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Court of Criminal Appeal 15 August 2000

Regina v Upton

[2000] NSWCCA 305

Also reported as 116 A Crim R 298
Sexual offences
CRIMINAL LAW AND PROCEDURE SEXUAL INTERCOURSE WITHOUT CONSENT INCONSISTENCY OF VERDICTS CIRCUMSTANTIAL CASE CHALLENGE TO ADEQUACY OF CHARGE TO JURY

Citation: Regina v Upton [2000] NSWCCA 305
Court: Court of Criminal Appeal, New South Wales
Date: 15 August 2000
Judge(s): Spigelman CJ, Grove J, Kirby J

Background

The appellant was convicted in the Sydney District Court of sexual intercourse without consent following a trial before Sides DCJ. The incident occurred in September 1997 at Thredbo Village, where the appellant and the complainant, a 26-year-old Austrian teacher, shared a double bed at a ski lodge. The complainant's next memory after socialising with a group at the lodge that evening was waking the following morning, partially undressed, having no recollection of any sexual activity. The appellant admitted intercourse had taken place but maintained it was consensual.

The Crown case was, in significant part, a circumstantial one. Blood analysis taken after the complainant attended Cooma Hospital detected the drug Temazepam in her system, which a pharmacologist gave evidence could impair memory and consciousness. The jury returned a guilty verdict on the count of sexual intercourse without consent but acquitted the appellant on a second count of administering a stupefying drug to enable the commission of an offence.

The appellant sought leave to appeal against both conviction and sentence. Leave to appeal against sentence was granted, but both appeals were ultimately dismissed.

  • Whether the trial judge erred in directing the jury that uncontradicted expert evidence about the combined effect of Temazepam and alcohol was inconsistent with the appellant's assertion that the complainant was awake after they returned to the room
  • Whether the trial judge failed to adequately direct the jury to scrutinise the complainant's evidence with care, particularly regarding her claimed lack of memory of the intercourse
  • Whether the conviction on count one was logically inconsistent with the acquittal on count two (the drug administration charge)
  • Whether the evidence was, in any case, sufficient to support the conviction on count one
  • Whether the sentence of five years penal servitude was manifestly excessive

Decision

Ground 1: Jury direction on expert evidence. The Court found no error in the trial judge's direction regarding Dr Perl's pharmacological evidence. The direction appropriately reflected uncontradicted expert evidence about how Temazepam, combined with alcohol, could affect a person's level of consciousness and memory. No ground for complaint was established.

Ground 2: Direction on complainant credibility. The Court rejected the submission that the trial judge failed to adequately direct the jury on the need to scrutinise the complainant's evidence. The charge to the jury was found to be sufficient in the circumstances of the trial.

Ground 3(i): Inconsistency of verdicts. The Court found no fatal inconsistency between the guilty verdict on count one and the acquittal on count two. The jury was entitled to conclude that intercourse without consent occurred without necessarily being satisfied beyond reasonable doubt that the appellant had administered the drug. The two verdicts were not logically incompatible.

Ground 3(ii): Sufficiency of evidence. The Court was unpersuaded that the verdict was unreliable or unsupported by the evidence. Witnesses independent of both parties had observed the complainant in a state of near-collapse before the relevant period, which sat in stark contrast to the appellant's account of her shortly thereafter engaging in vigorous consensual intercourse. The Court held it was plainly open to the jury to conclude the complainant had not consented. On sentence, the Court found the five-year term sat within the upper third of comparable cases but remained within the proper exercise of judicial discretion, and no error of principle had been conceded or demonstrated.

Orders Made

  • Appeal against conviction dismissed
  • Leave to appeal against sentence granted
  • Appeal against sentence dismissed

Key Takeaways

  • An acquittal on a charge of administering a stupefying drug does not automatically render a conviction for sexual intercourse without consent inconsistent, where separate evidence supports the latter verdict independently of the drug allegation.
  • Sufficient evidence existed to support the conviction even in the absence of direct evidence of non-consent, where the circumstantial case included independent witness observations sharply at odds with the appellant's account.
  • A trial judge's direction that uncontradicted expert evidence bears on a factual question (here, the complainant's state of consciousness) does not constitute error where the direction faithfully reflects the expert testimony.
  • In dismissing the sentence appeal, the Court of Criminal Appeal confirmed that a sentence falling within the upper third of a statistical distribution of comparable cases is not, without more, manifestly excessive.
  • No special credibility warning regarding a complainant's lack of memory was required in the circumstances; the adequacy of jury directions is assessed in the context of the whole charge and the issues actually raised at trial.

Legislation and Cases Referenced

Cases cited:
- R v Murray (1987) 11 NSWLR 12
- R v V (1998) 100 A Crim R 488
- R v Davis [1999] NSWCCA 15
- Shepherd v The Queen (1990) 170 CLR 573
- MacKenzie v The Queen (1996) 190 CLR 348