R v Crafter - [2019] SASCFC 25

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v CRAFTER
[2019] SASCFC 25
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Kelly and The Honourable Justice Hinton)
21 March 2019
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION
CRIMINAL LAW - EVIDENCE - COMPLAINTS
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - DIRECTIONS TO JURY
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY - PROPENSITY EVIDENCE - EVIDENCE OF UNCHARGED ACTS
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
CRIMINAL LAW - EVIDENCE - COMMENT ON FAILURE TO GIVE EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - PARTICULAR CASES - RAPE AND SEXUAL ASSAULT
Appeal against conviction – appellant convicted by unanimous verdict of jury of one count of rape – whether the trial Judge failed to direct in accordance with the requirements of section 34M(4) of the Evidence Act 1929 (SA) – whether the trial Judge misdirected the jury in relation to sections 34R and 34P of the Evidence Act 1929 (SA) in respect of the uncharged act – whether evidence given by the complainant of lack of consent was wrongly admitted – whether the trial Judge misdirected the jury in relation to the intoxication of the complainant – whether the failure to direct the jury as to alternative pathways to guilt given the prosecution address gave rise to uncertainty as to whether the verdict was lawfully reached – whether the trial Judge undermined the defence case amounting to a miscarriage of justice – whether the trial Judge misdirected the jury as to the appellant’s right to silence – whether the verdict was unsafe and unsatisfactory.
Held, per Kelly J (Kourakis CJ and Hinton J agreeing):
1. With respect to grounds 1, 2, 3, 7 and 9, the appeal is dismissed.
2. With respect to grounds 4, 5, 6 and 8, permission to appeal is refused.
Held, per Kelly J (Kourakis CJ agreeing):
1. The Judge’s directions must be seen in the light of the actual issues which arose at trial. There was no issue at trial that the complaint related to anything but the act of sexual intercourse that was the subject of the charge. There is no requirement that when directing the jury pursuant to s 34M(4) the Judge must use any particular form of words.
2. The evidence of the uncharged act did not show a propensity to offend. Properly understood, the prosecutor’s remark did not invite the jury to engage in propensity reasoning. The Judge’s direction as to the contextual relevance…

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 Crafter

Details

AGLC: R v Crafter [2019] SASCFC 25
Case: [2019] SASCFC 25
Decision Date: 21 March 2019

CaseChat Overview and Summary

The appeal concerned a conviction for rape, brought by the appellant against the Crown. The central dispute revolved around alleged misdirections by the trial judge to the jury concerning the complainant's intoxication, the admission of her evidence of non-consent, and the application of provisions within the *Evidence Act 1929* (SA) relating to complaints and propensity evidence. The appeal was heard by the Full Court of the Supreme Court of South Australia.

The legal issues before the court included whether the trial judge failed to adequately direct the jury in accordance with section 34M(4) of the *Evidence Act 1929* (SA) regarding the complainant's complaint, and whether the judge misdirected the jury concerning sections 34R and 34P of the same Act in relation to evidence of uncharged acts. Further issues were whether the complainant's evidence of lack of consent was wrongly admitted, whether the judge misdirected the jury on the effect of the complainant's intoxication on her conduct and credibility, and whether the verdict was unsafe or unsatisfactory due to alleged uncertainty in how it was reached or a miscarriage of justice caused by the judge undermining the defence case or misdirecting on the right to silence.

The court dismissed the appeal. Regarding the admission of the complainant's evidence of non-consent, the court found it was proper to elicit this evidence as the prosecution was required to exclude any reasonable possibility of consent, and the complainant was conscious at various stages. On the issue of intoxication, the court found the trial judge's directions were extensive and adequately addressed the impact of intoxication on the complainant's reliability and conduct, including the possibility of reduced inhibitions. The court also considered that the evidence of a petting incident was contextual to the act of intercourse and not a separate uncharged act for the purposes of section 34P, and that the directions given regarding the complainant's complaint under section 34M(4) were appropriate given the specific circumstances of the case, where delay in complaining was not the central issue.

Ultimately, the court concluded that no error of fact or law had been identified that warranted intervention, and after an independent assessment of the evidence, was satisfied that the conviction was open to the jury. The appeal was therefore dismissed.

Orders

Orders of the court

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Background

Background to the litigation

On the appeal, the appellant seeks permission to file an additional ground and seeks permission to appeal in respect of the three grounds refused by the single Judge.Background The offence for which the appellant was convicted involved an act of vaginal sexual intercourse committed against the complainant, a woman whom the appellant had met earlier in the evening before the offence occurred. The complainant was a Canadian national who was in Australia at the relevant time as part of her university studies. She had arranged to rent a room at premises in Tusmore Avenue, Leabrook for a short period of two weeks prior to her travelling to Sydney and then home to Canada. On the afternoon of 3 September 2016, the complainant arrived in Adelaide from Whyalla by bus. She was picked up and driven back to the house at Tusmore Avenue by one of the residents of that house, Jack King. At the time, three people resided at the house: Jack King, Dylan Wilson and a third male named Jules. Later that evening, a group of friends of Mr King and Mr Wilson, including the appellant, visited them at the house in Tusmore Avenue, and the group began drinking and socialising during the evening. The complainant joined in socialising with various people who attended the house that evening. She had not met any of them prior to that evening. She also attended a nightclub, “Jive”, however left before the other members of the group and travelled back to Tusmore Avenue in a taxi on her own. There is no dispute that by this time she was heavily intoxicated. During the evening and the early hours of the morning of 4 September 2016, the complainant exchanged a number of text messages with a friend named Kumuena Tekasala. Mr Tekasala was then living in Canada. On 4 September 2016 at 2:03 am she sent Mr Tekasala a message in which she referred to getting a cab home. She did not send any other texts to Mr Tekasala until 10:25 am on 4 September 2016. The complainant’s evidence was that her memory, after arriving home, was patchy. She recalled stumbling down the hallway towards her bedroom. Her next memory was waking up inside her bedroom, lying on her back on the floor between her bed and a desk. She was wearing sweatpants over the top of two pairs of tights, a pyjama top and a hoodie jumper. She became aware of another person in her room as she could hear breathing coming from her right side. Whoever was in her room was grabbing at her breast and petting at her vagina over the top of her clothing. The complainant crawled onto her bed. At this stage, she was still heavily intoxicated and had no idea who was inside her bedroom. She then passed out on the bed. When she awoke for a second time her sweatpants and tights were pulled down underneath her buttocks. She was positioned on the bed on her left side facing the wall. Her legs were on top of one another and she still had the clothing on the top part of her body. She felt thrusting and the sensation that something was penetrating her vagina. Once she became conscious she said “stop”, softly. The thrusting continued and she said “stop” again, with slightly more force. She pushed the person away from her and his penis came out of her vagina. She pulled up her tights and sweatpants and began to cry. The person in the room asked her why she was crying. She responded “I don’t know. I don’t even know who you are”. She was still feeling the effects of the alcohol at this point in time. The complainant said that she then heard snoring and she continued to cry, eventually passing out again.

Evidence

Evidence Before The Court

I would dismiss these grounds of appeal.Ground 4 – Wrongful admission of evidence from the complainant that she had not consented to sexual intercourse This ground is a complaint that the trial Judge wrongly admitted evidence of the complainant that she did not consent to sexual intercourse. The impugned evidence elicited from the complainant was:QAt any stage during that incident that you’ve just described did you consent to that person putting their penis in your vagina.ANo.QAnd in relation to the earlier incident that you’ve talked about, being touched on the breast and touched on the vagina, at any stage did you consent to being touched on the breast.ANo.QAt any stage did you consent to being touched on your vagina.ANo. The appellant complains that, as the prosecution case was always that the complainant was incapable of consenting and not that she did not consent, these questions should not have been permitted. This ground can be dealt with briefly. The prosecution were required to exclude as any reasonable possibility that the complainant had freely and voluntarily consented prior to the conduct which took place in the bedroom. Moreover, the evidence of the complainant revealed that at some stages during the relevant period in the bedroom she did wake up or was awake. Therefore, it was quite proper that evidence from the complainant was elicited that she had not consented at any stage either before or during the events that were the subject of the charge. There is no substance in this ground and I would refuse permission to appeal. I turn now to ground 5.Ground 5 – Misdirection as to intoxication of the complainant By this ground the appellant complains that at no stage in her directions to the jury did the Judge address the critical question on the defence case which was whether the complainant had lost her inhibitions and was now either unwilling or unable, as a result of intoxication or for some other reason, to positively admit her conduct. The appellant complained that the direction on intoxication was limited to the impact of the complainant’s intoxication in respect of her credibility and reliability and that the Judge at no stage squarely directed the jury to consider the effect of intoxication on the complainant’s own conduct that night. In the same context as this complaint, the appellant also complains that the Judge misdirected the jury about the defence case as to whether the complainant was lying. The directions which the Judge gave on this topic were extensive. As I said just then, [the complainant], Mr Crafter and the other witnesses who you heard from who had been at Tusmore Avenue that evening had been drinking alcohol in the hours immediately prior to the alleged offending. Indeed, all of those people had been drinking quite a bit. Some were more intoxicated than others. I will go into this in a little more detail later on but at this stage I need to tell you this; the intoxication of a witness by alcohol may affect the proper assessment of his or her reliability as a witness. It is a matter for you to make findings based on the evidence you have heard as to the extent to which a witness may have been affected by alcohol.It is common experience that intoxication can have an adverse bearing on a witness’s recollection of events. It is also a common experience that intoxication can affect a person’s subsequent recall of relevant events. Because intoxication can affect or alter a person’s state of mind, the intoxication of a witness is relevant to your consideration of their evidence and your assessment of their credibility and most importantly, their reliability. It is a common experience that intoxication may reduce a person’s inhibitions, may cause them to be more relaxed and outgoing and, in certain circumstances, it may cause them to do things they would not do if they were not intoxicated. As you heard Mr Algie say, you may know of occasions of drunkenness where a person doesn’t remember a thing the next day of what they said or can remember some things and not others. When you are considering what weight to give the evidence of [the complainant], and indeed the other witnesses who you find were intoxicated on the night, bear in mind those general principles and ask yourself whether the intoxification [sic] of the witness impacts on what they said in their evidence and the reliability of that evidence and indeed, what they did that night. As I said before, it is for you to decide these matters, that is to what extent any witness was intoxicated and if so, what effect that has had on their general reliability when recounting the events that occurred or on their behaviour on that night. It is particularly important in the case of [the complainant’s] evidence because, as I said, her evidence is critical to the prosecution case.

Decision

Reasons for decision

I would dismiss this ground of appeal. Conclusion In my view, the appellant has not identified any error of fact or law which requires this Court to intervene. After conducting my own independent assessment of the evidence, I am satisfied that it was open to convict the appellant of the charge of rape. I would therefore dismiss the appealHINTON J: I have had the benefit of reading the judgment of Kelly J in draft for which I am grateful. I agree with Kelly J that the first ground of appeal is not made out. I add; this was not a case where the jury had to consider the significance of delay in the making of a complaint to the credibility of the complainant. The “varied reasons” to which s 34M(4)(c) refers are those that human experience has taught cause people not to complain at the first reasonable opportunity and only to do so sometime in the future, often a considerable time in the future, when no longer burdened by the sorts of barriers to which Kelly J refers. The purpose of s 34M(4)(c) is to remind the jury to bring to the evaluation of the complaint that knowledge of human experience. In the present case delay and the associated “varied reasons” were not and could not have been the issue. Rather, this was a case where the jury had to consider why the complainant made the complaint she did, to whom she did and the circumstances in which it was made. This was not a case where the evidence left room for the complaint to be evaluated in the light of human experience regarding the barriers that may result in a complaint being delayed. To have given the jury a direction in the terms of s 34M(4)(c) would not have served the statutory purpose but could only have invited the jury to speculate. To do so would also have served to undermine the basis upon which issue was joined between the appellant and the prosecution. If s 34M(4) is to be construed as mandatory and to be complied with strictly, irrespective of the evidence and the nature of the forensic contest, and that therefore an error of law has occurred in this case, I would apply the proviso. With respect to grounds two and three, the nature of the forensic contest was such that there was no basis upon which the jury could accept the complainant as truthful and reliable in relation to the petting incident but unreliable or untruthful in relation to the act of sexual intercourse. The evidence of the petting incident was really part of the one event which extended to include the sexual intercourse and thus was truly contextual. There is a very real question as to whether s 34P was engaged at all. The complainant’s evidence did not allow the jury to conclude that any significant period of time passed between the two incidents such as to support some form of sequential reasoning. It being impossible to separate out one event from the other, and not possible to reason permissibly from one incident to the other, the only risk of impermissible reasoning lay in the temptation to convict on the basis that something must have happened without proceeding to determine whether each element of the offence had been proved beyond reasonable doubt. In these circumstances I consider the trial Judge’s directions as set out in Kelly J’s reasons at [48] adequate and sufficiently compliant with s 34R.

Ratio Decidendi

Legal Principle Established

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