(The Honourable Chief Justice Kourakis, the Honourable Justice S Doyle and the Honourable Justice David)
5 September 2024
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT - SEXUAL INTERCOURSE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - PARTICULAR CASES - RAPE AND SEXUAL ASSAULT
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - DIRECTIONS TO JURY
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE
The appellant was charged with four counts of rape, contrary to s 48(1) of the Criminal Law Consolidation Act 1935 (SA). Following a trial before a judge and jury, the appellant was convicted of Counts 2 and 4. The jury were unable to reach a verdict in relation to Counts 1 and 3.
The complainant in each count was his wife. On the prosecution case, each of the alleged offences occurred while the complainant was asleep in her bed. On each occasion, she awoke to find the appellant having penile-vaginal sexual intercourse with her.
The appellant was sentenced to 12 years imprisonment, with a non-parole period of six years and six months. The judge had identified notional sentences of seven years imprisonment and eight years imprisonment respectively for the two offences and allowed for partial concurrency.
The appellant appeals against both his convictions and his sentence.
The appeal against conviction relies upon six grounds. Grounds 1, 2 and 3 relate to the prosecution evidence of suspicions, allegations and admissions of the various charged and uncharged occasions upon which the appellant had engaged in sexual intercourse with the complainant while she was asleep. The appellant’s complaints relate to the admissibility of this evidence for a propensity use and the trial judge’s directions in relation to this evidence.
Ground 4 involves a complaint regarding the admissibility of a covert recording made by the complainant of a conversation she had with the appellant. Ground 5 involves a complaint of a miscarriage of justice by reason of the failure of the judge to adequately direct the jury in relation to their use of the evidence of the complainant’s health and medication. Ground 6 involves a complaint of a miscarriage of justice by reason of a submission by the prosecutor to the effect that the appellant had invented a version of events to fit the evidence.
The appeal against sentence is confined to a complaint of manifest excess in the sentence imposed.
Held, per Doyle and David JJA (Kourakis CJ agreeing), granting permission to appeal against conviction but dismissing the appeal on all grounds:
1.The evidence of the appellant’s charged and uncharged occasions of engaging in sexual intercourse with the complainant while she was asleep was admissible for a propensity use under s 34P of the Evidence Act
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Potter (a pseudonym) v The King [2024] SASCA 108
Case
[2024] SASCA 108
Decision Date
CaseChat Overview and Summary
The Supreme Court of South Australia, constituted by Kourakis CJ, S Doyle and David JJ, heard an appeal by the appellant, identified by the pseudonym Potter, against his conviction and sentence for rape. The dispute arose from allegations that the appellant had engaged in non-consensual sexual intercourse with his wife on four separate occasions between March 2017 and January 2020. The appellant admitted to one count of rape but denied the others, asserting consent for the admitted act.
The legal issues before the court included whether the jury had been adequately directed on propensity and tendency evidence, and whether the sentence imposed was manifestly excessive. The appeal against conviction was based on the grounds that the trial judge’s directions to the jury were insufficient, potentially leading to a miscarriage of justice. The appeal against sentence argued that the 12-year term of imprisonment, with a non-parole period of six years and six months, was outside the available range of sentences for the offences of which the appellant was convicted.
The Court found that the grounds of appeal against conviction were not made out, meaning the convictions themselves would stand. However, the Court concluded that the sentence imposed was manifestly excessive. The reasoning for this conclusion was not detailed in the provided text, but it indicated that the sentence was outside the bounds of what could reasonably have been imposed. The Court therefore allowed the appeal against sentence.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
For the reasons which follow, none of the grounds in the appeal against conviction have been made out. However, the sentence imposed upon the appellant was manifestly excessive. The appeal against sentence should be allowed, and the appellant resentenced as set out at the conclusion of these reasons. Background By way of overview, the appellant and complainant met in 2012, while they were at high school. They commenced living together in 2014 and married in November 2015. The have two daughters. The first (I) was born on 12 July 2015, and the second (M) was born on 18 March 2017. The family moved to a house in Christies Beach in early 2017, before the birth of M. The complainant suffered from ill health following the birth of M. On 26 June 2017, she was diagnosed with postpartum thyroiditis and thyrotoxicosis. She continued to feel very unwell. This included an occasion when she made a call to a telehealth service late in the evening on 11 July 2017, complaining of feeling anxious and dizzy. She was told to rest. The family moved to a house in Middleton in early 2018, and stayed there until they moved to Lightsview in early 2019. The appellant and complainant separated in August 2019, but continued to live together in their Lightsview home. On the prosecution case, the first count of rape occurred in the weeks after M’s birth, in March or April 2017, while they were living at Christies Beach. The second count occurred on 11 July 2017, being the occasion of the complainant’s telehealth call. The third count occurred some time later, but while the appellant and complainant were still living at their Christies Beach address. The fourth count occurred on 26 January 2020, after they had separated but were still living together at their Lightsview address. As mentioned at the outset of these reasons, each allegation of rape involved the appellant engaging in penile-vaginal intercourse with the complainant, commencing while she was asleep. The prosecution case also included evidence from the complainant of suspicions and allegations of other similar instances of the appellant engaging in sexual intercourse with the complainant while she was asleep, and evidence from the complainant and others of admissions by the appellant that he had engaged in such conduct. The appellant gave evidence in the defence case. He denied that Counts 1, 2 and 3 occurred. In the case of Count 4, he admitted that he engaged in sexual intercourse with the complainant, but said it occurred while she was awake and was consensual. The prosecution case Central to the prosecution case was, of course, the evidence of the complainant. However, the prosecution also called evidence from the complainant’s general practitioner, her father and three of her friends. It is convenient to commence by summarising the complainant’s evidence, before addressing the evidence of these other prosecution witnesses.The complainant’s evidence The complainant gave evidence that she suffered from significant health difficulties following the birth of their second child, M. This included a postpartum infection requiring a hospital admission and ongoing antibiotics. During this period she suffered symptoms including blurry vision, a rapid heart-rate, high blood pressure, fatigue, nausea and weakness. Her sleep was sporadic and deep, and she sometimes had difficulty waking. She was prescribed a number of medications.
Evidence
Evidence Before The Court
Central to the prosecution case was, of course, the evidence of the complainant. However, the prosecution also called evidence from the complainant’s general practitioner, her father and three of her friends. It is convenient to commence by summarising the complainant’s evidence, before addressing the evidence of these other prosecution witnesses.The complainant’s evidence The complainant gave evidence that she suffered from significant health difficulties following the birth of their second child, M. This included a postpartum infection requiring a hospital admission and ongoing antibiotics. During this period she suffered symptoms including blurry vision, a rapid heart-rate, high blood pressure, fatigue, nausea and weakness. Her sleep was sporadic and deep, and she sometimes had difficulty waking. She was prescribed a number of medications. In relation to the first incident of non-consensual sexual intercourse (Count 1), which occurred about three weeks after the birth of their second daughter, the complainant woke one night at about 2.00 am or 3.00 am. She was positioned on her stomach, slightly to the side. The appellant was on top of her, engaging in penile-vaginal sexual intercourse with her. The complainant told the appellant to get off her, which he did. She told him that he was not to have sex with her whilst she was sleeping and was healing from giving birth to M. The appellant was apologetic. The complainant gave evidence of what she suspected were further incidents of non-consensual sexual intercourse that occurred between Counts 1 and 2. She said that between the occasion of Count 1, and her diagnosis on 26 June 2017, there were times when she would wake up with pain in her vagina, or with bleeding from her vagina, which indicated to her that the accused had had sex with her. She also said that there were times when the appellant would say to her during the day ‘Was it good?’, and a time when he mentioned the morning after pill. This led her to suspect that there were occasions when the appellant had had sexual intercourse with her while she was asleep and had not woken up. She said that between the occasion of Count 1 and her diagnosis, she and the appellant had discussions about not having sex with her while she was asleep; and that the appellant agreed not to, and was apologetic for having done so. The complainant’s symptoms in the period following the birth of their second child included auditory hallucinations. In the week leading up to her 26 June 2017 diagnosis, she also experienced a visual hallucination in which she saw a red demon. She reported the hallucinations to her doctor, Dr Altree. She presented at a hospital on 26 June 2017, and was diagnosed with postpartum thyroiditis and thyrotoxicosis. The complainant also gave evidence that there was an occasion at Christies Beach, separate from Counts 1 and 2, when she awoke startled in the night, told the appellant not to touch her, and sat in the corner of the bedroom. When the appellant followed her to the corner of the room, the complainant told him not to hurt her.
Decision
Reasons for decision
This ground of appeal has not been made out.Conclusion on appeal against conviction We grant permission to appeal against conviction, but for the reasons set out, dismiss the appeal.Appeal against sentence The appellant was convicted of two counts of rape, being Counts 2 and 4 on the Information. The maximum penalty for each was life imprisonment. Consistently with the jury’s inability to reach verdicts on Counts 1 and 3, the judge sentenced the appellant on the basis that there were no other charged or uncharged occasions of sexual offending by the appellant. Having identified notional head sentences of seven years imprisonment and eight years imprisonment for the two offences, the judge imposed a single penalty under s 26 of the Sentencing Act 2017 (SA) of 12 years imprisonment. Her Honour fixed a non-parole period of six years and six months. As mentioned at the outset of these reasons, the appellant seeks permission to appeal against sentence on the sole ground that the sentence imposed was manifestly excessive. The principles governing an appeal on this ground are well known and do not need repeating. It is enough to observe that the appellant must establish that the sentence was unreasonable or plainly unjust, in the sense that it was outside the range of sentences that might reasonably have been imposed having regard to all of the circumstances relevant to the offender and his offending.Circumstances of the offending Although it involves some repetition of matters already addressed in these reasons, it is convenient to commence consideration of the appeal against sentence by addressing the judge’s account of the factual basis upon which the appellant was sentenced. By way of background and context, the appellant and complainant had met at school, and married in 2015. They had a child that year, and then had their second child in March 2017. Following the birth of that child, the complainant became unwell with a postpartum infection. She attended hospital twice, and was treated with antibiotics, as well as medication to help her sleep. She was told not to have sexual intercourse for about two months to allow her body to heal. She continued to feel unwell, and was ultimately diagnosed with thyrotoxicosis. Turning to the first instance of offending, the judge explained that on 11 July 2017, the complainant called a telehealth service. She was feeling anxious, dizzy and could not stand up. She was advised to rest. She took some Olanzapine and Metoprolol. She put the baby in the basket next to the bed and went to sleep. The complainant woke to find the appellant holding her down with her hands pinned alongside her head. The appellant was engaging in penile-vaginal sexual intercourse with her. She yelled and told him to get off, which he did. The complainant got out of bed, and moved to the corner of the bedroom, very distressed. The appellant was apologetic, saying he was sorry. The complainant cried in the corner while the appellant sat on the bed. The complainant grabbed her daughter, went downstairs and slept on the couch.