Director of Public Prosecutions v Umunakwe

[2024] ACTSC 229

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Umunakwe

Citation: 

[2024] ACTSC 229

Hearing Date: 

16 July 2024

Decision Date: 

Reasons Date: 

17 July 2024

17 July 2024

Before:

Baker J

Decision: 

The application for a directed verdict in respect of count 3 was dismissed.

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – application for directed verdict – where evidence in respect of count alleging anal intercourse not strong – some evidence of anal sexual intercourse - high threshold for directed verdict not met – application refused.

Cases Cited: 

R v GAT [2024] NSWCCA 32

RMSv R [2013] NSWCCA 285

TS v The Queen [2017] NSWCCA 247

Parties: 

Director of Public Prosecutions

Emmanuel Umunakwe ( Accused)

Representation: 

Counsel

C Muthurajah ( DPP)

R Rodger ( Accused)

Solicitors

ACT Director of Public Prosecutions

Kamy Saeedi Law ( Accused)

File Number:

SCC 187 of 2023

BAKER J:

REVISED EX TEMPORE REASONS

1. At the conclusion of the complainant’s evidence in chief, counsel for the accused, sought a directed verdict on count 3 of the indictment. I declined to enter a directed verdict of acquittal for that count. These are my reasons for so ordering.

2. Count 3 alleges as follows:

   That on 28 January 2023 at Canberra aforesaid EMMANUEL UMUNAKWE engaged in sexual intercourse with [the complainant] without her consent, being reckless as to whether she was consenting.

3. The high point of the complainant’s evidence concerning count 3 is contained in the following answers in the complainant’s evidence in chief interview:

   Q640          Okay.  And when he reinserted his penis into you, was it back into your vagina?

   AThere was – yeah, at that point. And then, ah, it was more after, when I was still, like hunched in the corner, I think he may have put it in my arse at one point.

   Q641          Okay.

   A               Just it was a very different change.

   Q642          Okay. Okay.

   A               That was, like, way more painful.

   Q643          Okay. Okay. And how long did that go for?

   A               Um, probably only 30 or so seconds, that part. (emphasis added)

4. It was common ground between the parties that the remaining evidence to be adduced by the prosecution will not further advance the prosecution case in respect of this count. The Crown Case Statement states that the medical notes of the consultation which occurred shortly after the alleged sexual assault record that the complainant reported “possible penile-anal as it ‘felt different’”. The Crown Case Statement further states that DNA analysis of forensic samples determined that the accused cannot be excluded as a contributor to DNA detected in the peri-anal swabs of the complainant. I was also informed from the bar table that an anal swab of the area inside the anus was taken, and no DNA in relation to the accused was identified.

5. The prosecutor did not contend that the determination of the no case submission should await the adducing of that further evidence. I understood the prosecution to accept that the evidence in support of count 3 had been “fully presented”, and that consistently with the decision in TS v The Queen [2017] NSWCCA 247 at [19], it was not then “incumbent on defence counsel to commence cross examination or await the end of the Crown case, with the attendant risk that the gap will be filled”.

6. The principles to be applied on an application for a directed verdict of acquittal were set out in TS v The Queen (citing RMSv R [2013] NSWCCA 285) at [16] as follows:

   (a) A judge may direct a verdict of acquittal only if there is a defect in the evidence in the Crown case such that, taken at its highest, it will not sustain a verdict of guilty; if there is evidence, though tenuous, or inherently weak or vague, that is capable of supporting a verdict of guilty, it must be left to the jury: Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207.

   (b) In a case based on circumstantial evidence, a judge cannot direct a verdict of acquittal if there is evidence in support of the Crown case even though a reasonable hypothesis consistent with innocence can be formulated: R v JMR (1991) 57 A Crim R 39.

   (c) There is no power to direct an acquittal on the basis that any resultant conviction would be unreasonable or unsupported by the evidence: R v R (1989) 18 NSWLR 74; Doney v The Queen.

7. As the New South Wales Court of Criminal Appeal recently explained in R v GAT [2024] NSWCCA 32, the threshold that is required for a directed verdict is very high. At [50] - [51] of that judgment, Button J (with whom Davies and Weinstein JJ agreed) held:

   … it is trite law that, for a verdict of acquittal to be directed, a trial judge must come to the view that there is no evidence whatsoever of an essential element of the offence: see Doney v The Queen (1990) 171 CLR 207; [1990] HCA 51. The assessment by a trial judge that any verdict of guilty would be unreasonable or unable to be supported is not to the point: Doney v the Queen. It is also well-established that, when the prosecution case is circumstantial, the mere ability to formulate an alternative rational hypothesis consistent with innocence does not call for a directed verdict: R v JMR (1991) 57 A Crim R 39.

   The issue calls for an answer that is not in the nature of an evaluative judgement, but rather the answer to a simple binary question: is there or is there not any evidence whatsoever of an essential element? By way of simple example, if on a count of armed robbery, there was evidence of money having been stolen from the victim by the use of force, but not a scintilla of evidence, from any source, direct or indirect, explicit or implicit, circumstantial or otherwise, that a weapon was part of the offending, then there must be a verdict by direction on that count.

8. Applying this test, his Honour identified the question there under consideration as “… whether there was any evidence whatsoever that the complainants were not consenting…”: GAT at [52] (emphasis added).

9. In the present case, the prosecution evidence in support of count 3 is not strong. However, it cannot be said that there is no evidence of anal penetration. The complainant’s evidence was that she thought that the accused may have put his penis into her anus. The complainant gave a contemporaneous account to the doctor which was in relevantly the same terms. In these circumstances, the very high threshold that is required for a directed verdict has not been met.

10. Accordingly, the application for a directed verdict in respect of count 3 was dismissed.

I certify that the preceding [10] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker

Associate:

Date: