Panfilio Zenga v R Nos. SCCRM 94/6 and SCCRM 94/7 Judgment No. 4439 Number of Pages 10 Criminal Law and Procedure Rape

[1994] SASC 4439

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL LEGOE ACJ(1), BOLLEN(2) AND MULLIGHAN(3) JJ

CWDS
Criminal law and procedure - Rape - Summing up - sufficiency of caution as to evidence of alleged victim - focus on main forensic issue not deflecting jury from consideration of all ingredients of charge - fairness of presentation of defence to jury - verdict not unsafe.

Sentence - Rape - 7 years with non-parole period 5 years not excessive.

HRNG ADELAIDE, 25 February 1994 #DATE 25:2:1994

Counsel for appellant:     Mr K V Borick with
   Mr J D Edwardson

Solicitors for appellant:    Phillips Fox

Counsel for respondent:     Mr J J Doyle QC with
   Mr S J Smart

Solicitors for respondent: Director of Public Prosecutions
   (SA)

ORDER
Appeal dismissed.

JUDGE1 LEGOE ACJ This is an appeal against a conviction, by verdict of a jury, in the District Court, of the crime of rape. The appellant stood trial on a charge that on 21 March 1993, at Adelaide, he had vaginal sexual intercourse with the alleged victim without her consent. The case for the prosecution rested upon the evidence of the alleged victim.

2. In the early hours of the morning, a Sunday morning, 21 March 1993, she was in the company of a male friend at a nightclub at the New Market Hotel, in Adelaide. She set off to go to the toilet. On the way to the toilet she encountered the appellant. She knew the appellant by the name of Phil. She had encountered him on previous occasions at various night spots. She claimed that the appellant had made something of a nuisance of himself towards her. He had, on her evidence, made unwelcome telephone calls to her at work. On one particular occasion, at a nightclub, some time previously he had actually forced his way into her car in a car park, and refused to leave the car, being forced out only when she secured the assistance of a friend.

3. She said that on the morning in question the appellant took hold of her and embraced her, that he forced her along a corridor weaving his way through other people who were in the corridor, and forced her into the disabled persons toilet. There he twirled her round his head, forced her against the wall, forced her dress up and her pants down on her thighs, forced his penis into her vagina and ejaculated. She said that the seminal fluid was on her thighs, that the appellant asked her whether she was all right, and then left the toilet. She cleaned herself up with a tissue and also left the toilet.

4. Outside the toilet she encountered her escort. He appeared to be angry because of her prolonged absence. He questioned her about her absence, and after a short time she told him that she had been attacked by a man by the name of Phil. Her evidence was that they went looking for the man, Phil, but did not find him. She said that she was also looking for security guards, but did not see them. She and her male friend, whose name was Minnis, left the premises. On the way home there was some unpleasantness between them, and finally she told Minnis that she had been raped.

5. On the following Tuesday she consulted her family doctor, a Dr Dixon. She was concerned about the possibility of having contracted a disease in consequence of the rape. A swab was taken by Dr Dixon. She also told Dr Dixon of injuries which she had sustained in the incident. Her evidence was that she had twisted her ankle badly when the appellant put her down in the toilet, and that she bumped her head.

6. Mr Minnis gave evidence that the alleged victim had set off to go to the toilet, that he had gone looking for her when she was absent for some 20 minutes. He encountered her outside the toilets in the corridor, and he was angry at her absence, and she told him she had been attacked by Phil, and that they went looking for Phil. He said that they had not been looking for a security guard. He confirmed that she told him of the rape on the way home in the car.

7. The alleged victim reported the incident to the police on the following Sunday. By that time she had ascertained the name, and presumably the address, or at least some way of contacting the appellant. The police spoke to the appellant, who declined to answer questions.

8. The appellant gave evidence in his defence. He said that he had known the alleged victim from encounters at night spots over a period of time. He said that she was always friendly to him, and indeed made advances to him on at least some of those occasions. His account of the incident, when he was in her car, was that of being there at her invitation. The general effect of the appellant's evidence, as to his previous relationship with the alleged victim, was that so far from being a nuisance to her she had always shown an interest in him.

9. The appellant said that on the morning of the subject incident, he was in the company of a friend, by the name of Angelopoulos. The alleged victim came up to him and made an advance to him. She then took him by the hand and led him to the disabled toilet. She locked the toilet door and they embraced. After a time she pulled his pants down and masturbated him. She masturbated him to the point of ejaculation. He denied that he had twirled her about his head, or pushed her against the wall. He denied that sexual intercourse had taken place. Mr Angelopoulos gave evidence to similar effect to that given by the appellant, as to what occurred when the alleged victim first came into contact with them, and he gave evidence that she led the appellant along the corridor, in the direction of the toilet. He said that following the emergence of the appellant from the toilet the appellant told Angelopoulos that she had "jerked me off".

10. Mr Borick, who appeared for the appellant before us, has argued that this verdict is unsafe, and unsatisfactory. He submitted that this court, assessing the evidence independently should conclude that the jury should have had at least a reasonable doubt about the truth of the charge, and that the appellant should have been acquitted.

11. Mr Borick has stressed what he submits are weaknesses in the case for the prosecution and, in particular, in the story put forward by the alleged victim. He has stressed the unlikelihood of the twirling around the head in the enclosed space of the toilet. He has stressed what he has submitted to be the unlikely circumstance that the alleged victim's screams and protests could have gone unnoticed by people in the vicinity. He has stressed what he submits to be the inconsistency of her behaviour following the incident, in not making an immediate complaint to her boy-friend and not going to make an immediate complaint to the security guards and, of course, not making an immediate complaint to the police. He has also stressed the conflict between the alleged victim's evidence and that of Mr Minnis as to the search for a security guard.

12. I do not refer to all the arguments put by Mr Borick as to the alleged weaknesses in the case for the prosecution. The general thrust of Mr Borick's submission is that the story is an unlikely story and that its acceptance by the jury must be discounted by reason of what he has submitted are defects in the summing up which would have deflected the jury from its true function and failed to bring to its attention sufficiently the problems associated with the case for the prosecution.

13. One of Mr Borick's principal complaints was that the summing up focussed the attention of the jury upon the issue which the learned judge described as the main issue, of whether sexual intercourse had taken place. Mr Borick has submitted that the focus which was placed by the judge upon the issue as to whether sexual intercourse had taken place, had a tendency to deflect the jury from the true issue in the case, namely, whether the appellant had committed rape. He highlighted a number of passages in the summing up which he said tended to deflect the jury in that way.

14. In my view, the learned judge directed the jury correctly as to the elements of the crime and he made clear to them that they must be satisfied about each of these elements. It is true that he directed their attention principally to the issue of whether sexual intercourse had taken place. That was in a true sense the main forensic issue in the case.

15. The alleged victim claimed that sexual intercourse had occurred without her consent. The appellant denied that sexual intercourse had taken place at all. His evidence was that the only sexual act which occurred was one of an entirely different nature, namely, the masturbation of himself by the alleged victim.

16. In those circumstances, it was perfectly proper, in my opinion, for the learned judge to direct the jury's attention to the central issue, namely, as to whether sexual intercourse had taken place. There was no suggestion in the case that the alleged victim had ever consented to sexual intercourse; the defence was that there had been no sexual intercourse.

17. The learned judge in a number of passages made it clear that notwithstanding that the main issue was whether sexual intercourse had taken place, nevertheless, there could not be a conviction unless the jury were satisfied beyond reasonable doubt about each of the elements of the crime.

18. What he said on this topic is encapsulated in the following passage:
    "As previously indicated, in view of the defence that no
    sexual intercourse occurred, consideration of the accused's
    state of mind may be here somewhat academic. However, proof
    of this third element must also be established beyond
    reasonable doubt. Only if you were to be satisfied that Ms
    Green did not consent, that is the second element, and
    either that the accused knew, was aware, or did not believe
    that she was consenting to the act of sexual intercourse, or
    that the accused, realising that she might not be
    consenting, nevertheless proceeded to have sexual
    intercourse with her, not caring whether she was consenting
    or not, that is, with reckless indifference as to whether
    she might not be consenting, only then are you entitled to,
    and may you, find him guilty of the alleged offence,
    provided, of course, that the other elements have been
    established."

19. I do not think that the argument that the learned judge's focus upon the main issue, namely, whether sexual intercourse had taken place, deflected the jury from consideration of the issue which they had to resolve, can be sustained.

20. Mr Borick also argued that the judge had erroneously provided three options to the jury as to their method of approach. In one passage in the summing up His Honor told the jury that in a case such as the case which they had under consideration, where there were two conflicting versions, there are, for practical purposes, three possibilities. The first was that the jury would be completely satisfied with the evidence led by the Crown, in which case they would find that the case had been proved beyond reasonable doubt and the verdict would be guilty. The second possibility, was that the jury would be completely satisfied by the evidence led by the defence and be satisfied, therefore, of the innocence of the appellant, leading to a verdict of not guilty. The third alternative was expressed as follows:
    "Thirdly, you may, after a full and careful consideration of
    the evidence, come to the conclusion that you are not able
    to say where the truth lies, or you are unable to say who is
    telling the truth."

21. He went on to tell the jury in that case they would have a doubt and the verdict must be not guilty.

22. Mr Borick has criticised the reference in the second of these alternatives to being completely satisfied with the evidence led by the defence.

23. I can see nothing wrong with the way in which His Honor put the matter to the jury in that passage. He was simply telling them that there were three possible states of mind: they might be satisfied by the evidence of the prosecution, they might be satisfied by the evidence of the defence, or they may not know where the truth lies. And he correctly informed them of the verdict to which each of these states of mind would lead. I can see no mis-direction in what the learned judge said.

24. Mr Borick also complained about the way in which the learned judge referred to the significance of the alleged victim's behaviour after the incident in the toilet. His Honor said:
    "Were you to consider that the evidence relating to Ms
    Green's behaviour and appearance after this alleged offence
    was equally consistent with what the accused has said
    occurred, that is, that Ms Green masturbated him, or with
    anything else, for example, any suggested or possible motive
    for Ms Green having here given false evidence, then you may
    not be inclined to regard that evidence of her behaviour and
    appearance subsequently as having much significance in
    determining whether you are satisfied that this alleged
    offence has been established."

25. This seems to me to be a completely accurate direction to the jury. Obviously if in their estimation the behaviour of the alleged victim after the incident is equally consistent with her story and with the appellant's story, then no assistance will be gained from it. It is only if it tends to support one story against the other that the jury will be able to gain assistance from it. I can see no difficulty or error in that direction.

26. Mr Borick also complained about the failure of the judge to direct the jury's attention to the conflict between the evidence of Mr Angelopoulos and that of the complainant. He maintained that Mr Angelopoulos's evidence was not challenged by the prosecution at trial.

27. I am unable to accept that submission. My reading of the cross-examination of Mr Angelopoulos is that counsel for the prosecution was seeking in that cross-examination to undermine the credibility of Mr Angelopoulos and the veracity and accuracy of his story. I think that would have been perfectly clear to Mr Angelopoulos and would have been perfectly clear to the jury.

28. It was, of course, a matter for the jury to decide what weight they were prepared to place upon the evidence of Mr Angelopoulos. It is true that the learned judge did not, in terms, highlight the conflict between the evidence of Angelopoulos and that of the complainant. He did not say in so many words that the two could not stand together. I think, however, that would have been perfectly obvious to the jury. It was a question of fact and the summing up is not to be regarded as defective simply because the judge does not refer to each point which might be made upon the evidence and facts of the case.

29. Mr Borick contended that the reference by His Honor in the summing up to the case being one of oath against oath did less than justice to the evidence for the defence and, particularly, Mr Angelopoulos's evidence, which, if accepted, tended to confirm the evidence of the appellant and to contradict the evidence of the complainant. However, the reference by the learned judge to oath against oath was in the context of warning the jury about the care with which they ought to scrutinise the evidence for the complainant. The passage is as follows:
    "In a case such as this, where, essentially, there is oath
    against oath, that is the sworn evidence of Ms Green against
    the sworn evidence of the accused, and there is no
    independent support of the complainant's evidence (because,
    of course, no-one else was in the toilet at the time), there
    may be a difficulty in arriving at a conclusion of guilt
    beyond reasonable doubt. While there may be cases in which
    a complainant's evidence is so convincing, and the accused's
    denials are so incredible, that it is possible to find that
    guilt beyond reasonable doubt has been established,
    nevertheless, caution may be indicated. In your
    consideration of this alleged offence where, essentially,
    there is oath against oath you should scrutinise, consider
    and evaluate Ms Green's evidence most carefully and
    cautiously, particularly in relation to any suggested or
    possible motive or reason that may exist for her here having
    given false evidence, or having made false allegations
    against the accused. (For example, in an endeavour to
    conceal from her boyfriend, Mr Minnis, what had really
    occurred. That is one, you may think, quite obvious motive
    which can be considered.)"

30. His Honor, later in other passages in the summing up, referred to motives which Ms Green might have for inventing a story of rape for the consideration of the jury.

31. Mr Borick has submitted that that caution to the jury was inadequate in the circumstances of this case. He contended that the circumstances called for a direction that it was unsafe to convict on the uncorroborated evidence.

32. I think the first comment that might be made about that submission is that it is by no means clear to me that the evidence of Ms Green should be regarded as uncorroborated. The presence of seminal stains on the dress might be thought to have provided substantial support for her story.

33. It is true that, at trial, the appellant gave evidence which, accepted, might explain those seminal stains in a way which was consistent with innocence, but that does not, by any means, necessarily deprive them of corroborative force. Much would depend upon the jury's estimate of the explanation which the appellant gave. They may well have thought that it strained credibility.

34. Be that as it may, the learned judge was not required by law to give the jury a corroboration direction. I think that the circumstances of the case, particularly the unusual story of a rape having been committed in a busy nightclub in a toilet, required some caution to the jury. The extent of that caution was a matter for the judgment of the learned trial judge.

35. He gave the jury what was quite a strong warning to scrutinise Ms Green's evidence carefully and cautiously, bearing in mind that the case depended only upon her word, that is to say, her oath against the oath of the appellant in denial of the charge, and the absence of any supporting evidence.

36. I do not think that a fair trial, in the circumstances of this case, required any greater warning or caution than that which was given by the learned trial judge.

37. Mr Borick also submitted that the summing up was defective in that the learned judge did not direct the jury's attention sufficiently to the failure of the prosecution to call the family doctor, Dr Dixon, whom the alleged victim consulted on the Tuesday following the incident and did not direct them as to the use to which the jury might put a failure of the prosecution to call that witness.

38. The learned judge did direct the jury's attention to this issue. It had obviously been canvassed by counsel for the defence in the final address to the jury. He said in relation to the injuries:
    "Mr Edwardson put to you - why has not the Crown called Dr.
    Dixon (that is, the GP of Ms Green) who, he said, could have
    confirmed recent penetration or bruising. Well, members of
    the jury, in making that statement I must inform you that Mr
    Edwardson went too far, because we have here no medical
    evidence as to whether a doctor, upon examination of a
    particular person with, we will assume, sexual experience,
    would be able to say how long before had sexual intercourse
    taken place. We have no evidence about that. For Mr
    Edwardson to say to you that Dr Dixon could have confirmed
    recent penetration was really taking it too far, and I must
    correct that. There is no evidence that Dr Dixon could have
    given such evidence. The point remains, of course, that Dr
    Dixon was not here called. I do not know that we should
    speculate about that. I suggest that you just take that
    into account in considering the evidence that we here have.

    We did not hear from Dr Dixon. And he said, of course, that
    she only went to her doctor at Mr Minnis' insistence."

39. The point about the failure of the prosecution to call Dr Dixon was a legitimate point for counsel for the defence to make to the jury. The judge, I think, was correct in saying that counsel had gone too far in making the actual submission that he made, but, nevertheless, the point could validly be made and was made that the prosecution had failed by calling Dr Dixon to substantiate the injuries which the alleged victim claimed that she had sustained. It was a point on the facts and the evidence in the case.

40. The importance of the failure to call a witness depends upon the circumstances. There was nothing in the circumstances of the present case to suggest that Dr Dixon's evidence could have been decisive in the case.

41. There is no evidence as to whether her examination could have had a bearing one way or the other upon whether sexual intercourse had taken place. It seems unlikely after the lapse of two days. The twisting of the ankle and the knock to the head were really peripheral to the main point in the case and the significance of the failure to call Dr Dixon had to be assessed in that light.

42. It is a matter for the judge to decide to what extent he should direct the jury as to the failure to call Dr Dixon and any significance which they might attach to it. I do not think that what he said to the jury can be thought to have intended to bring about any unfairness in the trial or any miscarriage of justice.

43. In the end, it is necessary for this court to make an independent assessment of this evidence in order to determine whether the verdict was a safe verdict. It depended very much upon the jury's assessment of the witnesses.

44. The alleged victim's evidence recounted an incident which could certainly be regarded as unusual, that is a rape in the toilet of a busy nightclub with a failure of those nearby to intervene, notwithstanding the screams of the victim. That story undoubtedly required the careful scrutiny of the jury. They were directed to scrutinise it carefully.

45. It received some support, in my opinion, from the presence of seminal stains upon the dress. The appellant's account for the seminal stains, namely, masturbation by the woman in the circumstances which he described, might well have been regarded by the jury as a story which lacked the quality of credibility. It was, to say the least, an extraordinary story. It was the story of a woman who, with very little preliminary, led him into a disabled person's toilet, locked the door and masturbated him.

46. Mr Borick has argued that the presence of seminal stain, not only at the bottom of the dress, but also near the breast and towards the top of the dress, tended to support the appellant's version of what happened against the alleged victim's version. I do not think so. It seems to me that, as seminal fluid was present on the thighs of the alleged victim, and as she cleaned those up with the use of tissues, seminal stains could very easily have been transferred by the hand or by the tissue from one part of the dress to another, or from the thighs or body to some part of the dress. I do not think that the location of the seminal stains on the dress really possess any probative significance.

47. It was a case which depended upon the jury's evaluation of the witnesses, particularly the alleged victim the appellant and the witness Angelopoulos. The jury has reached its conclusion. I cannot agree that that conclusion is flawed as a result of any defect in the summing up.

48. The trial, to my mind, was a fair trial. The defence was fairly put to the jury. I can see nothing which would lead this court to say that the conclusion which the jury came upon the evidence before them was unsafe or that this verdict could be regarded as unreasonable or incapable of being supported having regard to the evidence.

49. In my opinion, the appeal against conviction should be dismissed.

50. Mr Borick has also submitted that the sentence is manifestly excessive. It is the established principle, of course, that this court will not interfere with a sentence imposed by a sentencing judge if it is reasonably within the sentencing discretion. It is outside the scope of the sentencing discretion only if it is manifestly excessive, that is to say so excessive that the court must say that the sentencing discretion has miscarried.

51. A sentence of seven years with a five year non-parole period for a first offender is a severe sentence, but rape is a grave crime and a rape committed in a public place in which a woman is entitled to feel that she is safe has a certain quality of added seriousness about it.

52. Although the sentence is severe, I am unable to say that it is manifestly excessive and I would dismiss the appeal against sentence also.

JUDGE2 BOLLEN J I agree with the Chief Justice.

JUDGE3 MULLIGHAN J I agree.