Jeffreys v R

1. [1]

   HOEBEN CJ AT CL: I agree with Davies J

2. [2]

   R A HULME J: I agree with the orders proposed by Davies J for the reasons his Honour provides.

3. [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. [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:

5. [5]

   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:

6. [6]

   A woman who regarded the complainant as a niece said that the complaint to her included:

7. [7]

   The doctor who examined the complainant at the hospital recorded that the complainant said she confronted her uncle and said:

8. [8]

   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.

9. [9]

   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.

10. [10]

    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.

11. [11]

    These matters, combined with those that are discussed by Davies J, rendered a verdict of guilt quite unsurprising.

12. [12]

    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.

13. [13]

    He now appeals on the following two grounds:

14. [14]

    A third “ground” was identified in these terms:

15. [15]

    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.

16. [16]

    It is convenient to consider first the ground concerned with the summing-up for reasons which follow.

Ground 2: Unfair summing up

1. [17]

   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. [18]

   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. [19]

   Reference was made to the following passages:

4. [20]

   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.

5. [21]

   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.

6. [22]

   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.

7. [23]

   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:

8. [24]

   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.

9. [25]

   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.

10. [26]

    I would reject this ground.

Ground 1: Unreasonable verdict

1. [27]

   The principles concerning this ground were recently discussed by this Court in W v R [2014] NSWCCA 110 as follows:

2. [28]

   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.

3. [29]

   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.

4. [30]

   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:

5. [31]

   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.

6. [32]

   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.

7. [33]

   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.

8. [34]

   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.

9. [35]

   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.

10. [36]

    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.

11. [37]

    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.

12. [38]

    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.

13. [39]

    I would reject this ground.

14. [40]

    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.

15. [41]

    I propose the following orders: