R v Coutts - [2013] SASCFC 143

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v COUTTS
[2013] SASCFC 143
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice Vanstone and The Honourable Justice Blue)
20 December 2013
CRIMINAL LAW - EVIDENCE - CONFESSIONS AND ADMISSIONS - STATEMENTS - RECORDS OF INTERVIEW - DISCRETION TO EXCLUDE
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - DIRECTIONS TO JURY
Appeal against convictions - appellant found guilty by jury of eight counts of rape and one of assault - complaint that trial judge wrongly declined to exclude record of interview with police - complaint that judge wrongly confined the "real issue" in relation to the rape charges to that of consent - complaint that judge's directions to jury going to use of evidence on one count with respect to the others were inadequate - whether any such direction required - whether propensity reasoning available - complaint that inadequate directions were given as to the use of evidence of uncharged acts - consideration of s 34P and s 34R Evidence Act 1934 (SA).
Held: appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 353; Summary Offences Act 1953 (SA) s 79A; Evidence Act 1929 (SA) s 34P, 34R, referred to.
Hargraves v The Queen (2011) 245 CLR 257; Alford v Magee (1952) 85 CLR 437; KRM v The Queen (2001) 206 CLR 221; R v Tedesco (2003) 85 SASR 66; R v HS (2004) 90 SASR 28, considered.

R v COUTTS
[2013] SASCFC 143
Court of Criminal Appeal: Sulan, Vanstone and Blue JJ

SULAN & BLUE JJ: We have had the opportunity to consider the draft reasons of Vanstone J. We agree with her reasons, subject to our observations which follow, and agree that the appeal should be dismissed. We add the following observations.
Grounds 4 and 5 of the appeal are that the trial Judge erred in his directions to the jury as to the permissible and impermissible use of the charged acts in relation to another charged act, and that he erred as a matter of law in failing to direct the jury adequately as to the permissible and impermissible use of the evidence of uncharged acts and/or discreditable conduct in relation to the charged acts.
The complainant gave evidence of other acts and conduct allegedly committed by the appellant during the course of their relationship, which were not the subject of any charge. The events described by the complainant were forced anal and oral sexual intercourse. The prosecution led the evidence to establish the degree of dominance that the appellant exercised over the complainant to explain why she submitted to the appellant. That evidence was evidence of discreditable conduct.
The evidence of each of the charged rape offences is also evidence of discreditable conduct, and is cross-admissible. It was accepted, both at trial and on appeal, that the evidence is cross-admissible.
In summing up, the Judge directed the jury as follows:
I will not…

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 Coutts

Details

AGLC: R v Coutts [2013] SASCFC 143
Case: [2013] SASCFC 143
Decision Date: 20 December 2013

CaseChat Overview and Summary

The appellant, R v Coutts, was convicted by a jury of eight counts of rape and one count of assault. The appeal concerned the trial judge's decision not to exclude a record of interview with the police, and alleged deficiencies in the directions given to the jury regarding the use of evidence. The appeal was heard by Sulan, Vanstone, and Blue JJ.

The legal issues before the court were whether the trial judge erred in admitting the record of interview, whether the "real issue" in relation to the rape charges was confined solely to consent, and whether the judge's directions to the jury concerning the use of evidence from one count in relation to others were inadequate. Specifically, the court considered whether propensity reasoning was available and if directions regarding the use of evidence of uncharged acts were sufficient, referencing sections 34P and 34R of the Evidence Act 1934 (SA).

The court reasoned that the trial judge's directions were adequate. The judge had instructed the jury not to consider conduct underlying counts 11 and 12 in relation to the rape charges and to treat each count separately. The court found that the evidence relating to the sexual charges was admissible with reference to the other sexual charges, justifying a single trial. The judge provided a general propensity warning to guard against the appellant being judged on unconventional sexual practices. The court held that the jury was entitled to use evidence from certain counts, particularly the recorded incident, to assess the complainant's credibility and apply that assessment to other charges, and that the absence of more specific directions on this point could only have benefited the appellant.

The court concluded that none of the grounds of appeal had substance and dismissed the appeal.

Orders

Orders of the court

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Background

Background to the litigation

He appeals against the convictions arguing that the trial judge wrongly declined to exclude from evidence an interview with police and that there were deficiencies and omissions in the directions given to the jury by the trial judge. Having heard an extensive argument in support of the grounds by Mrs Shaw QC I have determined that none of the grounds is of substance. I would dismiss the appeal.Background Throughout the time when the offences were said to have occurred the complainant (V) was living with the appellant. She was a woman in her early 40s and he was seven or so years younger. V had previously worked as a prostitute and was still undertaking some work in a massage parlour. The relationship commenced at about the end of 2008 and in about December of that year the appellant and V became engaged to be married. V said that the first major argument in the relationship occurred on New Year’s Eve 2008. The prosecution presented the case as one of multiple acts of violent rape and physical abuse spanning a period of about four months. It ended early in May 2009 when it was said that the appellant attacked V and she ran out of the house for help. The charges of rape were, variously, allegations of fellatio, vaginal intercourse and anal intercourse. They were often accompanied by acts of violence. In relation to counts 6, 7 and 8 V told the jury that, apprehending a violent episode, she turned on the recording function of her mobile phone, placed it under her pillow on the bed, and then recorded what turned into an extremely violent episode culminating in anal sexual intercourse. The two rape charges for which the appellant was acquitted represented occasions when V gave evidence of violence towards her by the appellant, but on which she failed to give evidence of sexual intercourse, either because she passed out or because she simply could not remember. The acquittals of the appellant on those counts were directed by the judge and cannot represent any finding by the jury of a deficit in her credibility. The acquittal of the appellant on count 11, the first instance of assault, was explicable on the basis that V had said that she could not remember whether she remained conscious for all of that incident. The appellant gave evidence in his own defence. The judge summarised the defence case by recounting that:Mr Coutts said in his evidence all sex was free and willing including anal sex and that no threats to her or anyone else were involved.In relation to the recorded incident the appellant said that it was agreed in advance that there would be a role play of “master and slave” involving (consensual) domination. He said that they had agreed upon what was referred to as a “safety word” which could be uttered by either if he or she wished to stop. Following upon the violent incident culminating in count 12, the appellant was arrested by police. He was in custody at a police station when the investigating officers approached him in relation to the further allegations of rape, of which they had by then learned. Before interviewing him the police told him he was under arrest for “sexual assault”.Recorded interview with police

Evidence

Evidence Before The Court

The appellant relies on the terms of s 34P Evidence Act 1929 headed “Evidence of discreditable conduct” and s 34R(1) dealing with trial directions. I set out those sections:34P—Evidence of discreditable conduct(1) In the trial of a charge of an offence, evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than conduct constituting the offence (discreditable conduct evidence)—(a)cannot be used to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct; and(b)is inadmissible for that purpose (impermissible use); and(c)subject to subsection (2), is inadmissible for any other purpose.(2) Discreditable conduct evidence may be admitted for a use (the permissible use) other than the impermissible use if, and only if—(a)the judge is satisfied that the probative value of the evidence admitted for a permissible use substantially outweighs any prejudicial effect it may have on the defendant; and(b)in the case of evidence admitted for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue—the evidence has strong probative value having regard to the particular issue or issues arising at trial.(3) In the determination of the question in subsection (2)(a), the judge must have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose.(4) Subject to subsection (5), a party seeking to adduce evidence that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue under this section must give reasonable notice in writing to each other party in the proceedings in accordance with the rules of court.(5) The court may, if it thinks fit, dispense with the requirement in subsection (4).…34R—Trial directions(1) If evidence is admitted under section 34P, the judge must (whether or not sitting with a jury) identify and explain the purpose for which the evidence may, and may not, be used.… The premises underlying the ground are not strictly accurate. The judge directed the jury that it was not permitted to take into account the conduct forming the basis of counts 11 and 12 in relation to the rape charges. The judge also directed the jury that each count was charged as a separate offence and had to be treated separately on its merits. The judge gave a very general propensity warning arising from the “type of evidence” that was before the jury. That was aimed, as I read it, against marking the appellant down, as it were, on account of somewhat unconventional sexual practices. In my opinion nothing more was required. All the evidence relating to the sexual charges was admissible with reference to the other sexual charges. That was why there was one trial on all those charges. Had there not been cross-admissibility an application for separate trials would have succeeded. There was no such application. The non-propensity uses of the evidence – which may be conveniently summarised as going to credibility – were obvious. Particularly in the circumstances of the present case, where the complainant’s evidence on counts 6, 7 and 8 was fortified by the recording of the event, the jury was entitled to use that evidence to draw conclusions about the complainant’s credibility, which they were entitled to import to the other charges. The fact that a direction pointing this out was not given and that other comparable directions regarding other charges were not given could only have advantaged the appellant.

Decision

Reasons for decision

I consider that this ground contains no argument of any substance.Conclusion I have reached the view that none of the grounds of appeal contain arguments of substance. Although several of the grounds of appeal were couched as raising matters of law, even the most superficial examination shows that they were not. The appeal should be dismissed.

Ratio Decidendi

Legal Principle Established

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