Hopgood v R

1. [1]

   JOHNSON J: The Applicant, Troy Hopgood, seeks leave to appeal following a trial before his Honour Acting Judge Black QC at the Lismore District Court in 2017 at which he was convicted of offences of aggravated break and enter and commit a serious indictable offence under s.112(2) Crimes Act 1900 and having sexual intercourse without consent under s.61I(1) Crimes Act 1900.

The Applicant’s Trial

1. [2]

   The Applicant was tried before his Honour Acting Judge Black QC at a Judge-alone trial which commenced on 20 June 2017 with verdicts being returned on 30 June 2017.

2. [3]

   The Applicant had applied to be tried by Judge alone and the Crown consented to that application.

3. [4]

   The counts in the indictment and verdicts were as follows:

4. [5]

   On 4 August 2017, the Applicant was sentenced for these offences as follows:

Extension of Time to Bring Appeal

1. [6]

   The Applicant requires an extension of time for the purposes of his application for leave to appeal. In this respect, the Applicant relies upon the affidavit of John Pearson affirmed 21 December 2018. Mr Pearson is a solicitor with Legal Aid NSW and provides a history of the matter in this Court. A Notice of Intention to Appeal was filed on 14 August 2017 and was extended thereafter on a number of occasions. The Notice of Intention to Appeal lapsed on 15 August 2018. Mr Pearson’s affidavit states that the Applicant was refused legal aid for the purpose of the appeal on 15 July 2018 and he was notified on 20 September 2018 that his application to the Legal Aid Review Committee was unsuccessful.

2. [7]

   On 21 December 2018, the Applicant filed a Notice of Application for Leave to Appeal.

3. [8]

   Section 10(b) Criminal Appeal Act 1912 permits the Court to extend time for the bringing of an appeal which is otherwise out of time.

4. [9]

   In Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at 614 [32], French CJ, Hayne, Bell and Keane JJ referred to provisions allowing extension of time to appeal against conviction and sentence:

5. [10]

   Earlier in Kentwell v The Queen, their Honours said at 613 [29] (footnotes omitted):

6. [11]

   Relevant to the determination of the interests of justice on an application to extend time are the prospects of success should the extension be granted: Kentwell v The Queen at 614 [33].

7. [12]

   The delay in the Applicant bringing this application is explained largely by his unsuccessful application to obtain legal aid for the proceedings in this Court. The interests of justice test to be applied on the present application for extension of time focuses attention upon the merits of the application itself against the background of the Applicant’s trial for matters involving a 78-year old complainant.

8. [13]

   I will return to the issue of extension of time after considering the merits of the application.

The Grounds of Appeal

1. [14]

   The Applicant prepared grounds of appeal and appeared for himself at the hearing before this court on 19 August 2019.

2. [15]

   The Notice of Application for Leave to Appeal filed on 21 December 2018 contained, in handwritten form, the following grounds of appeal:

3. [16]

   In support of his application, the Applicant filed handwritten submissions including a document dated 23 June 2019 which had been prepared for the Applicant by another prisoner. The Court had regard to the Applicant’s written submissions together with the oral submissions made by the Applicant at the hearing on 19 August 2019.

4. [17]

   In accordance with usual practice, the Crown furnished written submissions and a summary of the trial which the Court took into account together with the short oral submissions made by the Crown at the hearing on 19 August 2019.

5. [18]

   The Crown written submissions noted that an argument raised by the Applicant in writing seemed to challenge the sentences as well as the convictions. On this basis, the Crown made short submissions on sentence which will be mentioned later in this judgment.

Factual Background and Course of the Trial

1. [19]

   I observe at the outset that the Applicant was represented by experienced counsel at trial.

2. [20]

   The Crown case with respect to Counts 2 and 3 was that, in the early hours of the morning of 2 October 2016, the Applicant broke into the complainant’s unit through her kitchen by removing the screen on her window which he opened. The complainant was in bed at that time. It was the Crown case that the Applicant sexually assaulted the complainant by forcing his penis into her mouth. It was alleged, as well, that on his way out of the bedroom, the Applicant stole some earrings belonging to the complainant.

3. [21]

   The Applicant and the complainant were friends, although the nature of their relationship was in dispute at the trial. As at October 2016, the complainant was 78 years old and she lived alone in a unit which she had purchased in Tweed Heads in 2013. The Applicant was 27 years old. He was living in a unit in the same block with his mother and he came to know the complainant in this way. The complainant would sometimes give the Applicant lifts to places in her car and buy him food, alcohol and cigarettes or give him money. The Applicant was an “Ice” user. The complainant stated that she was lonely and liked having the Applicant for company.

4. [22]

   The Applicant went to gaol for six months and, during this time, he telephoned the complainant from gaol most weeks. When the Applicant was released from custody, the complainant held a party for him and his cousin in her unit. Soon after this, the Applicant’s cousin came to stay with the complainant for about 10 days. The Applicant would come over regularly, look for food and alcohol in the complainant’s fridge and ask to take her car.

5. [23]

   The complainant did not recall the date of the offences, but other evidence established that it was early in the morning of 2 October 2016. She had gone to bed the night before after drinking one or two glasses of red wine. She had locked the sliding glass door that led to the balcony. The front door of the unit was locked and all the windows were closed.

6. [24]

   It was the evidence of the complainant that she woke up and saw a male figure at the bedroom door. He shone a light in her face. She saw that it was the Applicant, naked. She asked how he got inside and he said that he came over the balcony through the kitchen window. He came over to her bed and forced his erect penis into her mouth and down her throat. She tried to push him away and said “Get away, you’re hurting me”. He told her to shut up and grabbed the back of her head, pushing his penis further down into her throat.

7. [25]

   The Applicant withdrew his penis. The complainant thought that he had ejaculated and she grabbed a handkerchief from under her pillow and spat into it. She went to the kitchen to rinse out her mouth. The Applicant went into the bathroom and then came out and got dressed. The complainant picked up a knife and told him to get out and he ran out of the unit.

8. [26]

   The complainant stated that she lay on her bed upset and crying and that the back of her head hurt. In the morning, she noticed that some earrings were missing from her dresser. She noticed, as well, the screen from her kitchen window was on the ground on the balcony. She put it back on and taped it up.

9. [27]

   Later that day, the complainant called the police. A police officer took a notebook statement from her and, the next day, the police interviewed the complainant on video in which she described what had happened. The complainant went to the hospital and was examined by Dr Shauna Purser. Dr Purser observed a red area at the rear of the complainant’s head in the hairline which could have been a bruise or chaffing from force being applied to the complainant’s skin. Dr Purser considered that the mark was consistent with the history given by the complainant.

10. [28]

    The complainant gave police the handkerchief which she had spat into after the incident. A presumptive test for semen returned a negative result. When examined by a forensic biologist, however, human semen was detected on the handkerchief and the DNA had the same profile as the Applicant (Exhibit O).

11. [29]

    Police searched the Applicant’s bedroom in his mother’s unit. Some items of jewellery were seized from the bedroom including earrings. On 13 October 2016, the complainant identified the earrings as being hers.

12. [30]

    On 5 October 2016, police conducted an interview with the Applicant. The Applicant said that the complainant was “constantly hassling” him for sex. He said that he liked her company and he had sex with her for money. He said that, since being out of gaol, he had sex with her once, including oral sex. He said that he went to the complainant’s unit on the previous Monday morning and she offered him money to have sex with her and to go and get some “Ice”. He said she gave him oral sex and then she asked him to have sex with her, but he said that he did not want to and the complainant started yelling at him in a jealous rage, ranting and talking about the police. The Applicant told police that he had previously got into the unit by jumping the balcony and going in the back door, but that he did not do this at 1.00 am on Sunday, 2 October 2016.

13. [31]

    In cross-examination of the complainant at trial, it was suggested that she had been interested in a sexual relationship with the Applicant and that they had spoken about sex during a recorded call from the gaol. The complainant said that she had told the Applicant that she had feelings for him, but there had never been any sexual activity. The complainant denied that the Applicant had been to her house at about 8.00 am on the morning of the incident. She disagreed that she willingly performed oral sex on the Applicant and asked him for sex and that they had an argument about her having to pay him for sex. The complainant was cross-examined about inconsistencies in her account regarding her past relationship with the Applicant, the events of the night in question and details she had told police.

14. [32]

    The Applicant did not give evidence at the trial.

The Judgment on Conviction

1. [33]

   Given the grounds of appeal, it is appropriate to set out parts of the trial Judge’s reasons for returning verdicts described earlier in this judgment.

2. [34]

   Following introductory comments identifying the counts and some procedural features concerning the trial, his Honour recounted a number of legal directions which are not challenged in this Court. The trial Judge described the fundamental issue in the trial in the following way (page 3 of Judgment):

3. [35]

   His Honour then referred to what were described as the “basic allegations” concerning each count (pages 3-4 of judgment):

4. [36]

   The trial Judge then summarised what were described as the “fundamental criticisms” of the complainant’s evidence which were said to bear upon her reliability and truthfulness (pages 4-7 of judgment).

5. [37]

   With respect to defence challenges to the evidence of the complainant, the trial Judge expressed the following conclusions (pages 7-9 of judgment):

6. [38]

   The trial Judge then addressed the forensic evidence concerning the presence of the Applicant’s semen in the complainant’s handkerchief and the fingerprint evidence, noting that “neither of those results were inconsistent with [the complainant’s] evidence” (page 10 of judgment). His Honour observed that it was “probably convenient to deal with the medical evidence in the same way” with the judgment then referring shortly to that evidence (pages 10-11 of judgment).

7. [39]

   His Honour explained why the Applicant was to be acquitted on the first count (page 11 of judgment):

8. [40]

   His Honour then gave reasons for returning a verdict of not guilty on the third count, but guilty with respect to the statutory alternative under s.61I(1) Crimes Act 1900 (pages 11-13 of judgment):

9. [41]

   The trial Judge then gave reasons for finding the Applicant guilty of the offence under s.112(2) Crimes Act 1900 contained in the second count (pages 13-15 of judgment):

The Applicant’s Grounds of Appeal

1. [42]

   The Applicant’s written submissions were in a narrative form which set out a number of criticisms of aspects of the trial and the findings of the trial Judge. The Crown written submissions grouped the Applicant’s grounds of appeal in a manner which is helpful for the purpose of consideration of the various grounds by this Court.

2. [43]

   The Court made clear to the Applicant at the hearing that the proceedings in this Court were not a retrial and that it was necessary for the Applicant to demonstrate error on the part of the trial Judge. The Applicant made further oral submissions to the Court after that aspect had been clarified with him.

3. [44]

   The Applicant’s grounds of appeal involve factual challenges to the trial Judge’s findings, so that if an extension of time was granted, leave to appeal would be required: s.5(1) Criminal Appeal Act 1912.

Ground 1 - The Reasons of the Trial Judge

1. [45]

   The Applicant’s submissions challenged the reasons of the trial Judge in a number of respects including the submission that his Honour expressed contradictory explanations with respect to a number of the findings.

2. [46]

   The Crown noted that Ground 1 appears to be a complaint about insufficiency of reasons given by the trial Judge for his verdicts in the trial. Put shortly, the Crown submitted that the issues in the trial were not overly complex and that his Honour’s reasons complied with the obligation under s.133(2) Criminal Procedure Act 1986 and contained all necessary findings for the purpose of the delivery of reasons for verdict in the circumstances of the case. The Crown submitted that this ground of appeal lacked merit so that leave to appeal under this ground should be refused.

3. [47]

   Reasons for verdict following a Judge-alone trial must be such as to enable a proper understanding to be gained of the basis upon which the decision has been reached. The trial Judge must expose his or her reasoning process by identifying the principles of law applied and the findings of fact made and the reasoning process by which those matters are linked: Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68 at [28]; AK v The Queen (2008) 232 CLR 438; [2008] HCA 8 at [85]. In determining an appeal against conviction from a trial by Judge alone, this Court should read the reasons of the trial Judge fairly and as a whole.

4. [48]

   This was a relatively short trial. Closing addresses were made by counsel on 29 June 2017 and his Honour gave judgment setting out his reasons for the verdicts returned on the following day. As the extracts from his Honour’s judgment set out earlier indicate, the central issue at the trial related to the credibility and reliability of the complainant. His Honour set out in some detail the submissions made on those issues and the findings made by the Court after his Honour had an opportunity to observe the complainant giving evidence.

5. [49]

   His Honour considered each count separately, returning verdicts of not guilty on Count 1 and Count 3 and verdicts of guilty on Count 2 and the statutory alternative offence under s.61I(1) Crimes Act 1900 available with respect to Count 3. His Honour’s reasons for reaching these verdicts were set out succinctly in the judgment on conviction.

6. [50]

   I am well satisfied that his Honour delivered reasons in accordance with the requirements under s.133(2) Criminal Procedure Act 1986 and the general law. There was no inconsistency in his Honour’s reasoning. The reasons made clear why the trial Judge was finding the Applicant not guilty on Count 3, but guilty of the statutory alternative offence concerning that charge.

7. [51]

   In my view, this ground lacks merit.

Grounds 2-4 - Challenges to Findings Concerning the Credibility and Reliability of the Complainant

1. [52]

   In his written submissions, the Applicant repeated arguments advanced at the trial with respect to the credibility and reliability of the complainant. It was submitted that the findings made by the trial Judge in this respect ought not to have been made so that erro r is demonstrated in this respect. The Applicant contended that there was “confabulation” on the part of the complainant and that the trial Judge had erred in his assessment of her evidence.

2. [53]

   The Crown approached these grounds of appeal upon the basis that particular conclusions reached by the trial Judge were challenged as well as an overall argument that the verdicts of guilty were unreasonable or contrary to the evidence. The Court was invited to make its own independent assessment as to the sufficiency and quality of the evidence in accordance with well-known principles concerning such a ground of appeal.

3. [54]

   The Crown submitted that the findings made with respect to the credibility and reliability of the complainant were well open to the trial Judge.

4. [55]

   To the extent that one submission of the Applicant sought to rely upon what was said to be new evidence from Sandra Young, the Crown noted that such evidence is not admissible ordinarily on an appeal against conviction to this Court. In any event, the Crown submitted that the very little detail provided about this proposed new evidence indicated that it was (at best) an attempt to challenge the credibility of the complainant based upon the opinion of another person. Beyond that, the Crown pointed to other features of the evidence in support of the submission that there was no merit in Grounds 2, 3 and 4.

5. [56]

   In accordance with the approach suggested by the Crown, it is appropriate to consider these grounds of appeal together as being particulars of an overall submission that the verdicts of guilty are unreasonable or cannot be supported by the evidence. The question for this Court is whether the Court thinks that, upon the whole of the evidence, it was open to the trial Judge (as the tribunal of fact) to be satisfied beyond reasonable doubt that the Applicant was guilty: Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 12 at [12]; The Queen v Baden-Clay (2016) 258 CLR 38; [2016] HCA 35 at [66].

6. [57]

   With respect to the Applicant’s submission that there were no signs of a struggle or forms of violence and that this bore upon the question of consent, it is necessary to keep in mind that (on the Crown case) the complainant was a 78-year old woman awoken in her bedroom in the early hours of the morning by the presence of the 27-year old naked Applicant. Substantial physical violence was not required and was not alleged by the complainant although there was some force used on the complainant’s account.

7. [58]

   Although the trial Judge was not satisfied beyond reasonable doubt that the circumstance of aggravation (actual bodily harm) was established, this finding was not inconsistent with his Honour’s other findings with respect to the reliability and truthfulness of the complainant’s account. Any inconsistencies in the complainant’s evidence were explored in cross-examination by experienced trial counsel and his Honour had regard to those in reaching verdicts in the matter. It has not been demonstrated that the findings made by the trial Judge were not open in the circumstances of this case.

8. [59]

   The Applicant’s suggestion that there was new evidence from a witness, Sandra Young, does not advance the Applicant’s case in this Court. The only material in support of this argument was the Applicant’s assertion in written submissions that there was such material. In any event, taken at its highest, it appears to involve a comment made by Ms Young about the complainant’s character. This aspect does not advance the Applicant’s case in this Court.

9. [60]

   The Applicant submitted that evidence of his left palm print on the outside handrail of the balcony near the kitchen window (Exhibit Q) did not advance the Crown case about the alleged mode of entry on the night in question. The Crown had not submitted to the contrary in closing address, with it being noted that there was evidence that the Applicant had been over that balcony railing on at least one other occasion. The trial Judge made no reference to this evidence in his judgment, but this is unremarkable given the approach taken to this issue in the trial. I do not think that the trial Judge’s approach to this part of the evidence assists the Applicant in this Court.

10. [61]

    The Applicant submits that the account of events given by him in his recorded interview with police should have been accepted by the trial Judge. The Applicant did not give evidence at the trial, but this interview formed part of the evidence tendered by the Crown. It was open to the trial Judge not to accept the Applicant’s exculpatory account. The trial Judge directed himself correctly that it was for the Crown to exclude the Applicant’s version of events as a reasonable possibility. In his judgment, the trial Judge set out carefully his reasons for accepting the complainant’s account. It was not necessary for the trial Judge to say any more than he did in the judgment with respect to the Applicant’s account to police in the recorded interview.

11. [62]

    I have considered the matters complained of in Grounds 2, 3 and 4 and the Applicant’s submissions and the submissions of the Crown, together with the evidence adduced at the trial and the judgment of the trial Judge. The Applicant has not demonstrated any error with respect to the particular factual areas touched upon in these grounds.

12. [63]

    Further, applying the relevant principles with respect to a ground asserting that a verdict of guilty was unreasonable or not supported by the evidence, I am well satisfied that it was open to the trial Judge to find the Applicant guilty of the two offences of which he was convicted. The trial Judge had the significant advantage of seeing the complainant give evidence at the trial. The complainant made a prompt complaint and report to police concerning these events. The discovery of the complainant’s earrings in the Applicant’s bedroom provided support for the Crown case. The Applicant’s account in his recorded interview with police was implausible in a number of respects.

13. [64]

    Each of Grounds 2, 3 and 4 should be rejected.

Ground 5 - Claim of Inconsistent Verdicts

1. [65]

   The Applicant complains under this ground that the trial Judge acquitted him with respect to Count 3, but nevertheless found him guilty of the statutory alternative offence under s.61I(1) Crimes Act 1900.

2. [66]

   The Crown submitted that it was open to the trial Judge to find the Applicant guilty of the alternative offence and that the acquittal on Count 3 did not give rise to any arguable basis to conclude that there was some inconsistency in these decisions.

3. [67]

   A statutory alternative verdict of guilty of an offence under s.61I was available if the trial Judge was not satisfied of the Applicant’s guilt on the s.61J Crimes Act 1900 offence contained in Count 3. The Crown had relied upon the statutory alternative at the trial in the event that the Court was not satisfied beyond reasonable doubt with respect to Count 3.

4. [68]

   The trial Judge made clear his reasons for finding the Applicant not guilty on the s.61J(1) count. His Honour was not satisfied to the criminal standard that the Crown had proved reckless infliction of actual bodily harm. His Honour made clear, however, that the other elements of the s.61J(1) offence were proved to the criminal standard which allowed the Court to return a verdict of guilty to the alternative offence.

5. [69]

   As noted earlier with respect to the first ground of appeal, there is no inconsistency in this reasoning or the conclusion reach by the trial Judge. It was a perfectly orthodox approach in the circumstances of this trial. His Honour’s conclusion with respect to the actual bodily harm issue did not require an adverse conclusion with respect to the complainant’s credibility and reliability and the elements of an offence under s.61I(1) Crimes Act 1900.

6. [70]

   No error has been demonstrated under the fifth ground of appeal.

A Passing Challenge on Sentence

1. [71]

   No ground of appeal was contained in the Applicant’s Notice of Application for Leave to Appeal filed on 21 December 2018 challenging sentence. However, the Applicant had ticked a box on the front of that document indicating that he appealed against conviction and sentence although no ground of appeal was formulated concerning sentence. The Applicant made clear in his submissions that the reference to “sentence” in Ground 1 was intended to be a reference to the trial Judge’s judgment on conviction.

2. [72]

   The written submissions of the Applicant, however, asserted at one point that he would like comparative sentences with respect to other persons to be taken into account as part of an apparent claim that his sentences were in some way erroneous or excessive. The Applicant did not nominate any other cases for the purpose of comparison.

3. [73]

   The Crown approached this submission upon the basis that it appeared to be a challenge to sentence so that some response by the Crown was appropriate. The Crown observed that no reference had been made by the Applicant to any suggested comparable cases and submitted, in any event, that the sentences imposed by the trial Judge were open in this case and disclosed no error.

4. [74]

   As the Applicant is unrepresented, it is appropriate to deal briefly with his incidental challenge to the sentences.

5. [75]

   His Honour found that the s.61I(1) offence was in the “lower mid range” and that the s.112(2) offence was at the “lower end of the range”. These findings were open to the sentencing Judge. His Honour directed that the sentences be served as entirely concurrent sentences and this conclusion favoured the Applicant. Using the maximum sentence and standard non-parole period for each offence as guideposts on sentence, and given the other findings made by the sentencing Judge (including a finding that the Applicant did not have good prospects of rehabilitation), the sentences imposed for these offences were open to the sentencing Judge in this case and do not disclose error.

6. [76]

   To the extent that the Applicant’s submissions involve an incidental complaint concerning the sentences, I conclude that there is no merit in any challenge to sentence.

Conclusion

1. [77]

   As there is no merit in the Applicant’s challenges to conviction and sentence, I am satisfied that no useful purpose would be served by granting an extension of time in this case. It follows that the interests of justice do not warrant an extension of time for the Applicant to seek leave to appeal against conviction and sentence.

2. [78]

   I propose that the application for an extension of time within which to seek leave to appeal be refused.

3. [79]

   PRICE J: I agree with Johnson J.

4. [80]

   LONERGAN J: I agree with Johnson J.