R v Blayney

Case [2002] SASC 192

R  v  BLAYNEY & BLAYNEY
[2002] SASC 192

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

  1. DOYLE CJ:           The appellants were each convicted on the verdict of a jury on one count of rape of Ms S.  They were tried jointly.  They appeal against the convictions on grounds that include challenges to the admission of certain evidence, a challenge to a procedural aspect of the trial, challenges to the correctness of directions to the jury and a ground that the verdict is unsafe and unsatisfactory.  As developed, the latter ground raises the question of whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the appellants were guilty.

    Facts

  2. The appellants are brothers.  Hereafter, for convenience, I will refer to them as Erik and Daniel.  The prosecution case was that Erik and Daniel had intercourse with Ms S while she was unconscious as a result of consuming alcohol, or so badly affected by alcohol as to be incapable of consenting to intercourse.

  3. There was no direct evidence as to the alleged intercourse.  Ms S did not remember intercourse occurring.  She did remember some of the surrounding circumstances.  Erik and Daniel said that they had no memory of intercourse occurring, although at trial they accepted that DNA material obtained from Ms S and from her clothing showed that each of them had had intercourse with Ms S at about the relevant time.

  4. I will now summarise the relevant circumstances as briefly as I can.

  5. Daniel was friendly with Ms S.  He invited her and her friend Ms G to join him and Erik at a farm owned by Mr Threadgold.  Daniel drove them to the farm.  Also present were Erik, Mr Threadgold and his girlfriend.  This happened quite late at night on Saturday 23 May 1998.

  6. All except Mr Threadgold began drinking spirits.  They played a card game which involved drinking.  Ms S consumed so much of the spirits that she quickly became grossly intoxicated.  She vomited in front of the others during the card game.  She vomited again in the toilet.  Her clothes were changed for her by her friend Ms G.  It must have been obvious to all of them that she was seriously affected by alcohol.  The others were also affected by alcohol, except for Mr Threadgold.  But they were not as badly affected as Ms S.

  7. Ms S said that she remembered going outside with Erik to get some fresh air.  He helped her walk outside.  She was having trouble walking, and was feeling sick.  She sat on the back seat of Erik’s car, then lay down on the seat.  She was trying not to be sick again.  She felt a hand under her shirt and on top of her bra.  She felt pressure on her stomach.  She felt someone touching her under her underpants.  She did nothing to resist.  She was too unwell to say or to do anything.  She remembered hearing someone say…

Continue reading R v Blayney

Sign in free to access the full text

Details
AGLC
R v Blayney [2002] SASC 192
Case
[2002] SASC 192
Decision Date

CaseChat Overview and Summary

The case of R v Blayney involved two brothers, Erik and Daniel, who were convicted of raping Ms S while she was unconscious due to alcohol consumption. They appealed against their convictions on various grounds, including challenges to the admission of evidence, trial procedures, jury directions, and the safety and satisfaction of the verdict. The court had to determine whether the jury was justified in finding the appellants guilty beyond reasonable doubt based on the evidence presented.

The central legal issues before the court included whether the complaint made by Ms S to her friend Ms G was admissible as evidence, whether it was made at the first reasonably available opportunity, and if the trial judge's directions to the jury regarding intoxication and lies were correct. Additionally, the court examined whether the verdict was safe and satisfactory and whether the trial judge's directions adequately considered the defence's arguments.

In its reasoning, the court found that the complaint made by Ms S was admissible and that it was made at the first reasonably available opportunity. The court acknowledged the difficulty Ms S faced in reporting the incident immediately due to her impaired state and the need to seek clarity from her friend. However, the court determined that the directions given to the jury on intoxication and lies posed a significant risk of misapprehension, potentially leading the jury to place undue emphasis on specific aspects of the evidence. This misdirection could have overshadowed the defence's arguments concerning the intent of the accused. Consequently, the court concluded that a miscarriage of justice had occurred, necessitating the setting aside of the verdict.

In light of the misdirection and the miscarriage of justice, the court ordered a retrial. Despite the passage of four years since the events in question, the court found that the evidence was still capable of supporting a conviction and saw no reason to preclude a retrial. The appeal was allowed, and the convictions were quashed, with an order for a retrial issued.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

DOYLE CJ: The appellants were each convicted on the verdict of a jury on one count of rape of Ms S. They were tried jointly. They appeal against the convictions on grounds that include challenges to the admission of certain evidence, a challenge to a procedural aspect of the trial, challenges to the correctness of directions to the jury and a ground that the verdict is unsafe and unsatisfactory. As developed, the latter ground raises the question of whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the appellants were guilty.Facts The appellants are brothers. Hereafter, for convenience, I will refer to them as Erik and Daniel. The prosecution case was that Erik and Daniel had intercourse with Ms S while she was unconscious as a result of consuming alcohol, or so badly affected by alcohol as to be incapable of consenting to intercourse. There was no direct evidence as to the alleged intercourse. Ms S did not remember intercourse occurring. She did remember some of the surrounding circumstances. Erik and Daniel said that they had no memory of intercourse occurring, although at trial they accepted that DNA material obtained from Ms S and from her clothing showed that each of them had had intercourse with Ms S at about the relevant time. I will now summarise the relevant circumstances as briefly as I can. Daniel was friendly with Ms S. He invited her and her friend Ms G to join him and Erik at a farm owned by Mr Threadgold. Daniel drove them to the farm. Also present were Erik, Mr Threadgold and his girlfriend. This happened quite late at night on Saturday 23 May 1998. All except Mr Threadgold began drinking spirits. They played a card game which involved drinking. Ms S consumed so much of the spirits that she quickly became grossly intoxicated. She vomited in front of the others during the card game. She vomited again in the toilet. Her clothes were changed for her by her friend Ms G. It must have been obvious to all of them that she was seriously affected by alcohol. The others were also affected by alcohol, except for Mr Threadgold. But they were not as badly affected as Ms S. Ms S said that she remembered going outside with Erik to get some fresh air. He helped her walk outside. She was having trouble walking, and was feeling sick. She sat on the back seat of Erik’s car, then lay down on the seat. She was trying not to be sick again. She felt a hand under her shirt and on top of her bra. She felt pressure on her stomach. She felt someone touching her under her underpants. She did nothing to resist. She was too unwell to say or to do anything. She remembered hearing someone say “Cut it out, you’ve just had a kid.” She did not know who said that. As it happened, Erik’s girlfriend had given birth to a child just a few days before. Then she must have fallen asleep. She next remembered hearing her name spoken, and someone asked her to move. She was very groggy. She wriggled a bit and her jeans were pulled up. She did not know who did that. She woke up next morning about 8.30am. She was still in the car. Her shirt was undone. Her pants were wet and smelt of semen. She felt very unwell. She could not remember much from the night before.

Evidence

Evidence Before The Court

The evidence of the conversation with Erik at his home was led, excluding the relevant question and answer. Evidence of the recorded interview with Erik was also led, without any objection, it having been agreed that part of that conversation would not be led in evidence. However, as will emerge, there is now a complaint about part of that evidence.Evidence of complaint The Judge at the first trial ruled, before any evidence was taken, that Ms S and Ms G could give evidence about the telephone conversation between them on Sunday 24 May 1998. He gave his ruling on the basis of depositions tendered at the preliminary hearing. The Judge published detailed reasons for the ruling. In her statement Ms S was rather vague about the conversation. She said that she told Ms G “I thought something might have happened to me, I don’t think I said that I thought I may have been raped.” In the circumstances, it is not surprising that she was vague about the conversation nor is the general nature of the conversation surprising. If Ms S was telling the truth, she had little memory of what had happened the night before, and it would have been natural to see if Ms G could, as Ms S said “fill in any of the gaps in my recollection of that night.” Ms G’s statement was rather more detailed and more specific. According to Ms G, Ms S said she thought that Erik was raping her, and that Daniel had started to take over from Erik. Ms G said that Ms S was upset and crying. The Judge rejected a submission that the complaint was not admissible because it was not made at the first reasonably available opportunity. I agree with the reasons that the Judge gave for so ruling. In brief, when Ms S woke up she was in a difficult situation. Her memory of what had happened was patchy. It is understandable that she might not have wanted to challenge or to offend Daniel or Erik, until at least she had had a chance to think about things. Ms S was barely acquainted with Mr Threadgold and his girlfriend, and it is understandable that she would not wish to confide in them. There are other factors to which the Judge refers, and I am content to adopt his reasons. I agree also with the Judge’s conclusion that what was said in the conversation amounted to a complaint. What Ms S said to Ms G was in the nature of a complaint, even if there was no specific allegation of rape. It suffices that a grievance was expressed, and that was clearly done. Once again, I am content to adopt the reasons given by the Judge for so deciding. His reasons are reported at [2001] SASC 211. On the appeal, the points argued before the Judge at the first trial were argued very briefly, and I am content to deal with them equally briefly as I have done. A further point was taken. At the third trial, it came out in the cross-examination of Ms S that before she went home and telephoned Ms G, she passed quite close to the local police station. This was not raised when the Judge made his ruling at the first trial. At the third trial some point was made of this by way of cross-examination of Ms S. But, significantly, the Judge at the third trial was not asked to revisit the question of the admissibility of the complaint. Of course, Ms S had given her evidence by then, but Ms G had not yet given evidence. Be that as it may, on appeal it was submitted that this further evidence undermined the ruling made by the Judge at the first trial, and should have led to the conclusion that the complaint was not made at the first reasonably available opportunity.

Decision

Reasons for decision

LANDER J WILLIAMS J
For those reasons I would reject this submission.Conclusion In my opinion the verdict should be set aside. The directions as to lies and directions on intoxication give rise to a real risk that the jury would have put undue emphasis on one aspect of the evidence, and may not have fully appreciated the significance of the defence case in relation to the issue of the intent of the accused. For those reasons there has been a miscarriage of justice, and that is why the verdict must be set aside. I would order a retrial. It is unfortunate that it is now four years since the events in question. Nevertheless, there is evidence capable of supporting a conviction, and I find no reason not to order a retrial. I agree for the reasons given by Doyle CJ that this appeal should be allowed and there should be an order for re-trial. I agree.

Ratio Decidendi

Legal Principle Established

Established by: LANDER J, WILLIAMS J

Full text does not contain this section.