R v Blobel No. Sccrm-00-180

[2000] SASC 322

R v BLOBEL

[2000] SASC 322

Court of Criminal Appeal:  Prior, Debelle and Lander JJ

1................ PRIOR J:....................... The appellant was found guilty of two counts of rape of his wife.  As to the first count, the appellant’s case was that the occasion the subject of the charge related to a time when he was not at home.  An alibi notice had been served upon the prosecution.  The appellant claimed that he returned home in the early hours of the following morning, when consensual sexual intercourse occurred.  In the course of cross-examining the appellant’s wife, the appellant’s counsel failed to make clear that, so far as he spoke of the night of 18 October 1999, he meant only until midnight on that date.  When the appellant gave evidence he deposed to consensual sexual conduct during the early hours of 19 October and no sexual contact of any sort before midnight on 18 October.  His evidence was that he did not return to the matrimonial home until after midnight, calling three witnesses to support his version of events.

1. The trial judge, doubtless confused by counsel’s cross-examination of the appellant’s wife, was of the view that counsel had put one version to the victim but elicited a different one in his examination of the appellant.  Counsel wrongly agreed with the trial judge’s proposition, that the night of 18 October meant from dusk on that day to dawn on 19 October.  Counsel also failed to adopt the trial judge’s suggestion to have the appellant affirm that his instructions had always been that consensual sexual intercourse had occurred during the early hours of 19 October.  Against these events, the prosecution suggested that the appellant had changed his story and created a false alibi.  The judge’s directions were consistent with what the prosecution put.  His Honour also directed the jury that a conviction was open whether the intercourse complained of occurred on the evening of 18 or early in the morning of 19 October.  The verdict of the jury was consistent with it believing the evidence of the complainant and disbelieving what the appellant said in his evidence.

2. It is plain that the appellant’s counsel, at trial, failed to adequately put his client’s instructions to the appellant’s wife.  That, together with the concessions made by counsel, means that the appellant did not receive a fair trial.  A miscarriage of justice has occurred because of mismanagement by the appellant’s counsel[1].  We therefore allow the appeal, set aside the conviction and order a retrial.  Bail to continue as before.

   [1]      R v Oliverio (1993) 61 SASR 354 at 357; R v Scott (1996) 185 LSJS 436 at 451

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1. R v Oliverio (1993) 61 SASR 354 at 357; R v Scott (1996) 185 LSJS 436 at 451