R v Colquhoun - [2009] SASC 138

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Permission to Appeal)
R v COLQUHOUN
[2009] SASC 138
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Anderson and The Honourable Justice David)
21 May 2009
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - CONDUCT OF PROSECUTOR OR PROSECUTION
Appellant charged with rape – evidence given by appellant’s foster mother at odds with evidence of other witnesses – prosecutor had called foster mother as a witness – suggestion made by prosecutor in closing address evidence of appellant’s foster mother was biased in favour of appellant – whether prosecutor impermissibly impeached evidence of own witness.
Held: Prosecutor did not impermissibly impeach evidence of witness. Absent a declaration that the witness was hostile, there was no opportunity for the prosecutor to confront or cross-examine the witness about her evidence.

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION
Complainant identified appellant as person at the door of her room following rape – inference to be drawn that the person at the door was the person who had raped complainant – whether trial judge erred in not instructing jury that due to tiredness and intoxication of complainant her perception of time may have been affected.
Held: Trial judge tailored direction appropriately.
Trial judge directed jury that there was no need to consider whether the complainant had a motive to lie – counsel for the appellant cross-examined the complainant on this point – prosecution did not ask rhetorical question “why would the complainant lie?” – whether trial judge impermissibly removed consideration of motive to lie from the jury.
Held: Although both trial judge and counsel for the appellant failed to distinguish between rhetorical question put by prosecutor and motive to lie raised in cross-examination, the question of motive to lie was raised so faintly that the direction given by the trial judge would not have caused a miscarriage of justice.
Use to which complaint may be put in cases involving sexual assault – whether trial judge suggested that complaint could amount to corroboration of the complainant’s evidence.
Held: On a proper reading of the trial judge’s summing up, it is clear that the trial judge did not instruct the jury that the evidence of complaint could be used to corroborate the complainant’s evidence.

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE
Appellant argued that verdict was unreasonable or insupportable having regard to the evidence.
Held: It was open to the jury on the whole of the evidence to be satisfied beyond reasonable doubt that the appellant was guilty of the offence.
Held: Permission to appeal conviction refused on all grounds.
Criminal Law Consoldiation Act 1935 (SA) s 48; Evidence Act 1929 (SA) s 27; Evidence Act 1995 (NSW) s 38, referred to.
R v Kennedy (2000) 118 A Crim R 34, distinguished.
R v Macfie (No 2) (2004) 11…

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.

Continue reading R v Colquhoun

Details

AGLC: R v Colquhoun [2009] SASC 138
Case: [2009] SASC 138
Decision Date: 21 May 2009

CaseChat Overview and Summary

The appellant was charged with the offence of rape, stemming from an incident at a birthday party held on 6 March 2007. The prosecution's case relied heavily on the testimony of the complainant, V, who claimed she was raped by the appellant while she was intoxicated and sleeping on a bed in a rumpus room. The defence contested the credibility of V's evidence, arguing it was unreliable due to her level of intoxication and the lack of corroborative evidence. The appeal focused on several issues, including the conduct of the prosecutor during the closing address, the trial judge's directions regarding identification of the offender, the motive for V to lie, and the handling of V's complaint to Lyndon Brooks. Additionally, the appellant argued that the jury's verdict was unreasonable given the evidence presented.

The court examined whether the prosecutor's comments during the closing address improperly impeached the credibility of the appellant's foster mother, who was called as a witness by the prosecution. The court also assessed the trial judge's instructions to the jury concerning the identification of the offender, the potential motive for V to lie, and the relevance and weight of V's complaint to Lyndon Brooks. Furthermore, the court considered the overall reliability and sufficiency of the evidence to support the jury's verdict, given the appellant's denial of the charges and the inconsistencies in V's account.

In its reasoning, the court found that the prosecutor's comments, while perhaps not ideal, did not constitute an improper impeachment of the foster mother's evidence. The court also determined that the trial judge's directions to the jury were appropriate and did not prejudice the appellant's right to a fair trial. The court held that the evidence, including V's testimony and the circumstances of the party, was sufficient for the jury to reach the verdict they did. Consequently, the court refused permission to appeal on all grounds, upholding the conviction.

The final orders of the court were to refuse permission to appeal on all grounds, thereby upholding the conviction of the appellant for the offence of rape.

Orders

Orders of the court

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Background

Background to the litigation

The appeal involves complaints about:·the closing address of the Crown prosecutor in impermissibly impeaching the credit of a Crown witness;·the trial judge’s directions on the question of identification of the offender;·the trial judge’s directions on a motive for V to lie; and·the trial judge’s directions in relation to a complaint made by V to Lyndon Brooks.The appellant also argues that having regard to the evidence, the verdict of the jury was unreasonable or could not be supported.Background It was common ground that on the evening of 6 March 2007 there was a party held to celebrate the 21st birthday of Scott Brooks. That party was held at the home of his grandparents, Christopher and Irene Brooks. Among those who attended were Scott Brooks’ brother, Lyndon, and V, who at that time was Lyndon’s girlfriend. There were about ten other people at the party, one of whom was the appellant. At the time of the incident the appellant used to sleep at the back of the house in a rumpus room with a bar and pool table, which was used as a games room but also contained a bed for him. It was clear from the evidence at trial that during the course of the evening a lot of alcohol was consumed by a number of people and, in particular, V. V gave evidence that during the course of the evening she drank a significant amount of vodka and was so drunk she could remember waking twice in the rumpus room on the appellant’s bed, but could not actually remember going to bed the first time. On the first occasion she awoke to find that someone was inside her leggings, but she “pushed the hand away” and told that person to stop. She assumed that the person was her boyfriend. She then went back to sleep. On the second occasion she awoke to find that her leggings had been pushed down to her knees and that her vagina was being penetrated by an object. That evidence is the subject of the charge. The person who was penetrating her was behind her and she once again assumed that it was her boyfriend and told him to stop. However, after she felt the person get off the bed, she opened her eyes and rolled over and identified the appellant leaving the rumpus room through the sliding door. Also present in the rumpus room at the same time that this was happening were Lyndon Brooks and a person called Derek Tyndall, who were both asleep. V gave evidence that immediately after the incident, and after she had identified the person who had penetrated her as the appellant, she first approached Derek Tyndall but could not wake him up. V then approached her boyfriend, Lyndon Brooks, but he was intoxicated and asleep. She could not remember exactly what she said to him but he was not reacting. At this time Christopher and Irene Brooks and Scott Brooks were asleep in the house. Having failed to communicate with Derek Tyndall or Lyndon Brooks, V gave evidence that she went inside the house from the rumpus room and found Scott Brooks, who was in bed asleep. She spoke to him but he was also intoxicated and asleep. V said she ended up falling asleep in bed with Scott Brooks. She said that after she awoke the next morning, she eventually left the house with Lyndon Brooks and subsequently made a complaint to him implicating the appellant.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

DAVID J

I would refuse permission to appeal on this ground.Conclusion I would refuse permission to appeal on all grounds.

Ratio Decidendi

Legal Principle Established

Established by: DAVID J

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