(The Honourable Justice Bleby, The Honourable Justice Gray and The Honourable Justice Anderson)
11 March 2010
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT
CRIMINAL LAW - PROCEDURE - VERDICT - OTHER MATTERS
CRIMINAL LAW - PROCEDURE - COURSE OF EVIDENCE, STATEMENTS AND ADDRESSES - ADDRESSES - FINAL ADDRESS OF COUNSEL FOR CROWN
FAMILY LAW AND CHILD WELFARE - CHILD WELFARE UNDER STATE LEGISLATION - CRIMES AND OFFENCES BY CHILDREN - JURISDICTION OF CHILDREN'S COURTS - SOUTH AUSTRALIA
Appeal against conviction for rape - information alleged offence took place after accused became an adult – cross-examination of the complainant raised possibility that alleged offence took place whilst accused was a youth – at close of the prosecution case defence counsel applied for a stay of proceedings seeking to have the charge dealt with by the Youth Court – application declined by trial Judge and special verdict from jury sought.
Consideration of jurisdiction of District Court and Youth Court – whether District Court had jurisdiction to enter a judgment – consideration by jury of accused’s age – consideration of what burden of proof jury had to be satisfied of with respect to accused’s age.
Consideration of questions put to jury in seeking a special verdict – whether special verdict appropriate in the circumstances – consideration of appropriate standard of proof in answering questions.
Consideration of prosecutor’s address and trial Judge’s summing up – whether prosecutor’s comments on complainant’s evidence appropriate – whether adequate directions made by trial Judge.
Held (per Bleby J, Anderson J agreeing): Appeal dismissed – jury properly directed to assess accused’s age at time of offence on the balance of probabilities as a matter going to the District Court’s jurisdiction – trial Judge’s directions appropriate in the circumstances of the questions put to jury in seeking a special verdict – prosecutor’s comments in closing address appropriate in the circumstances.
Held (per Gray J, dissenting): Appeal allowed - jury misdirected when asked to determine the age of the defendant at the time of the alleged offence on the balance of probabilities - substantial consequences flowing from age of defendant at time of offence - date of offence material particular requiring proof beyond reasonable doubt - consideration of materiality of particulars - age of defendant as matter going to the District Court's jurisdiction also to be established beyond reasonable doubt - questions posed to jury characterised as special questions not special verdicts - no power in Court to accept return of majority answer by jury to special questions.
[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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Details
AGLC
R v Abdulla [2010] SASC 52
Case
[2010] SASC 52
Decision Date
CaseChat Overview and Summary
The defence counsel argued that the prosecution had failed to prove its case beyond reasonable doubt and made an application for a stay of proceedings to be heard in the absence of the jury. This application was based on the possibility that the offence may have been committed before the defendant turned 18. The application was refused by the trial Judge. The jury were given written questions to consider, the first being whether they were satisfied beyond reasonable doubt that an act of sexual intercourse had taken place as alleged by the complainant. If they were satisfied of that fact, the jury were to consider whether they were satisfied on the balance of probabilities that the accused was over the age of 18 years at the time. The jury returned a guilty verdict. The defendant appealed against his conviction, contending that the trial Judge erred in seeking a special verdict and in the directions given to the jury. The appeal was dismissed.
The court considered the issues of the trial Judge's jurisdiction to hear the matter and whether the District Court had jurisdiction to enter a judgment. The court found that the trial Judge had jurisdiction to hear the matter and that the District Court had jurisdiction to enter a judgment. The court also found that the trial Judge's directions to the jury were appropriate and that the special verdict was appropriate in the circumstances. The court found that the prosecutor's comments on the complainant's evidence were appropriate and that the trial Judge had given adequate directions to the jury. The appeal was dismissed.
Orders
Orders of the court
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Background
Background to the litigation
The appellant appeals against his conviction in the District Court after a trial by jury of one count of rape. The grounds of appeal concern two issues. The first is the taking of a special verdict by the trial Judge as to whether an act of intercourse occurred, and if so, whether at the time the accused was over the age of 18. The second concerns part of the prosecutor’s address to the jury said to reverse the onus of proof and the alleged inadequacy of the trial Judge’s directions in respect of that issue.The facts The appellant was charged on information with the following offence:Statement of OffenceRape. (Section 48 of the Criminal Law Consolidation Act, 1935).Particulars of OffenceGilbert William Vincent Abdulla between the 24th day of January 2003 and the 10th day of April 2006 at the cemetery at Gerard, had anal sexual intercourse with [the male complainant], without his consent.The maximum penalty for rape is imprisonment for life. The appellant was born on 23 January 1985. He thus turned 18 on 23 January 2003. It was the prosecution case that there was only one offence which occurred at a time after the appellant turned 18. In his evidence the complainant was unable to be specific about the date on which the alleged rape occurred. In examination-in-chief he described the time when it occurred by reference to other events, the dates of which were established. That evidence was all consistent with the alleged rape having occurred within the period specified in the Information. It was only in cross-examination that some doubt was cast on that by the complainant’s concession that the alleged rape may have occurred by reference to other events that occurred at some time before the appellant turned 18. After the close of the prosecution case and after he had indicated that the appellant would call no evidence, counsel for the appellant made an application in the absence of the jury to stay proceedings as an abuse of process on the ground that the appellant was deprived of procedural fairness by failing to have the charge dealt with by the Youth Court. In particular, he was denied the possibility of being sentenced upon principles binding the Youth Court rather than principles relevant to the sentencing of an adult in the District Court. The trial Judge refused the application and decided to seek a special verdict from the jury. Towards the end of the summing up the jury were handed, by way of an aide-memoire, written questions that they would be asked, depending upon the answers given at each stage. The written questions were as follows:VERDICTQuestion 1Are you satisfied beyond reasonable doubt that an act of sexual intercourse took place as alleged by the complainant?If NO à Verdict (not guilty)If YES à question 2Question 2Are you satisfied on the balance of probabilities that the accused was over the age of 18 years at the time?If NO à no verdict requiredIf YES à Verdict (Guilty or not guilty)Verdict Do you find the accused guilty or not guilty
Evidence
Evidence Before The Court
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Decision
Reasons for decision
BLEBY J
ANDERSON J
I would reject this ground of appeal.Conclusion It follows that, for these reasons, I would dismiss the appeal. This is an appeal against conviction.Introduction The defendant and appellant, Gilbert William Vincent Abdulla, was convicted by majority jury verdict of the crime of rape following a trial in the District Court. It was common ground at trial that the defendant turned 18 years on 23 January 2003. The laying of the information followed a committal proceeding. The information was laid in the District Court charging the defendant as an adult. It is relevant to record that the particulars provided in the information alleged a date range[30] during which it was asserted the offence occurred, commencing the day after the defendant attained his majority. [30] The particularisation of a date range is permissible. As Gummow J pointed out in WGCv The Queen (2007) 233 CLR 66 at [8]: What then is conveyed in s 49(4) [of the Criminal Law Consolidation Act 1935 (SA)] by the term "the date"? In answering that question it would be inappropriate to begin with what might follow from the general proposition that in reckoning time by days ordinarily the law takes no account of fractions of a day. A solar day of twenty-four hours is a division of time. Here, what is to be construed is the statutory expression "the date". It is true that in popular usage "date" may identify a particular day on the calendar. But the term "the date" encompasses more than that, including both a particular point in time at, and a period of time within which, an event or transaction occurs. The information and particulars were as follows:Statement of OffenceRape. (Section 48 of the Criminal Law Consolidation Act, 1935).Particulars of OffenceGilbert William Vincent Abdulla between the 24th day of January 2003 and the 10th day of April 2006 at the cemetery at Gerard, had anal sexual intercourse with [VS], without his consent. Before coming to discuss the issues arising on the appeal, it is convenient to summarise the respective cases of the prosecution and defence.The Prosecution Case The prosecution case was that some time between 24 January 2003 and 10 April 2006, the defendant raped the complainant. The defendant was said to be 18 years of age or older. At the time of the alleged incident, the complainant resided with a relative, spending some time in Barmera and some time in the Aboriginal community, Gerard, near Barmera. The relative with whom the complainant resided was also the defendant’s aunt. According to the complainant, the offence of rape took place when he was living at the house in Gerard. He gave evidence that he was at home watching the animated film “Madagascar”. The complainant was asked by his relative to attend to an errand. The defendant offered to give him a lift in his vehicle. The complainant accepted. According to the complainant, after both he and the defendant entered the vehicle, the defendant drove to the cemetery rather than attending to the errand. On arriving at the cemetery, the defendant told the complainant to get out of the vehicle, which he did. The defendant pulled the complainant’s and his own pants down and proceeded to rape the complainant. It was said that the defendant grabbed the complainant, pushed him over the bonnet of the vehicle and had anal sexual intercourse with him without his consent. The complainant alleged that as the conduct occurred, he wriggled to the side to try to avoid the defendant, but was not successful, as the defendant had a firm grip of his neck and right shoulder and was holding him down. The complainant gave evidence that the conduct caused him pain and he was screaming and swearing and telling the defendant to get off. The rape was said to go on for some time before the defendant stopped. According to the complainant, the rape stopped as the defendant heard a vehicle approaching. The defendant re-entered the vehicle and drove off and the complainant proceeded to walk to the house at Gerard. The complainant gave evidence that when he arrived home, the end of the movie “Madagascar” was playing. The complainant said that he went to bed while others watched the movie “Underworld Evolution”.The Defence Case