Al-Rawi v The Queen

[2004] WASCA 58

AL-RAWI -v- THE QUEEN [2004] WASCA 58

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WASCA 58
Court:	COURT OF CRIMINAL APPEAL
Case No:	CCA:185/2003	Heard:	4 MARCH 2004
Coram:	STEYTLER J WHEELER J SIMMONDS J	Delivered:	8/04/04
No of pages:	15	Judgment Part:	1 of 1
Result:	Leave to appeal granted, Appeal dismissed
Category:	B
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Parties:	MARVIN NAMOU AL-RAWI THE QUEEN
Catchwords:	Criminal law and procedure Appeal against conviction Whether directions to jury adequate Turns on own facts
Legislation:	Nil
Case References:	Harris v Tippett (1811) 2 Camp 637; 170 ER 1277 Kurgiel v Mitsubishi Motors Australia Ltd (1990) 54 SASR 125 Burns v The Queen (1975) 132 CLR 258 R v Cheatley [1981] Tas R 123 Toohey v Metropolitan Police Commissioner [1965] AC 595

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : AL-RAWI -v- THE QUEEN [2004] WASCA 58 CORAM : STEYTLER J

WHEELER J
SIMMONDS J

HEARD : 4 MARCH 2004 DELIVERED : 8 APRIL 2004 FILE NO/S : CCA 185 of 2003 BETWEEN : MARVIN NAMOU AL-RAWI

Applicant

AND

THE QUEEN
Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : NISBET DCJ

File Number : IND 749 of 2002

Catchwords:

Criminal law and procedure - Appeal against conviction - Whether directions to jury adequate - Turns on own facts

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Legislation:

Nil

Result:

Leave to appeal granted

Appeal dismissed

Category: B

Representation:

Counsel:

Applicant : Mr D P A Moen
Respondent : Mr J Mactaggart

Solicitors:

Applicant : Melvyn Levitan
Respondent : State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Harris v Tippett (1811) 2 Camp 637; 170 ER 1277
Kurgiel v Mitsubishi Motors Australia Ltd (1990) 54 SASR 125

Case(s) also cited:

Burns v The Queen (1975) 132 CLR 258
R v Cheatley [1981] Tas R 123
Toohey v Metropolitan Police Commissioner [1965] AC 595


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1 STEYTLER J: The applicant was convicted by a jury of one count of sexual penetration without consent. He seeks leave to appeal against his conviction.

The evidence at trial

2 It was common cause at the trial that the applicant met the complainant on 11 September 2001 at a tertiary institute which both attended. Later that day the two arranged that the complainant would have dinner with the applicant at his home that evening. She did so and the two of them thereafter watched a video. The complainant was suffering from the effects of influenza and had earlier taken some cold and flu tablets. During the course of the evening she drank two glasses of whisky and had started to drink a third when she began to feel ill and went to the bathroom and vomited.

3 In her evidence at the trial the complainant said that she could not remember anything after that stage until she woke up, during the course of the night, to find the applicant on top of her. She said that she was then lying on the mattress which had been in the living room of his house. She was on her back and the applicant was having sex with her. She said that she felt powerless to talk but heard the applicant say, "It's okay. It's okay. I'm wearing a condom." The intercourse caused her to feel some pain in her vagina. She said that she remained conscious for about four or five seconds and then again lapsed into unconsciousness. She said that when she woke up in the morning she was completely naked and the applicant was lying next to her stroking her thigh. She then went home, before crossing the street to a telephone box in order to phone the Sexual Assault Referral Centre.

4 The complainant was physically examined at the Sexual Assault Referral Centre by a doctor, Dr Joanne Payne. She also there spoke to a counsellor, Ms Kerrelee Lummis. In her evidence at the trial Dr Payne said that the complainant told her that "she feared she might have been sexually assaulted". She said that the complainant said to her that she had taken some cold and flu tablets on the previous day and had had a couple of Scotches which "tasted rather strong". The complainant also said that she vaguely remembered leaning over the bathroom sink and "coughing" but could remember nothing after about 10.30 pm until she woke up in the morning without her clothes on. She said that she had "a vague recollection of … [the applicant] lying on top of her 'and hurting'". Dr Payne also said that the complainant told her that her front passage hurt when she moved and that she had noticed blood on the lateral aspect

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of the left upper leg. She said that she had started her period three days before.

5 In the course of her examination Dr Payne found that the complainant's vagina was very tender and this prevented a full vaginal examination. However, Dr Payne noted that there was redness all around the entrance to the complainant's vagina and that there was a red oval-shaped abrasion to the inner labia minora and a four-centimetre red linear superficial interrupted abrasion to the right side of the labia. She concluded that the type of contact that would be expected to have caused the abrasions would have been penetration by a blunt object that could have been a penis.

6 In the course of cross-examination Dr Payne said that the complainant had told her that she did not know for sure whether or not the applicant had had sexual intercourse with her but supposed that it had happened, although Dr Payne also said that the complainant had told her that the applicant had said that he used a condom.

7 In her evidence, Ms Lummis said that, when the complainant telephoned the Sexual Assault Referral Centre, she (Ms Lummis) had spoken to her on the telephone. She said that the complainant told her that she believed that she had been sexually assaulted the night before. Ms Lummis also said, when asked what it was that the complainant had said to her when she arrived at the Centre, that the complainant had said to her that:

"… She went to … [the applicant's] house for dinner and he provided a meal and I believe he made her an alcoholic drink. They … had food and watched a video, and then the recollection of the events that had happened after that I think - the next thing she remembers is waking up next to him the next morning, naked, and I remember her saying that he said to her, 'Don't worry, I used a condom.' At that point she was - she got very upset, very frightened, realised that someone [sic] had happened to her sexually during the evening which she didn't have no [sic] recollection of or had given consent to and left his apartment very quickly and not long after leaving rang us."

8 When asked whether or not the complainant had detailed for her the circumstances in which the applicant had said that he had been wearing a condom, Ms Lummis responded by saying:

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"I understand he said that at some time after she had woken up. He said, 'Don't worry, I used a condom,' which gave her the impression that he must have had sex with her but she didn't remember the act of the sex because she doesn't remember what happened after she had the drink, the alcoholic drink. I think she had one or two drinks from memory, it might've been more than one, yeah. She also had a cold, I know she was on some cold medication, something like Codril that day."

9 In a statement which had been prepared in advance of the trial, Ms Lummis had said that, when the complainant had first telephoned the Centre, she had said to Ms Lummis, "I think I may have been sexually assaulted."

10 Evidence was also led at the trial from a forensic scientist, Ms Anna-Marie Furmedge. She gave evidence to the effect that she had recovered DNA samples from the outside of the complainant's underpants and that these showed a mixed profile, indicating that they came from two people. She said that it was "at least 10 billion times more likely" that the DNA came from the applicant and the complainant than that it came from the complainant and an unknown person.

11 The prosecution also led evidence at the trial from a friend of the applicant, Mr Hamzer Al Amer. He visited the applicant's home on the evening of 11 September 2001 at about 9.30 pm or 10 pm. He was there only very briefly. He said that he saw the complainant "sitting in the left-hand side of unit [sic] in the lounge room", wearing a black top and with a blanket over her legs.

12 Finally, two police officers gave evidence on behalf of the prosecution. The first of these was Constable Angela Bancilhon. She said that a complaint of sexual assault was made to her by the complainant on 13 September 2001. She also gave evidence of a videotaped interview which took place with the applicant and of a search which she and other police officers conducted at the applicant's home, the bulk of which was videotaped. No objection was made to the admission of the videotape of the search, notwithstanding that it revealed empty alcohol bottles, a large number of condoms and a number of explicitly sexual magazines located in the applicant's home. There was also some exploration, in the course of the video, of the applicant's recent sexual history. This was done by way of questions put to the applicant, all of which he appeared to answer frankly. After the video had been shown to the jury, the then counsel for the applicant said that, while he had not objected to the video (seemingly

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because he considered that it was strong evidence of the openness of the applicant in respect of matters raised with him), he proposed, in due course, to make critical observations to the jury about the conduct of the police during the search, particularly as regards their focus upon irrelevant or prejudicial material.

13 Constable Bancilhon also gave evidence of the finding of the corner of a condom wrapper on the video-recorder in the applicant's lounge room.

14 The second police officer, Constable Patrick O'Hehir, gave evidence which was similar to and confirmatory of that given by Constable Bancilhon. Constable O'Hehir had been the exhibits officer in the course of the search of the applicant's home.

15 The applicant gave evidence in his own defence. In his evidence he said that the complainant had asked him to make her drink "strong" because she worked in a bar. He said that she invited him to sit next to her on the couch when they were watching the video. She said that she wanted to be comfortable and removed her jeans, but "took … [a] sheet to her". He said that he went to his bedroom and removed his pants and put on, instead, a pair of boxer shorts. He and the complainant were kissing each other before Al Amer arrived and, when Al Amer arrived, the complainant pulled the sheet over her legs to conceal the fact that she was not wearing her jeans. After Al Amer left, the two continued kissing each other and he touched the complainant "everywhere". She told him that she had her period. He said that, having regard for his Jewish faith, he could not have sex with a woman who had her period. He said that he never did have sexual intercourse with her and that she later began to vomit, before passing out on the mattress. When she woke up in the morning, she was still dressed as she had been the night before, with her top and her underpants on but not her jeans. He said that he slept on the mattress next to her and that, once he lay down, he fell asleep at once and did not wake up until the morning. He denied stroking the complainant's thigh after he woke up.

16 At the conclusion of the applicant's evidence, which was also the conclusion of the defence case (no other evidence having been called on the applicant's behalf), the prosecutor made an application to recall Constable Bancilhon. An issue had arisen whether, when she had first telephoned the applicant and asked him to come in and talk to her at 60 Beaufort Street, she had identified herself as a police officer. The applicant, while under cross-examination, said that she did and also that

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he knew that 60 Beaufort Street was a police station. The prosecutor wished to recall Constable Bancilhon to say that she had deliberately not identified herself as a police officer. The only relevance of the issue appears to be that of whether or not the applicant had knowingly co-operated with a police officer. Counsel for the defence objected to the recall of Constable Bancilhon on the grounds that her evidence on that issue was irrelevant, but said that he would "leave it up to" the trial Judge. The trial Judge then allowed the recall and Constable Bancilhon gave evidence to the effect that she had deliberately not identified herself as a police officer and had said only that she wanted to speak to the applicant before his citizenship ceremony, which was to take place that evening. She said that she did not tell him what it was that she wanted to speak to him about.

Grounds of Appeal

17 There are six grounds of appeal, a seventh having been abandoned. These are as follows:

"1. When dealing with the issue of alcohol consumed by the complainant, the learned trial judge failed to adequately instruct the jury as to how that fact may impact on the complainant's evidence pertaining to her recollection and believability as to the offence;

PARTICULARS
(a) The learned trial judge raised the issue of alcohol in his direction;

(b) The learned trial judge told the jury in essence not to ignore the effect of alcohol in the trial, both on the complainant and the accused.


2. The learned trial judge significantly diminished the defence case by instructing the jury that it was none of there [sic] business and not part of there [sic] deliberations to judge the conduct of the police.

PARTICULARS
(a) This was a significant part of the defence case which called into question the state of mind of Al-Rawi at the relevant time;

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(b) It also called into question the conduct of the police officers;

(c) The learned trial judge instructed the jury that it was non [sic] of their business and this was wrong;

(d) The issue of police conduct was clearly a matter for the jury to consider;

(e) It was highly relevant to the accused's state of mind;

(f) The jury was never directed as to how it was relevant to the accused and they were never directed as to how they could deal with such evidence.

3. … [abandoned]

4. The learned trial judge failed to direct the jury as to how they were to deal with the evidence of the complainant that she had woken up and observed the accused on top of her having sexual intercourse and then lapsing back into a state of unconsciousness.


PARTICULARS
(a) The learned trial judge mentioned the evidence that the complainant had been unconscious, woke up from that state, observed the accused having sex with her and the [sic] fell back into an unconscious state;

(b) The learned trial judge failed to direct the jury that this fact was a significant factor in assessing the credibility and accuracy of the complainant's evidence.


5. The learned trial judge erred in directing the jury that they need not consider the issue of consent.

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PARTICULARS

(a) The learned trial judge wrongly took the issue of consent away from the jury;

(b) Although the defence case was that there was no sexual intercourse, it was still open for the jury to find that sexual intercourse took place, but that the complainant consented to such act;

(c) The jury were not permitted to consider this issue, when it was a matter for them to consider.

6. The learned trial judge failed to warn the jury not to speculate or look for theories not supported on the evidence when he was required to so direct.

7. The learned trial judge erred in permitting the prosecution leave [sic] to re-open their case."

Grounds 1 and 4

18 I propose, first, to deal with grounds 1 and 4, those grounds having been dealt with together by counsel for the applicant.

19 Prior to addressing the jury, the trial Judge told counsel of a number of the directions which he proposed to give. He said, in the course of doing so, that he proposed to draw the attention of the jury "to alcohol, its effect on memory and inhibition and also at the same time tell them there's no evidence of what the mix of cold tablets does with alcohol …". Neither counsel raised any objection to this proposal.

20 In his summing up to the jury the trial Judge did as he had foreshadowed. He said the following:

"This morning I want to commence by telling you about the position that alcohol has to play in this trial and to ask you to bring your collective experiences to bear upon the use of alcohol in the quantities that you have heard evidence given about in this trial. You have the evidence of each of the complainant and the accused about how much was drunk and you have the evidence of the video record of search which shows the amount left in the bottom of the Johnnie Walker Red Label Scotch and you have in relation to that the accused's

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evidence that he had not had any more Scotch out of that bottle since the night of 11 September.

t. Those of you who drink alcohol regularly or irregularly will know the effect that alcohol has on a number of things. Firstly, it has an effect on memory, as I'm sure you're all aware. It also has an effect on inhibition. Alcohol is a disinhibitor, as again I'm sure you know. If you don't know from personal experience in terms of the way in which it has affected you, you will have seen people close to you affected by alcohol, I'm sure, and you will know that it is a disinhibitor and that it has effect on memory and there is a third thing that it also has an effect on, and that is one's health after the ingestion of too large a quantity of it."

21 After making some other comments on the ill-effects, on health, of alcohol, the trial Judge went on to say:

"[S]o when you are looking at the evidence in this case, do not discount the position of the use of alcohol. Look at it when you are analysing the evidence and make appropriate allowances for it as your collective experience dictates.

…

The other thing which is obvious, whilst the complainant told you that she had taken, I think, a couple offlu tablets during the course ofthe day ofthe 11th and she had some residual effects ofa cold and flu, there is noevidence before the court as to the effect ofthe admixture ofthe medication she was taking and alcohol, so in that area there is only conjecture and you mustn't conject about these things. The doctor was asked by Mr Singleton, you will recall Dr Payne, 'Look, what about the admixture ofalcohol with flu tablets,' and she said, 'Look, I'm moving out ofthe area of myexpertise' and you will recall Mr Singleton said, 'Well, we don't want you to do that' and moved on to another issue, sothere is no evidence, we don't know, as Dr Payne said, 'I don't know the chemical constituent ofthe tablets she was taking, so I can't help you and it's outside myarea ofexpertise.' Don't ignore the effect ofalcohol in this trial, both on the complainant and on the accused."

22 Still later in the course of his summing up, the trial Judge mentioned that the complainant had obviously been "very badly affected by liquor".
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23 In the course of setting out what was the essence of the prosecution case, and that of the defence, the trial Judge said what had been the evidence of the complainant in respect of the few seconds in which, she said, she had woken up to find the applicant on top of her before lapsing back into unconsciousness. He reminded the jury that the applicant had said that no such thing had happened. He also emphasised to the jury what had been said by counsel for the applicant, in the course of his closing address to the jury, to the effect that, although the complainant had said to each of Dr Payne and Ms Lummis only that she "may have been sexually assaulted", there had been "a movement up the scale of complaint … by the time she gets to the police", because she told the police that she actually recalled the fact of the sexual penetration during the few seconds in which she had recovered consciousness, and that this was "indicative of a story building for some reason". The trial Judge reminded the jury, in that context, that these events occurred after the complainant had "obviously … [been] very badly affected by liquor".

24 In my opinion, these directions were adequate in the circumstances of the case and nothing more was required, so far as the matters raised in grounds 1 and 4 are concerned. It must have been obvious to the jury, from what the trial Judge said (and this issue was, of course, central to the submissions of both counsel at the trial) that the evidence of the amount of alcohol consumed by the complainant and that of what was said by the complainant to Dr Payne and Ms Lummis was required to be taken into account in assessing the reliability of the complainant's evidence as to what had occurred in the few seconds in which, she said, she was awake and found the applicant having sex with her.

25 Grounds 1 and 4 consequently fail.

Ground 2

26 As to ground 2, at the trial the conduct of the police was severely criticised by the then counsel for the applicant as regards the manner in which the search was carried out and as regards the contents of the videotape of the search. In his summing up, the trial Judge said, in that respect, the following:

"Next, I want to come to the search video. There were a number of complaints made to you in relation to the search process, the evidence of the search and the later police treatment of the accused. I want to tell you, lest there be any diversion here, the police are not here on trial. It is no part of your function to judge the conduct of the police. If evidence had

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been improperly obtained, the law provides a perfect mechanism for its exclusion and you would not have heard it if it had been improperly obtained, so don't be diverted from the essential issue in this case by worrying about whether the police have acted properly or improperly; it's none of your business.

If they have, it can be taken care of later in another forum. If they had behaved improperly and evidence had been obtained improperly and an application had been made to me to exclude it and I was satisfied it had been obtained improperly, I would have excluded it and you wouldn't have heard it, but it's part of the body of evidence for you to hear now so don't be distracted please by police conduct. This is not to say that the accused's state of mind at time [sic] he is participating in the video record of interview or at the time of the video search or at any time that he is speaking to the police is irrelevant. It is highly relevant; so keep that distinction in mind if you would please."

27 Counsel for the applicant's contention, as I understand it (and it was not very vigorously pressed before us), is that the applicant's state of mind at the time of the search was relevant to the question of his overall credibility and this direction, in some way, detracted from the jury's understanding of that fact.

28 While the trial Judge's selection of words was, in my respectful opinion, somewhat unfortunate, more particularly in telling the jury that the question of the police impropriety was none of their business, the effect of what was said was no more than that the applicant's state of mind at the time was a relevant matter for the jury to consider, but that otherwise the question whether or not the police had or had not behaved improperly was irrelevant.

29 The trial Judge also gave to the jury a strong direction (which is not the subject of any complaint) that evidence of the applicant's recent sexual history and of his drinking habits was entirely irrelevant and that it was impermissible for the jury to embark upon any form of propensity reasoning arising out of the finding of the condoms and explicit sexual material in the applicant's home.

30 Finally, so far as this ground is concerned, the trial Judge emphasised to the jury that the search video "material" was "let go through to … [them]" by the defence "for one purpose and one purpose only - … to

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show you how open this man was with material that might otherwise have been thought to impact negatively upon him".

31 It seems to me that these directions were sufficient in all of the circumstances and it follows that there is, in my opinion, no substance to ground 2.

Ground 5

32 As to ground 5, I am not at all persuaded that the trial Judge "wrongly took the issue of consent away from the jury".

33 Indeed, his Honour told the jury that the absence of consent was an element of the offence and explained what was meant by the word "consent". He went on to say:

"There is no dispute in this trial but that if, [sic] if the complainant was penetrated by the accused's penis whilst she was conscious with the act having its commencement at the time she was unconscious then she would have been incapable of giving consent and there would be no consent in law."

34 He then said that he would return to that issue later. He did so, when summarising the respective cases for the prosecution and the defence. In the course of setting out what was the defence case, he said:

"[The applicant] says it is against his religion to have intercourse with a women who is having her period and apart from which he just did not do it, as he said to the police, 'Even if I was that drunk where I didn't really know what I was doing I would still know if I was having sexual intercourse so it could not have happened without my knowledge,' and so there is no issue, if you like, of consent in this trial. There is an issue of consent but in the sense that he thought she was consenting or might have mistakenly thought she was consenting, there is no issue about that.

If I may use the expression, the battle lines here are drawn and diametrically opposed to one another. The prosecution says that the complainant was sexually penetrated by the accused. The accused said I never put my penis or any part of my body into her vagina at all. So if there was sexual penetration of the complainant I remind you whilst she was unconscious she could

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not have consented and it follows from the accused case there is no issue of him thinking she had consented and going on with it.

The prosecution has to establish beyond reasonable doubt that this act of penetration occurred and that insofar as it was going on before the complainant woke up in the prosecution case it could not have been by consent because she was unconscious and unconscious people cannot consent to anything. Now, going back then - so they are issues which are really, without any doubt about it that's the central issue in this case. Did that act of sexual intercourse occur? Has the prosecution established beyond reasonable doubt that that act of sexual penetration occurred?"

35 It is plain from the aforegoing that the trial Judge did leave the issue of consent to the jury. He said, in terms, that there was an "issue of consent" and that the prosecution had to establish beyond reasonable doubt that the act of sexual penetration began before the complainant woke up and, hence, could not have been by consent. While he also said that there was no issue of mistaken belief as to consent, this was appropriate in circumstances in which that conclusion followed inevitably from the evidence of the applicant himself. As the trial Judge explained to the jury, the central question in this case was that of whether or not sexual intercourse occurred at all.

36 It follows that ground 5 fails.

Ground 6

37 As to ground 6, it is true that the trial Judge did not warn the jury not to speculate or look for theories which were not supported on the evidence. It is also true that directions of that kind are ordinarily given. However, nothing followed from the omission, in my opinion. The trial Judge made it plain to the jury that they could only have regard to the evidence presented at the trial and he clearly isolated and explained to them what were the issues at the trial, these having been very straightforward and readily apparent. In these circumstances nothing more was required and no miscarriage of justice could have resulted from the omission.

38 It follows that this ground fails.

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Ground 7

39 As to ground 7, I must say, with due respect, that it seems to me that the trial Judge was wrong to permit the prosecution to re-open its case for the purpose of contradicting an answer given by the applicant to a question put to him in cross-examination concerning a collateral fact which was, for any practical purpose, irrelevant to any issue at the trial: cfHarris v Tippett (1811) 2 Camp 637; 170 ER 1277 and see Kurgiel v Mitsubishi Motors Australia Ltd (1990) 54 SASR 125 at 128 - 130. However, I am unable to see how the recall of Constable Bancilhon might have led to any miscarriage of justice. If the evidence which she gave upon her recall could be described as relevant at all, its relevance was so peripheral as to have been incapable of influencing the outcome of the trial. It seems to me to have been a matter of little moment whether or not Constable Bancilhon identified herself as a police officer when telephoning the applicant and whether or not the applicant was right in his recollection that she did so. It is obvious, from the applicant's own evidence, that he knew that the place to which Constable Bancilhon invited him to go was a police station. Consequently, he may well have inferred that she was a police officer even if she did not identify herself as such. Accordingly, if the jury considered that Constable Bancilhon was right in her evidence, and that the applicant was wrong in his, this could have made no significant difference to their assessment of his credibility.

40 This ground, too, fails.

Conclusion

41 While I would grant to the applicant leave to appeal to the extent that he requires it, I would dismiss the appeal.

42 WHEELER J: I have had the advantage of reading in draft the reasons for decision of Steytler J. I agree with those reasons and have nothing to add.

43 SIMMONDS J: I have had the advantage of reading in draft the reasons to be published by Steytler J. I agree with those reasons and have nothing to add.