PARTIES: TYSON, Jason Mathew
TITLE OF COURT: COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION: APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION
FILE NO: CA 17 of 2004 (20317992)
DELIVERED: 8 July 2005
HEARING DATE: 22 June 2005
JUDGMENT OF: MILDREN, RILEY & SOUTHWOOD JJ
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – WHETHER JURY VERDICT BAD FOR UNCERTAINTY?
Three incidents of sexual intercourse charged as one count of sexual intercourse without consent – was the appellant found to have committed each of the three separate acts of sexual intercourse without consent, or just one or possibly two of those acts? – conviction not free from duplicity.
Criminal Code (NT), s 192(3)
Johnson v Miller (1937) 59 CLR 467 at 497, applied.
S v The Queen (1989) 168 CLR 266 at 280, applied.
Hoessinger v R (1992) 62 A Crim R 146 at 151, applied.
Iannella v French (1968) 119 CLR 84, applied.
Lapthorne v R  WAR 207 at 211, applied.
SGT v The Queen  NTCCA 72, applied.
Khouzame & Saliba (1999) 108 A Crim R 170 at 178, applied.
Wilde v The Queen (1987-1988) 164 CLR 365 at 373, applied.
EVIDENCE – RELEVANCE
Domestic violence order – whether prejudicial weight exceeded probative value? – relevant as a background factor in the relationship between the appellant and complainant.
Appellant: L. Carter
Respondent: D. Lewis
Appellant: Katherine Regional Aboriginal Legal Aid Service
Respondent: Office of the Director of Public Prosecutions
Judgment category classification: B
Judgment ID Number: ril0516
Number of pages: 14
IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
Jason Mathew Tyson v The Queen  NTCCA 9
No CA 17 of 2004 (20317992)
TYSON, Jason Mathew
CORAM: MILDREN, RILEY & SOUTHWOOD JJ
REASONS FOR JUDGMENT
(Delivered 8 July 2005)
 I agree with Riley J.
 On 9 September 2004, following a trial by jury, the appellant was convicted of the offence of having sexual intercourse with his ex-wife without her consent contrary to s 192(3) of the Criminal Code. He now challenges that conviction on four grounds. It is convenient to deal with the fourth of those grounds first as it was to that ground that the attention of the parties was primarily directed.
 The rule against duplicity operates to ensure that a person charged with an offence fully understands and appreciates the case to be met. “A defendant should, at the very outset of the trial, know what is the specific offence which is being alleged against him”: Johnson v Miller (1937) 59 CLR 467 at 497. To this end the rule requires that one count on an indictment should not charge the accused person with having committed two or more separate offences: S v The Queen (1989) 168 CLR 266 at 280. Similarly it is not permissible for the Crown to charge one offence only and rely upon particulars that are duplicitous and hence allege more than one offence: Hoessinger v R (1992) 62 A Crim R 146 at 151. It is also fundamental that any conviction should be free from duplicity: Iannella v French (1968) 119 CLR 84; Hoessinger v R (supra at 149). Even if an indictment is not bad for duplicity on its face, a conviction based upon that indictment which is duplicitous is bad: R v Hoessinger (supra at 159).
 The appellant asserts that in this case the verdict is bad for uncertainty and, as a consequence, there has been a substantial miscarriage of justice. Whilst the indictment alleged one count of sexual intercourse without consent, the case for the Crown was that there were in fact three such incidents of sexual intercourse upon which the Crown relied. The appellant submitted that, in the circumstances, it was not possible to know whether the jury, in reaching its verdict, unanimously agreed as to the same alleged act or acts of intercourse without consent. There was a real possibility that the appellant was convicted in circumstances where the jury were not unanimous as to any of the three acts being without consent.
 The case for the Crown was that the complainant and the appellant had been in a relationship for approximately two years but the relationship had ended approximately one year before the alleged offence. There was one child of the relationship. On 18 November 2002, the complainant obtained a restraining order against the appellant pursuant to the terms of the Domestic Violence Act. The appellant consented to the granting of the order. The order remained in force on the relevant dates.
 On 7 September 2003 the complainant was in Katherine. She saw the appellant in the street and he asked her for a cigarette. She continued walking and came across members of her family. They went into a bottleshop and she sat across the road waiting for them. At this time the appellant again approached her and he asked if she would live with him again and she said she would not. She got up and walked back to where her relations and friends were. They were heading down to the Katherine River and as she was walking along with the group the appellant appeared beside her. She was carrying a cask of moselle and he grabbed it from her. She told him to leave “but he didn’t want to listen”. The group went down to the river and sat around, drinking. The appellant joined the group. He was a bit drunk. Eventually, when the group got up to leave, the complainant was having her last drink and she was a bit behind. The appellant remained nearby and continued to ask her to come back and live with him. She got up to leave and he followed her. He then asked if she would have sex with him and she said no. She told him she had syphilis in order to deter him. He then grabbed her by the shoulders and pulled her down. He removed her clothes, held her down and had penile/vaginal intercourse with her which continued until he ejaculated. That was the first act of sexual intercourse. He then lay on top of her for five to ten minutes. He was biting her on the cheek and shoulder. She struggled and he tried to strangle her with his hands. He bit her on the lips and on the top of the breasts. He then had penile/vaginal intercourse with her until he again ejaculated. This was the second act of sexual intercourse.
 The appellant then told the complainant to put her clothes on and they each dressed themselves. They moved to a nearby location and he told her to lay down. He pushed her down. He then took off her shorts and her pants. She tried to kick him away but he was too strong. He then had penile/vaginal intercourse with her. This was the third act of sexual penetration of the complainant. When that was completed they again dressed and walked towards the town. The complainant walked behind the appellant. After some time she saw a police car and approached the police officers for assistance.
 The three incidents to which I have referred were said by the Crown to constitute a single course of conduct comprising three separate sexual penetrations of the complainant and for that reason they became the subject of one count on the indictment. The form of the indictment followed discussion and apparent agreement between the prosecutor and counsel for the defence. At the time of trial no objection was taken to the form of the indictment.
 There was no issue taken by the appellant with the allegation that sexual intercourse had occurred on three occasions. The only issue in the proceedings before the jury was whether there was consent on the part of the complainant. In his record of interview, which was received in evidence, the appellant said that the complainant gave him permission to have sexual intercourse with her. Her evidence was to the contrary.
 The submission of the Crown was that the three separate acts should be regarded as part of the one course of conduct. It was pointed out that the events all took place in the one general location, they took place over a short period of time and they involved the same two people, being the appellant and the complainant. This was, it was said, a single prolonged assault where consent was the only issue. The respondent submitted to this Court that the facts of the case were not amenable to the jury reaching different conclusions regarding consent at different stages of the single prolonged attack. There was a lack of consent throughout the episode. It was submitted that, in the circumstances, it was appropriate to bring a single charge notwithstanding that the activity of which complaint was made involved more than one act of sexual intercourse.
 Unfortunately, the way in which the Crown presented the case to the jury and, more importantly, the remarks of the trial judge to the jury, do not support the submission that the three separate incidents were all part of the one course of conduct in relation to which there was no prospect of the jury reaching different conclusions as to the existence of consent at different stages.
 In his closing address, counsel for the Crown advised the jury that “the sole issue” in the trial was whether or not the complainant consented to sexual intercourse. He went on to say:
“Did the sex on any one or all of those three occasions take place without her consent and at a time when (the appellant) knew that she was not consenting or knew that she may not be consenting and proceeded regardless. So I will just repeat that because that’s the issue for you. Did the sex take place at any one or all of those three occasions without her consent and at a time when (the appellant) knew she was not consenting or knew that she may not be consenting and proceeded regardless.”
 The summing up of the learned trial judge was to similar effect. He informed the jury that this was “a case where a woman has given evidence that she was raped three times”. He later distinguished between the acts of sexual intercourse by placing emphasis on the third act. He said:
“The Crown also rely on the third act of intercourse in particular, where you will recall that on (the complainant’s) account, she was holding her shirt to her face and her bleeding lip. The Crown says it is just preposterous to suggest that she was consenting to sexual intercourse in those circumstances.
There is one charge here of sexual intercourse without consent, not three. The Crown rely – and the Crown case is – that she did not consent to any of this, but I should remind you that if you find as a fact that some of these acts of intercourse took place with consent, it is always open for you to find that one of them took place without consent, and that will be sufficient for a conviction on count 1.”
 Contrary to the submission of the respondent, the jury could not have been left in any doubt that it was open to them to reach different conclusions regarding consent at different stages of the event. They were informed that they could find the appellant guilty even if some of the acts of sexual intercourse took place with consent.
 Further, the directions of the learned trial judge to the jury were defective in that the jury was not informed that to return a verdict of guilty they must be unanimous as to the occurrence of the particular act or acts of sexual intercourse without consent that provided the foundation for the verdict. In this matter there is a real possibility that the appellant was convicted in circumstances where the members of the jury were not unanimously agreed as to the act or acts which constituted the offence.
 It may be that some members of the jury made a finding beyond reasonable doubt that the appellant was guilty of the offence by reference to the circumstances of the first act of sexual intercourse, others may have reached that conclusion by reference to the circumstances of the second incident and yet others may have done so by reference to the circumstances of the third incident. Had the indictment alleged three separate offences based upon the three acts of sexual intercourse it may be that the jury would have been unable to unanimously agree on any one or more of them. In those circumstances the appellant would have been discharged.
 Further, the verdict of the jury invites speculation as to the basis of the finding of guilt in relation to count 1. Was the appellant found to have committed each of the three separate acts of sexual intercourse without consent or just one of those acts or possibly two of those acts? If one or two, then which act or acts?: Lapthorne v R  WAR 207 at 211; SGT v The Queen  NTCCA 72; Khouzame & Saliba (1999) 108 A Crim R 170 at 178.
 Where offences are alleged to have occurred in circumstances where the events involve a similarity of conduct, a proximity of time and place and identical participants, difficulty will arise in deciding whether it is possible to proceed with one count without infringing the rule against duplicity. In the case of a number of assaults committed on the same person in the prosecution of a similar purpose or at about the same time the provisions of s 310 of the Criminal Code may be called in aid. In other circumstances, as the authorities reveal, different approaches have been adopted in different cases. It is not always easy to reconcile the judicial views expressed on the topic. No uniformly accepted form of words has emerged to provide guidance to the prosecuting authorities or the courts. Until such a formula emerges it will always be a matter of fact and degree. The area of grey is substantial. However in this case I consider it to be clear that the indictment should not have charged a single count in relation to the three separate incidents. To do so was duplicitous. Even if that were not so, latent ambiguity emerged in the verdict of the jury. The resulting uncertainty goes to the core of the proceedings. They cannot be saved by application of the proviso: Wilde v The Queen (1987-1988) 164 CLR 365 at 373. The conviction of the appellant in relation to count 1 is not free from duplicity and must be set aside.
Acquiescence by the appellant
 At the time of trial no exception was taken to the indictment by the appellant. Indeed the form of the indictment was settled following discussions between the prosecutor and counsel for the defence. The formulation was the agreed product of those discussions. Issue was first taken with the indictment and with the conviction when the case was considered by different counsel for the purposes of this appeal. However, as was pointed out by Kirby J in Walsh v Tattersall (1996) 188 CLR 77 at 109, there are many cases where the accused has been permitted to raise the point for the first time on appeal. See also Dawson and Toohey JJ at 81-82 where it was observed that failure to take the objection at trial does not preclude the appellant from raising it on appeal. The availability of the challenge to the appellant in the present case was not contested.
 The appeal must be allowed and the matter referred for retrial.
The domestic violence order
 In other grounds of appeal the appellant complained that there was a substantial miscarriage of justice in these proceedings by reason of the admission into evidence of the domestic violence order dated 18 November 2002. During the course of the trial the jury twice asked questions regarding the reason for the domestic violence order and further complaint was made by the appellant that the learned trial judge erred by failing to discharge the jury on application by counsel for the appellant following those questions being asked.
 Prior to the commencement of the trial a voir dire had been conducted before the Chief Justice in the course of which the prosecutor indicated that he would seek to lead evidence of the existence of the domestic violence order. Defence counsel objected and the various submissions were aired. At the conclusion of the voir dire the Chief Justice did not make a ruling on the issue. When the matter came on for trial it was before a different judge. Before the trial commenced discussions took place between counsel and it was resolved that the domestic violence order would be tendered but, so far as possible, would be described as a restraining order in the course of proceedings. In those circumstances it was not necessary for the trial judge to make any ruling as to the admissibility of the document. It was received into evidence by consent.
 In the course of her evidence before the jury the complainant referred to her relationship with the appellant as having lasted for some two years. She said that when the parties separated she obtained a domestic violence order and a copy of the order was made an exhibit. As appears on the face of the document, the order was made with the consent of both parties. Notwithstanding the agreement of counsel to refer to the document as a restraining order, the witness described it as a domestic violence order.
 During the course of the evidence in chief of the complainant the trial judge received a note from the jury inquiring: “What was the domestic violence order for?” In accordance with the submission made by counsel for the appellant, and with the concurrence of counsel for the Crown, his Honour determined to say nothing in response to the question at that time. Later in the course of the trial the trial judge indicated to counsel that he had received another note from the jury in the following terms: “What was the restraining order for?” On that occasion counsel for the appellant made application to his Honour to discharge the jury because the jury was speculating about the order and reference to it was “totally prejudicial”. The application was refused with his Honour observing that any risk of prejudice could be allayed by a proper direction to the jury not to speculate about the circumstances of the order coming into being. His Honour noted that the order had been admitted into evidence without objection and that the domestic violence order itself was one made with the consent of the appellant.
 In his summing up to the jury the learned trial judge dealt with the matter as follows:
“During the course of the trial, I received some messages from you regarding this question of the domestic violence order and I want to say something about that. It has been called a domestic violence order. It has also, in the course of discussion, been called a restraining order. It is exhibit P1 and you will have it in the jury room to consider it and its terms.
It is very important that you understand what they are there for and how it is relevant in this case. The first thing to note about it is that it was an order of the court by consent, and is signed both by the accused and by (the complainant). You do not know the circumstances and no evidence has been led about the circumstances giving rise to that order.
It is very simple why there has been no evidence as to the circumstances in which that order was made, and the simple answer is it is not relevant. It has got nothing to do with this case as to why that order was made, by consent. What is relevant is that it was made. It is a background or is a factor in the relationship between these two people.
You know the evidence of their past relationship. The fact they had a child. The fact that they separated in 2002, maybe 12 months before the incident in question. You know from the record of interview, if you accept the accused’s evidence on this, that they had constant contact by phone. They used to phone each other, or he phoned her. You know that she apparently was quite happy, at least at the initial stages, down near the riverbank with her family, or members of her family, present, and he being present, albeit in breach of that order. You know they had contact – prior contact, over the child, which is quite natural, but it is a factor to be taken into account.
The existence of that order. It is most important that, two things: (1) you do not speculate as to why the order was made in the first place. As I said, it is completely irrelevant why. As a matter of law, I am directing you. You must not speculate about those reasons because they are not relevant to this case, and in particular that no adverse inference can be drawn against the accused as to his guilt, on the present charge, on account of that order being made. It has got nothing to do with the present charge. It is just merely one background circumstance – that you consider the relationship between these two people, at the time of the events in question.”
 Before this Court the appellant contended that the order should not have been admitted into evidence because it was not relevant to the issue in the trial, being whether sexual intercourse was consensual, and, in any event, its prejudicial weight exceeded its probative value. It was submitted that the jury could speculate as to why the domestic violence order was made and reason improperly towards the appellant’s guilt. The immediate response to that submission is that the order was admitted into evidence without objection. It is now too late to raise the objection. However, in my view, the order was relevant and should have been received into evidence. It was a significant background factor in the relationship between the appellant and the complainant. It served to define that relationship in a manner consistent with the evidence provided by the complainant. It provided a context for her observation that he was being friendly. It provided part of the explanation for the complainant not wanting the appellant to come with her to the riverbank and it lent support to her contention that she was telling him to go. It gave a context for her evidence that she hoped he would change. It was capable of supporting her evidence as to the state of the relationship.
 In my opinion the domestic violence order was admissible. The submission that the jury might engage in improper reasoning that the domestic violence order meant that the appellant was violent towards the complainant and he was therefore likely to have raped the complainant was met by the strong and appropriate warning provided by the learned trial judge. Whilst it may have been preferable for that warning to have been provided at an earlier stage of the proceedings, the fact is it was made, and clearly made, at a time shortly before the jury retired to consider its verdict. I find no error on the part of the learned trial judge.
State of mind
 The final ground of appeal was that the learned trial judge erred by misdirecting the jury as to the appellant’s required state of mind. Complaint was made that his Honour, in a redirection to the jury, had used language which was “apt to, unintentionally, lower the bar as to what the Crown had to prove”. The appellant acknowledged that the jury had previously been addressed in appropriate and formal terms in relation to this topic. The language complained of consisted of a passing remark made by his Honour in a redirection which, with respect, could not have had the effect suggested by the appellant. This ground of appeal is without foundation.
 The appeal on grounds 1, 2 and 3 should be dismissed. The appeal on ground 4 should be allowed and a new trial ordered.
 I concur with the reasons for decision of Riley J.