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Court of Criminal Appeal 12 December 2008

Mullins v R

[2008] NSWCCA 302

Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION SEXUAL ASSAULT GAPS IN COMPLAINANT’S RECOLLECTION

Citation: Mullins v R [2008] NSWCCA 302
Court: New South Wales Court of Criminal Appeal
Date: 12 December 2008
Judge(s): Hodgson JA; James J; Price J

Background

The appellant was convicted in the District Court of sexual assault following events at a Manly hotel in August 2004. The complainant had been socialising with friends and, after meeting the appellant's brother at a hotel, ended up in a hotel room where she fell asleep on a double bed. Sexual intercourse was not disputed. The only issues at trial were whether the complainant had consented and whether the appellant knew she had not consented, or was reckless as to that matter.

The complainant gave evidence that she had no memory of the appellant prior to waking to find him beside her with his penis inside her vagina. She immediately reacted verbally and physically, causing him to stop and withdraw. She later identified the appellant to the appellant's brother as the person who had raped her, and was found in a highly distressed state by her friends shortly afterward.

The defence case, supported by the evidence of the appellant's brother and a friend, was that the complainant had been awake and had herself initiated sexual contact with the appellant. The appellant, when spoken to by police, exercised his right to silence but made a single comment suggesting the complainant "must sleep with her eyes wide open." The jury returned a guilty verdict, and the appellant was sentenced to imprisonment before appealing to the Court of Criminal Appeal.

  • Whether it was open to the jury to be satisfied beyond reasonable doubt that the complainant did not consent to sexual intercourse with the appellant, given the gaps in her recollection of events that night.
  • Whether it was open to the jury to be satisfied beyond reasonable doubt that the appellant knew the complainant was not consenting, or was reckless as to whether she was consenting.

Decision

The Court of Criminal Appeal dismissed the appeal, with all three judges agreeing on the reasoning set out by Hodgson JA.

On the question of consent, Hodgson JA accepted that the complainant's patchy memory created some forensic difficulty. She had, for instance, no recollection of kissing the appellant's brother despite CCTV footage and her own acknowledgment that it occurred. However, the court found the jury was entitled to draw a meaningful distinction between those memory gaps and her evidence about the sexual intercourse with the appellant. The complainant acknowledged she had liked the brother and accepted the kiss had happened, but remained adamant she had never seen the appellant before and had gone to sleep before waking to find him engaged in sexual intercourse with her. The jury, having observed the complainant give evidence, could reasonably treat that distinction as significant and be satisfied beyond reasonable doubt that she was asleep when intercourse commenced and had not consented.

On the question of knowledge, the court held that an inference of knowledge of non-consent, or recklessness as to consent, was available from the very fact that the complainant was asleep when the sexual activity began. The court further noted that the appellant's own account, which depicted the complainant as the active initiator, was not an account of mistaken belief in consent but rather an assertion of actual, active consent. The jury was entitled to reject that account beyond reasonable doubt, and in doing so found nothing to support any basis for a genuine belief in consent.

Hodgson JA also observed, without it being necessary to the decision, that Daniel Mullins' original police statement to the effect that the complainant had fallen into a deep sleep before the appellant re-entered the room was admissible firsthand hearsay under s 66 of the Evidence Act 1995, having been made in September 2004 when the events were fresh in his memory.

Orders Made

  • Appeal against conviction dismissed.

Key Takeaways

  • A conviction for sexual assault can stand where the complainant has gaps in recollection, provided the jury has a rational basis to distinguish those gaps from the specific act in issue and is satisfied beyond reasonable doubt on the evidence as a whole.
  • Where a complainant was asleep at the commencement of sexual intercourse, the Court of Criminal Appeal confirmed that a jury may infer the accused knew the complainant was not consenting, or was reckless as to that matter, from that circumstance alone.
  • In dismissing the appeal, the court applied the principle from M v The Queen (1994) 181 CLR 487 that an appellate court will not substitute its own assessment of the evidence where a verdict was reasonably open to the jury.
  • A prior statement by a witness, made shortly after an event when the events were fresh in memory, may be admissible as firsthand hearsay under s 66 of the Evidence Act 1995, even if the witness later gives inconsistent evidence at trial.
  • Sufficient evidence existed to support both elements of the offence, consent and the accused's knowledge of non-consent, notwithstanding that the defence called witnesses who gave a conflicting account of the complainant's conduct on the night.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), s 66 (firsthand hearsay exception where events fresh in memory)
- Criminal Appeal Act 1912 (NSW), s 6(1)

Cases:
- M v The Queen (1994) 181 CLR 487 (High Court: test for unreasonable verdict on appeal)