Citation: R v Wiggins, Scott Lyle [2001] NSWCCA 60 revised – 20/03/2001
Court: NSW Court of Criminal Appeal (District Court below)
Date: 15 March 2001
Judges: Mason P, Giles JA, Whealy J
Background
The appellant was convicted in the District Court of sexual intercourse without consent following events at a New Year's Eve party on 31 December 1998 to 1 January 1999. The complainant, who had been drinking heavily and had vomited, went to bed in a designated bedroom. It was common ground that penetration occurred. The central factual dispute was whether the complainant was asleep at the time.
The complainant gave evidence that she had no recollection of the intercourse itself, and only became aware of what had happened when the appellant's girlfriend entered the room and began screaming. The appellant, by contrast, gave evidence that the complainant was awake, behaved in a manner consistent with consent, and that he genuinely believed she was consenting.
The appellant did not challenge the conduct of the trial, the admission of evidence, or the directions given to the jury. His sole ground of appeal was that the jury's verdict was unreasonable having regard to the evidence.
Legal Issues
- Whether the jury's guilty verdict was unreasonable within the meaning of the applicable High Court authorities, given the evidence adduced at trial, including the complainant's account, the evidence of two witnesses named in the grounds of appeal, and the appellant's own evidence.
Decision
Giles JA (with whom Mason P and Whealy J agreed) applied the test from M v The Queen (1994) 181 CLR 487 and related High Court authorities. Under that test, an appellate court must itself assess the evidence and determine whether it was open to the jury to be satisfied of guilt beyond reasonable doubt. The Court conducted a detailed review of the evidence rather than simply deferring to the jury's assessment.
The Court identified several matters that supported the jury's verdict. The complainant's account was that she was unaware of the intercourse until woken by screaming, and she remained dressed throughout in her swimwear. The jury was entitled to draw an inference that she would not have engaged in consensual intercourse while menstruating and wearing a tampon. Her police statement, made shortly after the events, was broadly consistent with her trial evidence.
Critically, the appellant's own earlier statements undermined his trial account. When his girlfriend directly confronted him with the proposition that the complainant had been asleep, his response was "I don't know" rather than an immediate denial. The Court observed that this response carried considerable weight, particularly given that his account to his girlfriend on 2 January 1999 differed materially from his trial evidence, including by omitting what had occurred before the incident.
The trial judge had made observations about two witnesses that appeared, on one reading, to favour the appellant. However, the Court referred to R v Carbone and noted that while careful attention should be given to a trial judge's views on guilt or innocence, the Court is not bound by them. The trial judge's observation here was qualified and directed to two witnesses only, and the jury was entitled to reach a different credibility assessment. The Court concluded the verdict was not unreasonable and dismissed the appeal.
Orders Made
- Appeal dismissed.
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that a verdict is not unreasonable merely because an appellate court might have assessed the evidence differently from the jury, provided it was open to the jury to be satisfied of guilt beyond reasonable doubt.
- A defendant's failure to immediately deny a central factual allegation when directly confronted, particularly one as serious as having intercourse with a sleeping person, is capable of being given significant weight by a jury.
- Prior inconsistent accounts given by a defendant to third parties shortly after the alleged offence, where those accounts differ materially from trial evidence, are relevant to the jury's assessment of credibility.
- Under R v Carbone, an appellate court should give careful attention to a trial judge's views on witness credibility but is not bound by them, as to hold otherwise would risk compromising trial by jury.
- Circumstantial details, including a complainant's state of dress, physical condition, and the circumstances in which she became aware of the offence, can collectively support an inference of absence of consent even without direct evidence of the complainant's awareness at the time.
Legislation and Cases Referenced
Cases:
- M v The Queen (1994) 181 CLR 487
- Jones v The Queen (1997) 191 CLR 439
- Fleming v The Queen (1998) 197 CLR 250
- R v Carbone [2000] NSWCCA 387
Legislation: No specific legislation cited in the provided text.