and sexual abuse (see [36] above). Further, there was complaint by RS to Mr Chard in December 2002 that she had had sex twice with the Applicant and “one of them” was not with her permission (see [37] above).

8. [57]

   This Court is entitled (as was the jury) to have regard to the Applicant’s course of manipulative conduct towards RS over an extended period of time. The Crown’s response to the Applicant’s submissions referred to aspects of this. It included the Applicant’s justification for the continuation of penile vaginal intercourse after the initial non-consensual act, a course of manipulation of RS which succeeded. All of this occurred at a time when the Applicant was twice the age of the teenager, RS.

9. [58]

   The Applicant’s submissions by reference to the retraction by RS of the allegations is also to be viewed in light of the manipulation of RS by the Applicant. Other features of this manipulation included the Applicant’s use of his status as a police officer and as a church worker, presenting as a person whom RS held in high regard.

10. [59]

    The acquittal of the Applicant on some counts concerning RS is explicable. The verdicts suggest that the jury worked their way through the various counts, reaching verdicts which accorded with the evidence and the directions of the trial Judge.

11. [60]

    I am satisfied that a sound and clear foundation exists for the verdict of guilty on Count 16. The verdict on Count 16 is both logical and reasonable.

12. [61]

    Applying the relevant principles where a claim is made of an unreasonable verdict, I am well satisfied that the verdict of guilty on Count 16 was reasonably open to the jury in this case. I am left with no reasonable doubt of the Applicant’s guilt on Count 16.

13. [62]

    I would reject this ground of appeal.

Conclusion

1. [63]

   For the above reasons, I propose that leave to appeal be granted, but that the appeal be dismissed.

2. [64]

   BUTTON J: I agree with Johnson J.

3. [65]

   FAGAN J: I agree with Johnson J.