ED v The Queen

• Jurisdiction: Australian Capital Territory
• Court: Court of Appeal of ACT
• Judge: Murrell CJ,Mossop,Bromwich JJ
• Judgment Date: 17 May 2019
• Docket Number: File Number: ACTCA 38 of 2018
• Date: 17 May 2019

[2019] ACTCA 10

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL

Before:

Murrell CJ, Mossop and Bromwich JJ

File Number: ACTCA 38 of 2018

ED

(Appellant)

and

The Queen

(Respondent)

Representation:

Counsel

K Archer (Appellant)

P Dixon (Respondent)

Cases Cited:

BI v The Queen (No 2) [2018] ACTCA 11

Dickson v R [2017] NSWCCA 78; 94 NSWLR 476

Doney v The Queen (1990) 171 CLR 207

Hocking v Bell (1945) 71 CLR 430

Kaddour v R [2019] NSWCCA 90

Libke v The Queen [2007] HCA 30; 230 CLR 559

M v The Queen (1994) 181 CLR 487

MacKenzie v The Queen (1996) 190 CLR 348

MFA v The Queen [2002] HCA 53; 213 CLR 606

MG v R [2017] NSWCCA 14

The Queen v Baden-Clay [2016] HCA 35; 258 CLR 308

The Queen v BDH [2019] QCA 47

The Queen v Markuleski [2001] NSWCCA 290; 52 NSWLR 82

Roos v R [2019] NSWCCA 67

SKA v The Queen [2011] HCA 13; 243 CLR 400

TK v R [2009] NSWCCA 151; 74 NSWLR 299

Walker v R [2019] NSWCCA 4

APPEAL — CRIMINAL LAW — Appeal against conviction — whether jury verdict is unreasonable — where offender is found guilty on some counts and not guilty on others — different verdicts based on same evidence not inherently unreasonable — Court to have regard to evidence before jury in assessing doubt — where there is a logical explanation for the acquittals

Decision:

The appeal is dismissed. The verdicts on Counts 1, 4, 6 and 7 are confirmed.

THE COURT:

The Appeal

1 The appellant appealed against four jury verdicts of guilty on the ground that they were unreasonable or cannot be supported having regard to the evidence because of their inconsistency with three verdicts of not guilty that were returned by the same jury in relation to the same incident.

2 Between 4 and 9 July 2016, the appellant, who was then 18 years old, stayed in Canberra with J (his aunt) and her children (his cousins), including N, who was then 13 years old.

3 At the trial, the prosecution alleged that, during one incident on a night when the appellant was staying with J and her family, he committed seven acts of sexual misconduct towards N, a person then under the age of 16 years. The alleged acts were four acts of sexual intercourse (two acts of digital intercourse and two acts of anal intercourse), one act of attempted sexual intercourse (attempted penile-vaginal intercourse), and two acts of indecency (tongue kissing and touching the buttocks/breasts).

4 The jury found that the appellant was guilty of Counts 1, 4, 6 and 7 (the first sexual intercourse by digital penetration, attempted penile-vaginal intercourse, and both acts of indecency), but not guilty of Counts 2, 3 and 5 (a second digital penetration, anal penetration, and a resumption of anal penetration).

Evidence at Trial

5 N first met the appellant in the 2012–2013 Christmas holidays.

6 On one occasion before July 2016, the appellant stayed with N's family in Canberra, but nothing untoward occurred on that occasion.

7 N said that there had been a prior similar incident when she was staying with the appellant's family in Sydney. On that occasion, the appellant and N were in the same bed. N woke up to find the appellant very close to her and staring at her. He kissed her and she moved back. Then he grabbed her and held her so that she could not move. He put his hand down her pants, felt her genital area, and put two fingers inside her vagina. The incident lasted five to 10 minutes and ended when N said that she needed to go to the bathroom. N disclosed this incident of inappropriate “touching” to her best friend, T, in March or May 2016.

8 The prosecution relied on the Sydney incident to support alleged tendencies on the part of the appellant to have a sexual interest in N, and to act upon his sexual interest by engaging in sexual activity with her.

9 N's mother, J, gave evidence that when the appellant stayed at her house during the July 2016 school holidays, he often went to sleep on a mattress at the foot of N's bed.

10 J gave evidence that at about 9:30pm one evening she found the appellant and N under a doona on N's bed. She remonstrated with them and told the appellant to get out of the bed. In evidence, she said that she left the room but later returned to find them still in the bed. In her police statement, she had said that the appellant left the room when asked to do so.

11 Through the medium of the evidence in chief interview on 22 July 2016, at the trial N gave evidence of the subject incident, which she said had taken place in her bedroom in the first week of the July 2016 school holidays (5 to 9 July 2016). She said that the incident had occurred between 10pm and 3am while the DVD “Kill Bill” was playing.

12 In that interview, N's first description of the incident was as follows:

my cousin tried to have sex with me and I didn't want to. He — oh, that was the start I — to be honest, I didn't care, but when I realised it was disgusting and it was wrong, I told him to stop and get off me. And I said no … he kept trying to put his penis inside of me. And I tried to get him off and he just kept, like, trying to make me shush and saying it was okay and stuff like that. And then he started to, um, finger me. And I told him to stop it and I tried to take his hands away. And I told him … multiple times to get off me … it lasted with me telling him to get off me for quite some time. Probably half an hour … And that was it.

(Emphasis added.)

13 When asked to describe as much as she could, N said:

… he started to … kiss me and, um, make out with me. Then he put his hand down my pants and started to put his fingers up my vagina. And then I started to say no … And I tried to push him off me. Then he pulled my pants down and he told me to turn around, but I refused to, so he put — like, forced me to turn over. And then he, um, put his penis in my bum and it hurt a lot … I tried to get it out of me. Then he pulled it out and tried to put it in my vagina, but I kept trying to get his penis away from me. And he kept going, trying to get into my vagina, um, put his penis in front of me then, um, he kept — then after, trying to put it in, arm, again. And ended up I was really in pain … every so often he would pull it out, and then put his fingers inside of me and grope my bum and my breasts. And then I got really angry with him, arm, side pushed him off my bed …

(Emphasis added.)

14 As to the initial kissing, N said that when she was facing away from him, the appellant turned and held her head, and had his arm around her face. He started to kiss her lips and to put his tongue in her mouth. She tried to get away by moving her head. The tongue kissing made her feel sick ( Count 6, act of indecency).

15 N gave evidence that, while kissing her, the appellant put his hand down her pants and tried to put his fingers inside her vagina. She told him to stop, tried to push him off, and grabbed his left hand ( Count 1, sexual intercourse).

16 However, the appellant got hold of her and “put his hand back in” ( Count 2, sexual intercourse).

17 N gave evidence that the “kissing and fingering [in her vagina]” was “mostly at the start”.

18 N said that after the digital penetration, the appellant pulled her pants down and forced her to turn over onto her side while he lay behind her. He pulled her pyjama pants down and “grabbed his penis and tried to put it in my bottom”. When asked by the interviewing police officer to clarify whether the penis had gone “all the way inside [her] bum or just between [her] bum cheeks”, N said that it was “all inside of me, because it was really, really sore”. Her anal area felt like it was “ripping, but not ripping” and she felt sick, disgusted and objectified. In cross-examination, N said, “I do not recall saying how far it went [in]” and “I just remember the pain of it and it felt excruciating” ( Count 3, sexual intercourse).

19 N gave evidence that, on three occasions, she pushed the appellant off so his penis was no longer inside her, but he resumed his activities and “kept doing that in and out [of my bum]” ( Count 5, sexual intercourse).

20 On the third occasion when she pushed the appellant away, he desisted.

21 N said that, between the second and third occasions when she pushed him away from her anal area, the appellant “tried to put it in my vagina” ( Count 4, attempted sexual intercourse). He failed to do so because she resisted by holding her legs tightly together, but “he was trying to”.

22 N said that the appellant had “groped” her breasts and bum “every so often”. She also said that the “groping” occurred “the last time he was trying to get his penis into my vagina” ( Count 7, act of indecency).

23 N conceded that, because she was facing away, at no time did she see the appellant's penis. However, she said that, in the course of pushing the appellant away, when he was “taking [his penis] out of [her]” she felt his penis, “it was hard” and he had hair. She knew that his penis was inside her anus “because it was really really sore”. In the days following the incident, she did not report any pain in her rectum and the pain ceased after a while.

24 N said that the incident lasted about half an hour. She was very concerned about the appellant achieving penile-vaginal intercourse because she “knew that unprotected sex in my vagina, like, causes pregnancy”. However, she “[didn't] know much” about how pregnancy occurred. Between the incident and 22 July 2016, she experienced “shooting pain” and became concerned that she was pregnant. In cross-examination, N agreed that, despite concern that she expressed in July 2016 about pregnancy, based on the activities that had occurred she could not have been pregnant.

25 J gave evidence that on the day after she...