R v Andri No. DCCRM-01-880 - [2002] SADC 51

R v Christopher James Andri
[2002] SADC 51
Judge Sulan
Criminal

The accused, Christopher Andri, is charged with one count of rape, one count of indecent assault and one count of common assault. Throughout the trial, a number of applications were made by Mr Borick for the accused, including a submission of no case to answer and several applications for a permanent stay. I refused the applications. Mr English for the prosecution applied for a mistrial. I refused that application. I now publish reasons for my decisions.
The alleged offences took place on the evening of the 18^th November 2000, at the accused’s home where he lived with his parents. The occasion was a birthday party for the accused and during the course of the evening, one of the guests telephoned an entertainment agency and requested the services of a striptease dancer.
At that time, the complainant, Paula Louise Martin, was a striptease dancer. She was contacted by her agent, Lorrenzo Varricchio (“Varricchio”) and she attended at the party at about 11 pm. The offences of rape and indecent assault are alleged to have occurred during the course of Ms Martin’s striptease performance. The alleged assault took place shortly after the performance had concluded. She described her performance in some detail, which included the participation of the accused. In summary, she described how, after she commenced her dance routine, she removed her dress and then crouched in front of the accused, who was seated on a chair. She had her back to him and started to remove her bra. The accused was grabbing at her bra. She said that she turned around and asked him what he was doing and said “Please don’t do that”. The accused stopped and sat back. She then sat on his knees facing him, with her bra still on, but undone. She was wearing only a g-string on the lower part of her body. She said the accused’s hands were moving and he was grabbing at her. There was a wrestle with his hands and she moved them to her waist. She gave the following evidence (page 50) :
"QWhat did you do to indicate where he could put his hands then.
ABy grabbing his hands and him being stronger than me, he’s put them up, I have put them down, he’s put them up, I have put them down, he’s put them up, sort of thing, sort of like this. I have just left them there then continued to undo my bra and get away from him (INDICATES).
HIS HONOUR
QWhen you say ‘put them up’ and ‘put them down’, where was he actually putting his hands.
AOn my breasts, and he was actually really grabbing at them.
QOn the outside of your bra.
ANo, on the inside of my bra.
QSo he was putting his hands into your bra.
AYes, because I had undone it by then.
QAnd you were, what, putting his hands down, putting them where.
AI was trying…

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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Details

Case: [2002] SADC 51
Decision Date: 22 April 2002

CaseChat Overview and Summary

The accused, Christopher Andri, is charged with one count of rape, one count of indecent assault and one count of common assault. The alleged offences took place at a birthday party for the accused, where a striptease dancer, Paula Louise Martin, was present. The offences are alleged to have occurred during the course of Ms Martin’s striptease performance. At the close of the prosecution case, the accused’s counsel submitted that the trial is unfair and that the court should direct an acquittal, permanently stay the proceedings, or order a mistrial. The submissions were rejected. The court held that the criticisms made of the prosecution case were matters to be determined by the jury and that the evidence of the complainant, if accepted by the jury, could lead to a verdict of guilty. The court also held that the accused was not deprived of a fair trial by the conduct of the prosecution, and that the trial should proceed in the ordinary way. The accused was found guilty of all charges.

Orders