R v Bland No. Sccrm-01-21 - [2001] SASC 57

R v BLAND
[2001] SASC 57

Court of Criminal Appeal: Doyle CJ, Duggan and Williams JJ

1................ DOYLE CJ...... I would dismiss the appeal against conviction and would dismiss the appeal against sentence. I agree with the reasons given by Duggan J. There is nothing that I wish to add to those reasons.

2................ DUGGAN J..... The appellant was convicted of rape after a trial in the District Court. The information alleged that on 19 June 1999 he had vaginal sexual intercourse with the complainant against her consent. He has appealed against conviction and sentence. The grounds of appeal against conviction include complaints that the trial judge erred in ruling that there was a case to answer at the conclusion of the prosecution case; that he erred in failing to discharge the jury by reason of an allegedly unfair final address by the Crown prosecutor; and that the verdict of the jury is unsafe and unsatisfactory. Other grounds complain of particular passages in the summing-up.

The appellant was 28 years of age at the time of the alleged offence and the complainant was 29. There was evidence that the complainant is intellectually disabled. She also has marked physical disabilities. She was born with cataracts on both eyes and she is now blind in one eye. She was also born with a hole in her heart. She underwent surgery when she was six years of age and suffered brain damage caused by air embolism which arose in the course of the operation. She has some difficulty walking and usually does so with the aid of a walking stick. The operation also resulted in the intellectual disability from which the complainant suffers.
The complainant attended the Regency Park School for the Young Disabled. She was working in a sheltered workshop at the time of this incident and was living with another young woman in a private home where both were supported by care workers.
The appellant and his wife lived next door to the home in which the complainant lived. The complainant said in evidence that on two or three occasions prior to this incident the appellant had fixed things in her home. She said that if anything needed fixing it would be put in a diary. She said the appellant had put in a light globe and fixed a tap on the previous occasions. She said the care workers had asked him to do these jobs.
Then, on the day of the alleged offence, the complainant said she went over to the appellant’s house to ask him to fix a kitchen cupboard. She said one of the care workers told her that the diary contained an entry to the effect that a cupboard needed fixing and the care worker asked the complainant to get the appellant. There were no care workers in the complainant’s house at the time she went to speak to the appellant.
The complainant said in evidence that the appellant’s wife answered the door when she…

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: [2001] SASC 57
Decision Date: 14 March 2001

CaseChat Overview and Summary

In the case of R v Bland, the appellant appealed against both his conviction and sentence for the offence of rape. The trial court had convicted the appellant of having sexual intercourse with the complainant without her consent. The complainant, who was intellectually disabled and had marked physical disabilities, alleged that the appellant had fixed a kitchen cupboard in her home before engaging in sexual intercourse with her without her consent. The appellant argued that the trial judge had erred in several respects, including finding that there was a case to answer, failing to discharge the jury due to an allegedly unfair final address by the Crown prosecutor, and that the verdict was unsafe and unsatisfactory. The appellant also appealed against his sentence.

The court considered the grounds of appeal against conviction and determined that the trial judge was correct in finding that there was a case to answer, as the evidence was capable of supporting a conviction. The court found that the jury was in a position to conclude that the appellant realised that the complainant suffered from an intellectual disability and physical disabilities, and that her lack of protest could be explained by her disabilities. The court also found no error in the trial judge's summing-up and that the prosecutor's final address was not unduly emotive or prejudicial. The court concluded that the evidence provided a sufficient basis for a finding of guilt on the offence charged and dismissed the appeal against conviction.

Regarding the appeal against sentence, the court found that the sentence imposed was appropriate given the seriousness of the offence. The appellant had no previous convictions, but the court considered the seriousness of the allegations and the lack of contrition on the part of the appellant. The court dismissed the appeal against sentence.

Orders