R v Daniel - [2010] SASCFC 62

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v DANIEL
[2010] SASCFC 62
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice Anderson and The Honourable Justice David)
26 November 2010
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT - CONSENT
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INTOXICATION - DIRECTIONS TO JURY
Appeal against conviction - appellant found guilty of rape - whether Judge gave adequate direction as to the course to be followed by the jury if they were to reject appellant's evidence - whether Judge gave clear directions on onus of proof - whether Judge adequately directed jury on intoxication - appeal allowed.
Criminal Law Consolidation Act 1935 (SA) s 48, referred to.
Murray v The Queen (2002) 211 CLR 193; R v Woods (2008) 102 SASR 422; Liberato and Others v The Queen (1985) 159 CLR 507; R v Smith [2008] SASC 135; R v Briske [2007] SASC 314; R v Molloy (2008) 102 SASR 452; B & D (1993) 66 A Crim R 192; Chamberlain v R (No 2) (1983) 72 FLR 1; R v Bedi (1993) 61 SASR 269; R v Prasad [2009] SASC 131; R v Box [2001] QCA 272, considered.

R v DANIEL
[2010] SASCFC 62
Court of Criminal Appeal: Sulan, Anderson and David JJ

SULAN J: Hayden John Daniel was convicted by a majority verdict of a jury of rape. This is an appeal against his conviction.
Background
The offence occurred on 15 September 2007 at Kadina. The complainant, who was 25 years of age at the time, had travelled to Kadina from Parafield Gardens with a friend, Anita Daniel, who is the appellant’s sister. They were intending to attend Anita’s stepmother’s 50^th birthday celebration.
They met members of the family at the Kadina Hotel at about 9.00 pm on 14 September 2007. The complainant consumed about 13 glasses of rose during the evening. At about 1 am on 15 September she, together with Anita, the appellant and a male friend, left the hotel. The complainant was so much under the influence of alcohol that she needed assistance to walk. When they arrived at the appellant’s house, she vomited. She was assisted into the house and taken to a bedroom where she was put to bed. Whilst in the bedroom, she again vomited.
Anita gave evidence that she was with the complainant when she was ill outside the house. She took the complainant into a spare room and assisted in putting her to bed. Anita stayed with the complainant. She eventually left the bedroom and slept in the lounge room. She did not see the complainant until about 9 am the next morning.
The complainant gave evidence that she recalled being put into the bed. She thought that she was vomiting again. She recalled Anita patting her on the head and telling her to go to sleep. She recalled Anita leaving the bedroom and turning the light off. She described what happened next:
A.I passed out in a deep sleep and I’m not sure how long later but I slowly began to wake up, felt like I was dreaming, thought I was dreaming that someone was on top of me having sex with me. As I slowly began to wake up and realise that it was real, I felt someone heavy was laying on top of me and there was a penis inside me and someone was actually having sex with me.
Q.Did you open your eyes at any stage whilst you were thinking you were having this dream.
A.No, I was struggling to come out of unconsciousness.
Q.Do you have any recollection of hearing anybody say anything to you whilst you were having what you thought was this dream.
A.Yes.
Q.Do you remember what you heard said to you.
A.I heard a voice in my ear, they said – he said ‘Mm, no weeds in the garden, just how I like it’.
Q.Did you say anything in response to that.
A.Not that I know of.
Q.Did you hear anything else said at this time.
A.No.
Q.At the time that you said ‘He’. Could you make out that it was a male or a female’s voice.
A.Definitely a man’s.
Q.Could you recognise that voice at the time.
A.No.
Q.Could you see that person’s features.
A.No.
Q.At the time that person said the things you’ve just described can you tell the court what was happening to your body.
A.I was laying sort of on the left side of my body and the male was laying on top of me, my pants were pulled down over my right leg and he had his hand behind my right buttock thrusting me towards him and his penis was inside of me.
Q.When you say inside of you, inside of where.
A.My vagina.
She said that she realised that someone was having sexual intercourse with her when she was sleeping. She pushed the person off a little bit and he immediately stopped. She said that she fell on to the floor. She was looking to go to the bathroom. The male directed her to where she should go. She found her way into the bathroom. She noticed that her pantyhose had been torn in the crotch area. She also realised that she was bleeding. At the time, she was menstruating. When she returned to the bedroom, she asked the person if he was Hayden and he responded, “Yes”. She said that she recognised him. She complained to him about having her period.
The complainant said that she stayed in the bedroom with the appellant until the morning. She then had a shower. Anita drove her to Anita’s stepmother’s home. They eventually drove to Anita’s grandmother’s home in Kadina, where they had lunch. The appellant was present during lunch. She did not speak to him. She did not complain to anyone at the lunch about the appellant’s conduct the night before. She said that she was very upset. She telephoned a friend, who encouraged her to make a complaint to the police. She said she also told Anita and, later, told Anita’s stepmother what had occurred in the bedroom.
Anita gave evidence that she and the complainant went to lunch at Anita’s grandmother’s house. She then drove the complainant back to Adelaide. She said that, in response to a question, the complainant had agreed that, during the night, she had touched the appellant’s penis with her hands.
The complainant spoke to a friend who is employed as a police officer. She was then taken to Yarrow Place at North Adelaide and was examined by a doctor.
The appellant gave evidence. He said that when the group arrived at his home, and after they had put the complainant to bed, he returned to the bedroom to give her water. He said that, by that stage, Anita had gone to bed in the lounge room. He lay next to the complainant and went to sleep. He said he awoke about two hours later. He said that he and the complainant were facing each other. She said, “Is that you, Hayden?” to which he replied, “Yes”. He then described what occurred:
A.I don’t know we were both of us leaning towards each other and kissed and it just like went from there.
Q.Are you able to explain to the best of your recollection what happened.
A.Just kissed and fondling each other I suppose, I do remember her – well her on top of me naked at one stage. I couldn’t get it up because I had trouble getting it up.
Q.When you said ‘you couldn’t get it up’ what do you mean by that.
A.Well she’s playing with it and it’s not responding.
Q.Talking about your penis.
A.Yep.
Q.What happened next.
A. Eventually she got off me and went to the toilet, come back.
Q.If I can just stop you there, did your penis come into contact with [the complainant’s] vagina.
A.I would say it did, yes.
Q.Did you penetrate her vagina with your penis.
A.I wouldn’t say I did, no. It was there but it wasn’t there. Her vagina but I couldn’t honestly say it went in.
Q.Is it possible that it did.
A.I would be very doubtful.
Q.[The complainant] got off you.
A.Yes.
Q.What happened next.
A.She went to the toilet then come back. Got back into bed.
Q.What happened after that.
A.Both went back to sleep.
The appellant said that next morning he had a shower. Later, he attended at his grandmother’s for lunch, where he saw the complainant. He remained at his grandmother’s place after his sister and the complainant had left. He did not see them again that day. He was asked:
Q.With respect to your sexual interaction with [the complainant] on the night in question, did you consider that [the complainant] was consenting to sexual relations with you.
A.Like I said it takes two to tango.
The appellant was interviewed by the police at the Kadina Police Station on 4 January 2008. He gave a version of the events to the police similar to the version he gave in his evidence. When he was asked whether there was penetration of his penis into the complainant’s vagina, he said he thought there was.
The summing up
At the commencement of his summing up, the Judge gave the following direction:
Can I now move to three interrelated matters that really form the cornerstone of our system of justice. They are the presumption of innocence, the onus of proof and the standard of proof.
The accused comes into this court with a presumption of innocence in his favour. The law regards him as innocent of the charge unless and until his guilt has been proved to the satisfaction of you the jury beyond reasonable doubt. The burden of proving the charge lies wholly on the prosecution. The accused, as you have heard said, does not have to prove anything. If an accused person puts forward a defence, as has this accused, he does not have to prove it. It is for the prosecution to disprove it or to show that it is irrelevant otherwise the prosecution would not have proved the charge beyond reasonable doubt. Any deficiency in the evidence is to be sheeted home to the prosecution, not to the defence or the accused.
As I have said already if you are not satisfied about the accused’s guilt then plainly you must acquit him.
Furthermore, as you have heard said many times I suppose, nothing short of proof beyond reasonable doubt will do. It is not enough for the prosecution to show a mere suspicion of guilt or to show the accused is probably guilty. He is not to be convicted unless his guilt has been proved to your satisfaction beyond reasonable doubt. That requirement extends to each and every element or ingredient of the offence and I will come to those shortly. You cannot convict an accused person so long as you have a reasonable doubt as to an essential element of the crime charged against him. If at the end of the day you are left with a reasonable doubt about the guilt of the accused then you are obliged to give him the benefit of that doubt and find him not guilty.
Later, in his summing up, the Judge directed the jury about the accused having given evidence. He said:
As you know the accused gave evidence in this court and it is appropriate for me to give you a direction about that. He was not obliged to give evidence. He had the right to remain silent in answer to the charge just like you and I would if we were in his position, leaving it to the prosecution to satisfy you of all of the ingredients of the charge. In this case however the accused elected to give evidence on oath. You are entitled to give him such credit as you think appropriate for adopting a course that he was not obliged to adopt. The effect of this is that in assessing his evidence and the weight to be given to it, you are to approach the task in exactly the same way as with other witnesses. It is for you to decide what weight you are prepared to attach to the evidence of the accused, in the same way as it is for other witnesses.
The Judge directed the jury about the elements of rape. He told the jury that the prosecution case is that the complainant did not consent and the defence case is, although there is no requirement on the defence to show or prove anything, that she did consent and that she consented by her conduct. He then gave detailed directions about consent. He directed the jury that, if the complainant was unconscious, either as a result of alcohol or being heavily asleep, or both, she could not consent, as consent requires free and voluntary consent. He said:
As you are well aware, the case of the accused is that not only did she consent but that she took all of her clothes off and initiated sexual contact by being astride him naked, thereby showing she consented. If you think that happened or you think that might have happened, then you might well think that the prosecution has not proved that she did not consent. If you thought that happened or that that might have happened then my expectation is that you would reach the view that she did in fact consent, and the prosecution would not have proved its case.
The appeal
The first ground of appeal is that the last mentioned direction is a misdirection and, further, the Judge was in error in failing to direct the jury about how they should approach their task if they rejected the appellant’s evidence.
Counsel for the appellant submits that, in directing the jury, if they thought that the accused’s version of what happened, or they thought the accused’s version of what happened might have happened, then they might think that the prosecution has not proved that she did not consent was a misdirection because the use of the term “that happened or might have happened” indicates to the jury that if they thought the events, as described by the appellant, probably happened, then the prosecution will not have proved its case. The direction fails to make it clear that if the jury concluded that, if it was reasonably possible that the events as described by the accused occurred, then the prosecution would have failed to discharge its onus of proof.
Counsel submits that that direction infers that there is an onus on the appellant to satisfy the jury, at least on the balance of probabilities, that the appellant’s version was correct. Counsel submits that this amounts to a misdirection.
Counsel submits that this is a case in which it was incumbent upon the Judge to give a clear and unequivocal direction to the jury that, if they rejected the appellant’s evidence, that was not a basis upon which to convict the appellant. The Judge should have directed the jury that they had to consider the whole of the evidence and, in particular, the evidence of the complainant, and be satisfied beyond reasonable doubt that each and every element of the offence had been proved. They should have been directed that it did not follow that, because they rejected the appellant’s version of what occurred, they should therefore accept the complainant’s version. Nor did it follow that they could be satisfied beyond reasonable doubt that the events, as recounted by her, had occurred.
In circumstances in which the prosecution case solely relies on the complainant’s version of what occurred, which is denied on oath by the appellant, the trial judge is required to ensure that the jury is directed in clear and unequivocal terms how to approach their task. It is very easy for a jury to be given the impression that there is an onus on an accused to satisfy them that his version of events is to be preferred and, if they are not so satisfied, it therefore follows that the case has been proved against him.
In The Queen v Calides,[1] Wells J referred to statements by the former Chief Justice, Sir Mellis Napier, which alluded to the need to give a clear direction to the jury in cases where there are two versions of the events, one of the complainant and the other of the accused. Wells J said:[2]
As the former Chief Justice, Sir Mellis Napier, used to say many times in this Criminal Court, in such circumstances there are really, for all practical purposes, three possibilities: the jury may be completely satisfied with the evidence led from the Crown, in which case, assuming all other matters to be properly established, the verdict will be guilty; the jury may be perfectly satisfied with the version presented by the accused, in which case there will inevitably be a verdict of not guilty; and there is the third possibility, which must never be overlooked, and that is that the jury, after a full and careful consideration, may arrive at the result that they are unable to say where the truth lies, or that they are unable to say who is telling the truth. If that is the situation, then, of course, the verdict must also be not guilty. Now, it is true, what Mr. Martin has pointed out so clearly, that the directions on the onus and standard of proof given at the beginning and at the end of his summing up by the learned trial Judge in this case are impeccable, and, if applied logically, they would not lead the jury into error; in other words, they would provide, if correctly applied, a resolution of the difficulties created by the two references to the jury’s task to decide where the truth lies. But, unfortunately, the portions of the summing up to which objections have been taken were concerned very closely with the essential factual issues, and when considering those factual issues an allusion was made – it may not have been an intended reference, but an allusion was made – to something that directly concerns onus and standard of proof, and as the matters then discussed by the learned trial Judge were so central to the case, it was more than possible that they jury could have been misled, that they could have believed that they were doing their duty, notwithstanding the directions on onus of proof, by finding some reason for accepting one side or the other, and that that could well lead to a miscarriage of justice.
[1] (1983) 34 SASR 355. See also Liberato and Others v The Queen (1985) 159 CLR 507, 515.
[2] (1983) 34 SASR 355, 358-9.
It is the case for the appellant that it is inevitable that the jury would pose the question, “Who is to be believed?” In those circumstances, a careful direction to the effect that if the accused’s version is rejected, the jury must then consider whether the case against the accused was proved beyond reasonable doubt was required. The passage referred to from Calides is apposite to this case.
There are two related questions raised by counsel’s submissions. First, did the Judge adequately direct the jury that the prosecution has the onus of proof, and did the direction complained of misdirect the jury on that issue? Second, did the summing up adequately direct the jury that if they rejected the appellant’s version of the events, they must still be satisfied that each element of the offence had been proved beyond reasonable doubt?
As to the first question, counsel submits that the words used by the trial Judge when he directed the jury that if they thought the events, as described by the accused happened or might have happened, the direction could lead a jury to conclude that the accused does have an onus to prove his version on the balance of probabilities.
In considering counsel’s complaint, it is important to reiterate that the Court will have regard to the overall impression that the whole summing up would have created in the minds of the jury.[3] Having made that general observation, the Judge must take care to ensure that when he or she directs a jury about the case for the accused that it is made clear to the jury that the defence carries no onus of proof. The standard general direction about onus of proof, which most judges give in their general directions at the early stage of a summing up, will not necessarily be sufficient to cure a later impression in the summing up when dealing with the defence case, that an accused must prove his or her version. This is particularly so when the prosecution case relies solely on the complainant’s version and the accused gives contradictory evidence.
[3] The Queen v Calides (1983) 34 SASR 355.

The Judge’s directions as to onus of proof, when giving general directions, are unexceptional. He made it clear that the appellant does not have to prove the version of events he puts forward in his defence. He directed the jury that the prosecution carries the onus of proof beyond reasonable doubt. After giving other general directions, the trial Judge directed the jury about each element of the offence. In directing the jury on the element of consent, he correctly directed the jury that if the complainant had not consented to the act of sexual intercourse prior to falling asleep, or becoming comatose as a result of having consumed too much alcohol, she could not consent whilst in that state, as consent must be free and voluntary. He observed that there was no evidence that she consented before she passed out.
The Judge then turned to the question of whether it has been proved that the accused knew or believed that the complainant was not consenting. He gave the following directions:
And to those directions I give you this additional direction: Obviously the prosecution relies almost exclusively upon the evidence of [the complainant] in an endeavour to prove the charge of rape. You should scrutinise her evidence closely and carefully. You should not convict the accused unless after such close scrutiny you are convinced about its reliability in establishing guilt beyond reasonable doubt.
The Judge discussed the alternate verdict of attempted rape if the jury were not satisfied that penetration occurred. He dealt with the prosecution case. He then referred to the defence case:
So, members of the jury, the defence case really is an attack, I suppose, on each of the three ingredients that the Crown must prove. No proof of penetration, no proof of her lack of consent, and no proof of his knowledge that she was not consenting or that he had adopted a could not care less attitude.
He further observed:
So, members of the jury, those and the other matters raised by [counsel for the accused] are relevant to your assessment of the prosecution case because as I have said a number of times to you, this case obviously hangs and falls on the prosecution case whether or not it has proved its case beyond reasonable doubt.
In considering the two questions raised by counsel, counsel for the appellant submits that they are linked. He submits that when the summing up is considered as a whole, the risks alluded to by Wells J in the passage earlier cited from Calides, combined with the failure of the trial Judge to clearly direct the jury as to how to deal with the evidence, has resulted in a misdirection.
In Murray v The Queen,[4] the appellant was convicted of murder. The defence case was that, although the accused admitted pointing a loaded gun at the deceased to frighten him, he denied deliberately pulling the trigger. The trial Judge drew the jury’s attention to the prosecution and defence cases and instructed the jury that they had to decide which version they accepted.
[4] (2002) 211 CLR 193.
In allowing the appeal, Gummow and Hayne JJ said:[5]
Having referred the jury to conflicting evidence that had been given at the trial about the appellant’s conduct on the night of the shooting, the trial judge said:
“Now, you are going to have to decide which versions of those events and conversations you accept and in deciding that it may help you to reach your ultimate conclusion on the question of intent. What was his [the appellant’s] intent? Was it just to frighten [the deceased] and drive him out of the house rather than to kill him or to cause him grievous bodily harm? If you find that his intent was just to frighten him and drive him out of the house, then you should find that he is not guilty of murder. Relevant to this will be whether you accept the [appellant’s] evidence that [the deceased] was yelling out to him while he was using the toilet, whether you accept his evidence that he was concerned for his own safety.” (Emphasis added.)
In the course of her directions, her Honour made several other references to the jury accepting the appellant’s evidence or version of events.
Although at the start of her directions about murder her Honour told the jury that it was for the prosecution to prove that the appellant had intended to kill or do grievous bodily harm, the references she made, particularly in the passage of the directions set out earlier, to the jury accepting the accused’s evidence or version of events were apt to mislead the jury about the decision they had to make. The choice for the jury was not to prefer one version of events over another. The question was whether the prosecution had proved the relevant elements of the offence beyond reasonable doubt. This required no comparison between alternatives other than being persuaded and not being persuaded beyond reasonable doubt of the guilt of the appellant.
[5] (2002) 211 CLR 193, 212-13 [56] – [57].
Gaudron J observed that the trial Judge had correctly directed the jury on the onus of proof in the earlier part of her directions, but that when she later dealt with the evidence she posed the question for the jury’s determination whether it accepted the prosecution or appellant’s version of events. The direction could have misled the jury. She said:[6]
Although the trial judge, in the early part of her directions, correctly instructed the jury with respect to the onus of proof, in the passages set out above, her Honour posed the question for the jury’s determination with respect to murder as the question whether it accepted the prosecution’s or the appellant’s version of events. That was the central or critical direction in her Honour’s summing up. And as the issue for the jury was not whether it should accept the appellant’s version but whether the prosecution had negatived it as a reasonable possibility, that direction mis-stated the issue for determination in a way that relieved the prosecution of proving its case beyond reasonable doubt. Accordingly, the appeal should be allowed on that ground.
[6] (2002) 211 CLR 193, 201-2 [23].
In R v Wood,[7] this Court considered a complaint that the trial Judge had not directed the jury with sufficient clarity about the onus of proof. The accused had been convicted of producing cannabis, possessing methylamphetamine for sale, possessing lysergide for sale and possessing ecstasy for sale. The accused, it was alleged, was the caretaker of premises used for storing the drugs. He denied any involvement as a caretaker. Gray J summarised the Judge’s direction to the jury:[8]
[7] (2008) 102 SASR 422.
[8] (2008) 102 SASR 422, 431-2 [29] – [30].
The judge told the jury that the prosecution case was dependent upon circumstantial evidence. He was correct to do so. In the course of the summing up, the judge gave an extensive direction in regard to circumstantial evidence, summarising what, in the judge’s view, was the relevant evidence to be considered, and then identifying what the judge described as “the question for the jury”:
So the question for you here is: are you content that guilt is the only explanation and that there is no reasonable possibility that the inferences arising could indicate other than guilt. In answering what is really the one question, namely what do the circumstances indicate, you need to have regard to the evidence from the defence side, that is the evidence of the accused and the evidence of Mr Borzumati.
From the circumstances emerging from their evidence, is there a reasonable possibility that the accused was the passive house-sitter who was not intentionally involved in the production of the cannabis, nor in possession of either or both of the methylamphetamine and the LSD?
…
(Emphasis added.)
The judge then identified the question for the jury in the following terms:
What the prosecution have arraigned against the accused is the circumstantial evidence and the inferences contended to arise from it. So the question for you is whether such inferences do arise from the circumstances, and even if you are content that they do, does the evidence of the accused supported by Borzumati in part, as it does, raise the possibility that those inferences of intentional involvement are not the only conclusion indicated by the circumstances.
In short, members of the jury, if you think that what the accused has said is either true or not wholly unacceptable but is reasonably possible, you could not conclude that the inferences arising only point to guilt and so you will not have found the charges proven beyond reasonable doubt.
(Emphasis added.)
In allowing the appeal, Gray J said:[9]
The directions in this jurisdiction in cases where an accused has given evidence customarily include a statement to the effect that even if the jury disbelieve and reject an accused’s account, it does not follow that the accused is guilty as charged. The onus of proof remains on the Crown to prove, on the evidence, built beyond reasonable doubt. The customary direction given to the jury is that they are to assess the accused’s evidence in the same manner as they assess all other witnesses, and that the accused is not to be treated in any different way. It is the usual practice to then give a direction in the following terms or similar terms:
You should keep in mind, however, at all times, that when entering the witness box an accused person has not and does not assume any onus of proof in this trial. He does not have to prove his innocence. The onus of proving the charge remains with the prosecution throughout the trial, and even if you do not accept the evidence of the accused, it does not follow that you can necessarily convict him of the offence. You need to be satisfied, at the end of your deliberations, beyond reasonable doubt, of the accused’s guilt on the basis of the whole of the evidence you have heard before you can convict him of this offence.
In the present proceeding the judge did not give the jury a direction in these terms.
[9] (2002) 211 CLR 193, 434 [38].
Sulan J, who agreed with Gray J, said:[10]
The question for the jury was whether on the evidence they could be satisfied beyond reasonable doubt that the defendant had participated in the production of cannabis. The direction to acquit if the jury accepted the evidence of the defendant or considered it to be a reasonable possibility that he did not intend to participate or that they were unable to say one way or another is correct as far as it goes. The conclusion, if the jury arrived at that position, was to acquit the defendant. However, the direction fell short of what was required. What was required was an unambiguous direction that if the jury did not accept the defendant’s evidence or considered it to be a reasonable possibility, that is, if the jury rejected the evidence of the defendant out of hand, that was not an end of the matter. The jury should have been directed that even if they did not accept the defendant’s evidence it did not follow that they could proceed to a verdict of guilt. They should have been directed that the onus was on the prosecution to prove the case against the defendant and that they needed to be satisfied beyond reasonable doubt on the whole of the evidence that the defendant was guilty. So, the jury should have been directed that if they rejected the defence case that does not lead necessarily to a finding of guilt. They must then consider the evidence – that is, the prosecution evidence – and ask whether the prosecution evidence satisfies them beyond reasonable doubt. The judge did not direct the jury in that way.
The direction on the second count, although in slightly different terms to the directions on the first count, suffered the same defect as the directions on the first count. The trial judge failed to direct the jury that the rejection of the defence case was not the end of their deliberations. In respect of the directions the judge again failed to direct the jury that even if they did not accept the defence case that was not the end of the matter and they must then consider the prosecution evidence. Before they convict they must be satisfied beyond reasonable doubt of the defendant’s guilt on the evidence.
[10] (2002) 211 CLR 193, 435-5 [48] – [49].
I consider that the Judge’s direction failed clearly to direct the jury of the three alternative ways in which they must consider the evidence. Although the Judge reminded the jury on a number of occasions that the onus of proof was on the prosecution, when he gave the critical direction relating to the accused’s evidence and the defence case, he failed to make it clear that, if they rejected the defence case, they must still be satisfied beyond reasonable doubt of the accused’s guilt. In my view, the failure of the Judge to direct the jury of the three alternative approaches when considering the appellant’s evidence creates a significant risk that the jury may have failed to understand the correct process of reasoning required before finding the appellant guilty.
Grounds 2 and 3
The appellant complains that the Judge erred in failing adequately to direct the jury as to the third element of the offence, namely, that the appellant knew that the complainant was not consenting or was recklessly indifferent as to whether she was consenting. Further, the trial Judge erred in failing to adequately direct the jury on the evidence of intoxication. Those grounds can be considered together.
Counsel for the appellant contends that the Judge failed to direct the jury that, in considering the issue of intoxication, it should have regard to the effect that intoxication had upon the complainant and upon her perception of what occurred, and whether the jury could, therefore, rely upon her account beyond reasonable doubt. Counsel submits that the Judge failed to relate the question of intoxication to the way in which the jury should evaluate the prosecution case. Counsel submits that the issue upon which the trial Judge failed to adequately direct the jury is the extent of the complainant’s intoxication and how that impacted, not only on her reliability, but also her credibility in circumstances where she had made inconsistent statements, for example, her admission to Anita, which she denied in evidence, of having touched the accused’s penis.
In The Queen v Curtis,[11] the accused was charged with rape. The complainant had consumed a considerable amount of alcohol and smoked marijuana. She admitted that she was quite drunk. According to her, after she arrived at the appellant’s premises she smoked a pipe of cannabis and, shortly thereafter, she felt sick and broke into a cold sweat. The accused suggested that she lie down and she reluctantly followed him into his bedroom and lay down on a double bed. She gave evidence that she was fully clothed and, when she lay down, she “went out to it”. She awoke to find two men in the room. She was naked from the waist down. Both men were fondling and kissing her. She said that when she came to a full realisation of what was occurring, she told the men that what they were doing was not right, and attempted to get them to desist, but they continued. She then claimed that she told them to stop, and she struggled.
[11] (Unreported, Supreme Court of South Australia, No. 514 of 1991, Olsson, Duggan and Zelling JJ, 30 August 1991).
When she was unable to stop the men, she stopped struggling but she was crying. She said the accused told his friend to leave. The complainant went to the toilet and then tried to leave the house, but was dragged back into the room. It was the prosecution case that the accused then continued to try to kiss her, although she was objecting. She eventually succumbed, as she believed that, unless she allowed him to have sexual intercourse with her, she would not be released. She said that she left the house after the accused had had sexual intercourse with her. She discovered that her car had been taken by the second male who had been in the house. She immediately complained to a stranger who she met on the road.
The accused gave evidence and confirmed much of the evidence of the complainant, but he asserted that the complainant returned to the bedroom and consented to sexual intercourse taking place. In cross-examination, he agreed that when the second man was in the room fondling the complainant that she cried.
Olsson J observed that the trial was a short trial over less than two days. He said:[12]
In the course of what was a very brief summing up the learned trial judge, having dealt with a number of general matters of approach (including the onus of proof resting on the Crown) and the legal elements of the charge against the appellant, expressed the view that the element of intercourse should present little difficulty, but that the real area of contest was in relation to whether Miss McKenzie had consented to intercourse and whether, at the moment of penetration, the appellant either knew that she was not consenting or was recklessly indifferent as to whether she was consenting or not.
[12] Ibid, 5.
The Judge directed the jury about intoxication. He directed the jury that, in considering the perception of the accused as to the events, they should have regard to his state of sobriety and whether, because of that, he may not have received the signals from Miss McKenzie that she did not want to have intercourse. He directed the jury in similar terms to the present case that it may be, because the accused’s senses were dulled by alcohol, depending on the jury’s view as to whether he was intoxicated and, if so, to what extent, it may be that the accused did not realise from Miss McKenzie’s responses that she might not be consenting to intercourse.
Olsson J observed that, in a case in which evidence seemed to have been given of various signals which had been received by the principal parties, it was of critical importance, and essential in a properly balanced summing up, to invite in a definitive manner, the attention of the jury to the state of intoxication of Miss McKenzie herself. He said:[13]
There was thus a very real need to point out to the jury the need to consider what effect that situation may have had upon her, in terms both of her perceptions and interpretation of the conduct of the appellant in particular and the true nature, comprehension and effect of any signals which she may have given to him. Additionally, it bore directly on the reliability and credibility of her narration of important events, it being remembered that, in the course of evidence, she professed some confusion as to the sequence of some events and certain gaps in her memory. This was not done. It constitutes a serious deficiency in the overall content of the summing up.
[13] Ibid, 8.
Duggan J observed:[14]
The circumstance of the case required the jurors to focus their attention on the appellant’s state of mind. The appellant’s interpretation of the complainant’s attitude from her actions was crucial to this assessment. On the appellant’s version the complainant left the room to go to the toilet and a short time later she was seen sitting on the couch having a cigarette with the other man. At this stage she was naked from the waist down and a blanket covered the two of them. In cross-examination she conceded the possibility of this state of affairs. Furthermore she also stated that she returned to the bedroom and, after being grabbed and held by the appellant, decided to lie back on the bed and submit to intercourse. In my view these circumstances rendered it necessary for the trial Judge to give more than general directions as to the relevance of intoxication. The case called for a more extensive direction on how events such as those to which I have referred might have been perceived by a man affected by the consumption of alcohol and marijuana. The possibility of misconceiving the complainant’s attitude should have been raised in this context (R v Wilson & Ors (1986) 42 SASR 203).
The issue of the complainant’s intoxication was also of considerable relevance. The combined effect of alcohol and marijuana was considerable in her case and, on her version, it rendered her unconscious for a period of time. It was important for the jury to consider whether the intoxication may have accounted for, or contributed to, conduct from which the appellant inferred consent. It was also relevant in assessing her general reliability as a witness, particularly in the light of her vagueness as to certain important events. Unfortunately, although His Honour reminded the jury that smoking of marijuana had a considerable effect on the complainant, he did not proceed to discuss the relevance of that fact in evaluating her conduct on the evening and her evidence before the jury.
[14] Ibid, 10.

In the present case, the Judge dealt in detail with the appellant’s perception of events, having regard to his state of intoxication. Having referred the jury to the accused’s evidence that he believed the complainant was consenting, he gave the following directions:[15]
You will remember the accused’s evidence that he believed that [the complainant] was consenting to the act of sexual intercourse and what is more was naked on top of him when she woke up. But you will also remember that he said that he had copious amounts of alcohol to drink even though he was a seasoned drinker. I touched on earlier that alcohol may affect your assessment of the reliability of a witness to tell an accurate story. It is common experience that intoxication by alcohol can have an adverse bearing on a person’s perception of relevant events. It is also common experience that intoxication can affect a person’s subsequent recall of relevant events.
To those general remarks I add this: because intoxication can affect or alter a person’s state of mind, intoxication must be relevant to consideration of the third ingredient of the charge. It is for you to decide what significance you attach to the evidence of the accused’s consumption of alcohol: Was there a misunderstanding in the mind of the accused in his intoxicated state about the willingness of the complainant to engage in sexual activity? Did the accused in his intoxicated state mistakenly believe that the complainant was consenting? Did the complainant behave in a manner that would or may have led the accused, in his intoxicated state, to think she was consenting?
[15] AB 44-5.
As to the complainant’s state of intoxication, the only directions that the trial Judge gave were:[16]
… Secondly, you should consider whether, in her intoxicated state, she lost her inhibitions and did consent but has now forgotten that or is now unwilling and perhaps ashamed to admit that in the cold, hard, sober light of day.
[16] AB 44-5.
The Judge directed the jury to closely scrutinise the complainant’s evidence, and that they could only convict if they were convinced of its reliability in establishing guilt beyond reasonable doubt.
In my view, the direction failed to adequately instruct the jury that, in considering the reliability of the complainant’s evidence, and whether they could be satisfied beyond reasonable doubt of the appellant’s guilt upon her evidence, her state of intoxication was relevant. It was relevant to her perception, and to her recall of the events. It was also relevant, when considering her credibility.
In restricting his direction to the question of whether the complainant might have lost her inhibitions, but has now forgotten, or is now unwilling to admit her conduct, the trial Judge failed to give a sufficient direction about the relevance of the complainant’s state of intoxication. As Duggan J observed, the state of the complainant’s intoxication was of considerable relevance. I consider that the direction did not give sufficient emphasis to the need for the jury to consider the complainant’s state of intoxication when assessing the reliability of her evidence.
Conclusion
This was a case which required the Judge to give clear directions on the onus of proof, and to the manner in which the jury should approach its task when considering the accused’s evidence and how to go about its task if they did not accept his evidence. In my opinion, the Judge failed to give adequate directions about the approach required by the jury if they did not accept the appellant’s evidence.
Further, the Judge failed adequately to direct the jury about the complainant’s state of intoxication.
Those errors are sufficient to conclude that there has been a miscarriage of justice.
I would allow the appeal, set aside the conviction and order a retrial.
ANDERSON J.
Introduction
The appellant in this matter was charged with the offence of rape pursuant to s 48 of the Criminal Law Consolidation Act 1935.
The particulars of the offending allege that the appellant had vaginal sexual intercourse with the complainant on 15 September 2007 without her consent.
I respectfully adopt the background as set out by Sulan J. The grounds of appeal are that the trial judge:
1.     Failed to adequately direct the jury on the onus of proof by failing to adequately direct on the consequences of rejecting the appellant’s evidence.
2.     Failed to adequately direct the jury on the 3^rd element of the offence of rape in the context of the prosecution case.
3.     Failed to adequately direct the jury on the evidence of intoxication, particularly as regards the complainant’s intoxication.
4.     Failed to adequately direct the jury as to why they should “scrutinize” the complainant’s version of the events “closely and carefully”.
5.     The verdict of the jury was unreasonable or insupportable on the evidence.
Ground 1
The summing up in this case included the following preliminary directions:
So after all of your deliberations and after you have discussed the matter the ultimate question for you, and the question that you must ask yourselves is whether or not the offence has been proved beyond reasonable doubt that the accused is guilty of the offence with which he has been charged. If that standard has not been met obviously you would be obliged to acquit the accused.
The judge later gave the following direction regarding the onus of proof being wholly on the prosecution:
Can I now move to three interrelated matters that really form the cornerstone of our system of justice. They are the presumption of innocence, the onus of proof and the standard of proof.
The accused comes into this court with a presumption of innocence in his favour. The law regards him as innocent of the charge unless and until his guilt has been proved to the satisfaction of you the jury beyond reasonable doubt. The burden of proving the charge lies wholly on the prosecution. The accused, as you have heard said, does not have to prove anything. If an accused person puts forward a defence, as has this accused, he does not have to prove it. It is for the prosecution to disprove it or to show that it is irrelevant otherwise the prosecution would not have proved the charge beyond reasonable doubt. Any deficiency in the evidence is to be sheeted home to the prosecution, not to the defence or the accused.
The judge then made the usual direction in relation to the standard of proof:
As I have said already if you are not satisfied about the accused’s guilt then plainly you must acquit him.
Furthermore, as you have heard said many times I suppose, nothing short of proof beyond reasonable doubt will do. It is not enough for the prosecution to show a mere suspicion of guilt or to show the accused is probably guilty. He is not to be convicted unless his guilt has been proved to your satisfaction beyond reasonable doubt. That requirement extends to each and every element or ingredient of the offence and I will come to those shortly. You cannot convict an accused person so long as you have a reasonable doubt as to an essential element of the crime charged against him. If at the end of the day you are left with a reasonable doubt about the guilt of the accused then you are obliged to give him the benefit of that doubt and find him not guilty.
After giving some directions about assessing witnesses, the judge repeated his direction that the defence did not need to prove anything:
The prosecution case is that she did not consent and the defence case is, although there is no requirement on the defence to show or prove anything, that she did consent, and that she consented really by her conduct.
The following paragraph is the part of the summing up complained of in ground 1:
As you are well aware, the case of the accused is that not only did she consent but that she took all of her clothes off and initiated sexual contact by being astride him naked, thereby showing she consented. If you think that happened or you think that might have happened, then you might well think that the prosecution has not proved that she did not consent. If you thought that happened or that that might have happened then my expectation is that you would reach the view that she did in fact consent, and the prosecution would not have proved its case.
It is complained that there is a risk that the jury was misdirected in relation to the standard of proof.
It is clear that any summing up must be read as a whole. The passage complained of, if read on its own, could be construed as leading the jury to incorrectly interpret the onus of proof. However, when it is read in conjunction with the other remarks referred to above, in my view the jury could not have been mistaken. Having regard to the overall impression that the whole summing up would have created in the minds of the jury, I do not consider that the jury was misdirected in this regard.
I also reject the argument that the passage complained of could be interpreted by the jury as meaning that the appellant was required to prove his version of the events. The passage does not do so. It is framed in terms favourable to the appellant, and in terms which refer only to the prosecution’s burden of proof.
The judge warned the jury about relying solely on the complainant’s evidence to convict the appellant:
And to those directions I give you this additional direction: Obviously the prosecution relies almost exclusively upon the evidence of Danielle in an endeavour to prove the charge of rape. You should scrutinise her evidence closely and carefully. You should not convict the accused unless after such close scrutiny you are convinced about its reliability in establishing guilt beyond reasonable doubt.
That direction was made directly after warning the jury about the effect of intoxication on a witness, and after stating that the complainant was in an intoxicated state and may have consented.
The judge then said, in relation to the defence:
So, members of the jury, the defence case really is an attack, I suppose, on each of the three ingredients that the Crown must prove. No proof of penetration, no proof of her lack of consent, and no proof of his knowledge that she was not consenting or that he had adopted a could not care less attitude.
The judge then repeated that the burden of proof rests solely on the prosecution:
So, members of the jury, those and the other matters raised by Mr Kane are relevant to your assessment of the prosecution case because as I have said a number of times to you, this case obviously hangs and falls on the prosecution case whether or not it has proved its case beyond reasonable doubt.
The appellant submits that there is a risk the jury was misdirected in relation to the onus of proof. It is submitted the trial judge did not adequately direct the jury as to the consequences of rejecting the appellant’s evidence.
The well-established legal principles in relation to this type of direction can be found in R v Calides (1983) 34 SASR 355 and Liberato v R (1985) 159 CLR 507.
The Liberato direction
It was submitted by counsel for the appellant that the judge did not direct the jury on how to proceed if they rejected the defence. It was argued by the appellant that a Liberato direction should have been given.
In my view, this was not necessary. The judge made it clear that the jury was to decide whether the prosecution had proved its case, and did not infer that the appellant was required to prove anything. The onus of proof, as I have said, was explained to the jury many times throughout the summing up. I do not consider that the summing up left the jury with the impression that they were to choose between the appellant’s version and the complainant’s version.
It was argued by counsel for the appellant that it was inevitable that the jury would have perceived the case that way, given the reliance placed on the complainant’s evidence. However, for the reasons I have already given, I do not consider that this was the impression left by the summing up.
Mr Kimber SC, counsel for the respondent, referred to R v Smith [2008] SASC 135. In that case, Mr Smith was convicted by jury of unlawful sexual intercourse with a complainant J, his stepdaughter. The prosecution case relied on the evidence of J without corroboration. The offences occurred when J was between 8 and 17 years old, and she gave evidence at the age of 27. All charges and uncharged acts were denied by Mr Smith.
In Smith, the Chief Justice, with whom David J and I agreed, said at [12]-[13]:
[12]Mr White, counsel for Mr Smith on appeal, submits that the Judge was required to tell the jury that even if they were to reject Mr Smith’s evidence, that was not enough to support a guilty verdict. The Judge should have told the jury that they had to go further and accept the evidence of J as proof beyond reasonable doubt.
[13]The suggested further direction is a correct statement of the law. In some cases the circumstances might call for a direction along these lines. But it cannot be said that this further direction will always be necessary, nor was it necessary here. The ultimate question is whether the Judge adequately brought home to the jury the requirement for proof beyond reasonable doubt, and what that requirement means. The Judge’s directions were clear, were repeated several times, and adequately identified the jury’s responsibility.
I consider those remarks to be apposite to this case.
Mr Edwardson QC, counsel for the appellant, referred to R v Woods (2008) 102 SASR 422 and R v Briske [2007] SASC 314. Counsel for the respondent submitted that this case does not reach the level of those cases. I agree.
In Briske the trial judge in his summing up stated repeatedly “if you accept the evidence of the accused…”. There was a significant risk in that case of the jury being confused as to the onus and standard of proof. Put another way, there was a significant risk of the jury coming to the conclusion that the prosecution had been relieved of proving its case beyond reasonable doubt. That risk of error was not removed by the trial judge’s general directions to the effect that the jury should convict only if satisfied of guilt beyond reasonable doubt.
In that judgment at [54]-[55], with the Chief Justice and Kelly J in agreement, I discussed the cumulative effect of the judge’s summing up:
[54]In the circumstances of this case, it is my view that the cumulative effect of the trial judge conveying to the jury that their task involved either accepting or rejecting the evidence of the accused as to the incident … means that there has been a misdirection in the terms stated by the High Court in Murray.
[55]It is my view that the trial judge unwittingly reversed the onus of proof. I say this despite the many instances throughout his summing up where the trial judge quite correctly summarised the onus of proof. Despite those many references on which [counsel for the respondent] relied, it is my view that the impact of those parts of the summing up that I have mentioned outweighs the earlier correct directions which the trial judge gave. The only contingencies allowed for by the trial judge in the paragraphs referred to was acceptance or rejection of the evidence of the accused as to whether the…incident occurred and not whether there was a reasonable possibility that it did.
In this case there is only one paragraph complained of, and in my view it cannot be said to have created a misdirection in view of the entirety of the summing up.
In Woods the court by majority (Gray and Sulan JJ, with David J dissenting) held that the trial judge misstated the issue for determination in a way that relieved the prosecution of proving its case beyond reasonable doubt. The court held that it was necessary for the judge to give a Liberato-style direction. This was a circumstantial case. In the summing up, the judge approached the issues in the negative. For each element to be proved, the judge told the jury that if they accepted the accused’s version of the events, or if the accused’s version was reasonably possible, the prosecution would not have proved its case beyond reasonable doubt. The judge did not go on to say that if they did not believe the accused, it was not then a consequence that the prosecution had discharged the onus.
Mr Kimber referred to R v Molloy (2008) 102 SASR 452. In that judgment Kelly J, with whom White J and I agreed, discussed when a Liberato-type direction is appropriate by reference to the decision in Murray.
In Molloy, the accused was found guilty of using a carriage service to make child pornography available on the internet, by way of a file-sharing program called eMule. The accused admitted to downloading child pornography from eMule but denied knowingly or recklessly sharing files with others. He said that after reviewing downloaded files, if they contained pornography, he would delete them. He said that he did not know others had access to his files, and that he never accessed the ‘shared files’ folder, which is where eMule puts downloaded files.
The trial judge in the summing up went through all the possibilities that the jury might have before them; what to do if they believed the prosecution witnesses and disbelieved the accused, if they believed the accused, if it was reasonably possible that the accused was telling the truth, if there was a reasonable doubt about any element of the charge. At the end of the summing up, the judge gave a clear direction as to the onus and standard of proof.
After consideration of Briske and Woods her Honour said at [57]-[59]:
[57]One matter which emerges from the decided cases is that it is sometimes a matter of very fine degree as to whether a particular turn of phrase, or perhaps infelicitous expression either in isolation or in combination, has the effect of confusing or misleading a jury to the point where it amounts to a material misdirection.
[58]In the light of what appears to be an emerging trend to subject the summings up of trial judges to minute analysis line by line, passage by passage, it is instructive to reflect on the following passage in the judgment of Kirby J in Murray (at 216). Although his Honour was in dissent in that case the following passage from the judgment is a helpful reminder for an appellate court:
“72… However, it is a cardinal principle of appellate scrutiny of judicial instructions to a jury that regard must be had to:
(1)     The character of the communication. It obliges a real contact by the judge with the collective mind of the jury fresh from having heard the evidence. It does not call for a convoluted legal essay whose only merit is that it might protect the judge from appellate reversal; and
(2)     The entirety of the communication. Particular passages in the instructions must be read and understood in the light of —
(a)     the issues actually fought at the trial;
(b)the addresses to the jury by trial counsel that immediately preceded the judge's instructions;
(c)any consideration and discussion between the judge and counsel prior to the instructions as to their content; and
(d)the entire content of the instructions, taken as a whole. It is a basic mistake to isolate any judicial (or other) utterances and to consider them out of context. But it is especially mistaken to take parts of a judicial communication with a jury in a criminal trial in isolation from the context.”
[59]It does need to be borne in mind that, in a case where an accused person raises a positive defence as was the case here, when putting the defence case to the jury it is important that the trial judge does not leave the jury with the impression that there is some sort of onus on an accused person just because he has raised a defence. One of the potential difficulties which arises when giving directions which focus on acceptance of an accused’s evidence as a reasonable possibility is that such terminology might imply that there is some sort of onus on an accused person to raise such a reasonable possibility. It is necessary therefore that trial judges are careful to balance these kinds of directions with a timely reminder that makes it plain that rejection of an accused’s evidence even as a reasonable possibility does not necessarily lead to the conclusion that the accused should be convicted. This is the very point which Doyle CJ made in Briske.

In my view, this is a very different case on its facts to Briske, Woods, and Molloy, however I respectfully agree with her Honour’s interpretation and analysis in Molloy for general application.
In this matter, after the judge gave his directions, he invited counsel to make comment, as is the usual course. Neither counsel requested a Liberato direction, or any further direction in relation to what the jury should consider if they rejected the defence. His Honour gave a final direction in relation to the evidence of the appellant’s character and that is all.
Counsel for the respondent referred to B & D (1993) 66 A Crim R 192 at 197. I set out the relevant paragraphs of Perry J’s judgment, referring to Chamberlain v R (No 2) (1983) 72 FLR 1:
Looking at the matter broadly, it is not for this Court to make too nice an analysis of the summing up divorced from the atmosphere of the trial. This is so particularly when no complaint to the trial judge was made by counsel for the accused on matters subsequently sought to be agitated before this Court on appeal:
If some aspect of the summing up is made a ground of appeal, appellate courts regard it as of great importance that an experienced defence counsel failed to object to it at the trial. Such an omission points strongly to the conclusion that in the atmosphere of the trial itself there was nothing about the summing up calculated to lead to a miscarriage of justice (Chamberlain (1983) 72 FLR 1, per Bowen CJ and Forster J (at 12)). See also Bray CJ in Carbone (No 2) (1976) 14 SASR 280 at 286-287.
In my view, the failure of counsel to request the further direction indicates that the summing up did not appear to lack proper direction on the question of onus of proof.
The appellant rightly concedes that a Liberato direction is not required at law. I do not consider that this case called out for one.
I would reject the appeal on this ground.
Grounds 2 and 3
Counsel for the appellant submitted that the judge did not adequately direct the jury on the evidence of intoxication, particularly in relation to the complainant. It was submitted that the judge should have related the complainant’s intoxication to credibility and reliability.
When directing the jury in relation to how to assess a witness, the judge made the following remarks:
… First, do you accept that you have a truthful witness, is the witness at least attempting to tell the truth about a particular incident? There may be no dispute about this, in this case, so far as some of the witnesses are concerned, or at least parts of the evidence of some of the witnesses. Then, if you are satisfied you have a truthful witness, is the witness nevertheless accurate in what he or she recalls? It is not unknown for truthful witnesses to sometimes be inaccurate because of the effects of alcohol, a drug or drugs, lapse of memory, passage of time, fear at the time of the alleged offence, lack of education, lack of maturity, or because the person has blocked out events. Those are some considerations that apply in this case and some of them probably don’t. Those are the sorts of considerations that are applicable when assessing whether or not, even though you might have a truthful witness, is the witness in fact reliable and accurate, and not surprising in this case members of the jury, the copious amounts of alcohol that seem to have been consumed all round are relevant to the question of whether or not, although you may have a truthful witness, is that witness nonetheless accurate.
If a witness gives evidence that is shown to be inconsistent with an earlier statement of that witness, then that is a matter you may take into account adverse to that witness’s credibility and reliability, but much would depend on how important the difference was and any explanation given for any difference or inconsistency.
The judge very clearly discussed the effect of alcohol for the jury’s consideration and assessment of the witnesses, including the complainant, whose intoxication was mentioned later. The above paragraph also relates intoxication to credibility and reliability.
The judge then directed the jury regarding the effect that intoxication may have had on the complainant:
In considering this aspect of the case there are a number of factors that you might like to consider. First, what was the relationship between the two on that night, and I am using the word ‘relationship’ very broadly. The accused said this was the first time they met, I think [the complainant] said that they may have met a couple of months before. You may not need to decide that difference. On the evidence, although it is a matter for you, she does not appear to have shown any sexual interest in him and vice versa. Secondly, you should consider whether, in her intoxicated state, she lost her inhibitions and did consent but has now forgotten that or is now unwilling and perhaps ashamed to admit that in the cold, hard, sober light of day.
I will just read that out to you again, members of the jury. You should consider whether, in her intoxicated state, she lost her inhibitions and did consent but has now forgotten that or is now unwilling and perhaps ashamed to admit it in the cold, hard, sober light of day.
…
The judge’s summing up in relation to the complainant’s intoxication was brief but pertinent. Prior to giving that direction, the judge made some helpful general remarks. He made these general remarks when discussing the evidence of the appellant’s intoxication and how it should be treated by the jury. These were:
You will remember the accused’s evidence that he believed that Danielle was consenting to the act of sexual intercourse and what is more was naked on top of him when he woke up. But you will also remember that he said that he had copious amounts of alcohol to drink even though he was a seasoned drinker. I touched on earlier that alcohol may affect your assessment of the reliability of a witness to tell an accurate story. It is common experience that intoxication by alcohol can have an adverse bearing on a person’s perception of relevant events. It is also common experience that intoxication can affect a person’s subsequent recall of relevant events.
To those general remarks I add this: because intoxication can affect or alter a person’s state of mind, intoxication must be relevant to consideration of the third ingredient of the charge. It is for you to decide what significance you attach to the evidence of the accused’s consumption of alcohol: Was there a misunderstanding in the mind of the accused in his intoxicated state about the willingness of the complainant to engage in sexual activity? Did the accused in his intoxicated state mistakenly believe that the complainant was consenting? Did the complainant behave in a manner that would or may have led the accused, in his intoxicated state, to think she was consenting?
Earlier in the summing up, the judge made the following remarks:
This is a matter that I think Mr Allen particularly touched upon, the exercise of assessing witnesses in those cases involves a two-stage inquiry. First, do you accept that you have a truthful witness, is the witness at least attempting to tell the truth about a particular incident? There may be no dispute about this, in this case, so far as some of the witnesses are concerned, or at least parts of the evidence of some of the witnesses. Then, if you are satisfied you have a truthful witness, is the witness nevertheless accurate in what he or she recalls? It is not unknown for truthful witnesses to sometimes be inaccurate because of the effects of alcohol, a drug or drugs, lapse of memory, passage of time, fear at the time of the alleged offence, lack of education, lack of maturity, or because the person has blocked out events. Those are some considerations that apply in this case and some of them probably don’t. Those are the sorts of considerations that are applicable when assessing whether or not, even though you might have a truthful witness, is the witness in fact reliable and accurate, and not surprising in this case members of the jury, the copious amounts of alcohol that seem to have been consumed all round are relevant to the question of whether or not, although you may have a truthful witness, is that witness nonetheless accurate.
If a witness gives evidence that is shown to be inconsistent with an earlier statement of that witness, then that is a matter you may take into account adverse to that witness’s credibility and reliability, but much would depend on how important the difference was and any explanation given for any difference or inconsistency.
Counsel for the respondent referred to R v Bedi (1993) 61 SASR 269 and R v Prasad [2009] SASC 131.
In Bedi, Duggan J at 273 stated that where there is evidence of intoxication and that evidence is capable of affecting any of the issues in the trial, the trial judge has a duty to identify the evidence of intoxication for the jury and relate it to the issues with appropriate directions on the law.
The issues in this case would be the appellant’s state of mind, particularly whether the appellant knew the complainant was asleep, the appellant’s assessment of the complainant’s behaviour on the night, the effect alcohol could have had on the way the complainant behaved, and the reliability and credibility of both the appellant and the complainant.
In Prasad, it was complained that the trial judge did not adequately direct on intoxication. More specifically, that the judge did not give clear direction on the effect that intoxication could have on the complainant’s behaviour on the night, her memory of the incident, and her credibility. The evidence regarding the complainant’s level of intoxication was clear and referred to by the judge.
Vanstone J said at [26]:
[26]As to whether any further directions were needed, it can be observed that in most cases a jury would need little, if any, assistance from a judge about the impact intoxication might have on sexual behaviour. On neither view was this a failed seduction, nor a case where liquor could have dulled the appellant’s appreciation of lack of consent. On the contrary, the two accounts had almost nothing in common and the injuries to the complainant, notably to her vulva, were not accounted for on the appellant’s evidence. I think the jury could not have failed to appreciate the impact that intoxication, and indeed the injuries, would have had upon the woman. She did not resile from that. There was, in my view, no specific matter which required elucidation by the judge arising from the evidence of intoxication.
The judge here did not expressly relate those general remarks to the complainant’s reliability and credibility. He did mention the complainant’s level of intoxication many times during the summing up. It must have been on the jury’s mind. The summing up must be considered in light of the atmosphere of the trial. On the whole, I consider that the jury were directed as to what use they might make of evidence of the complainant’s intoxication. It must also be remembered that the jury can make use of common experience: see R v Box [2001] QCA 272. I would therefore reject grounds 2 and 3 of the appeal.
Ground 4
The appellant submits that the trial judge failed to adequately point out why the complainant’s evidence required careful consideration and scrutiny. In my view, a reading of the direction at [67] and the ones immediately preceding it at [97] – [98] make it obvious why careful consideration was required.
As was pointed out by counsel for the respondent, the judge’s direction regarding scrutiny of the complainant’s version of the events immediately followed discussion of her intoxication. Her level of intoxication was such that her evidence may not have been reliable.
Also, in that direction the judge said “the prosecution relies almost exclusively upon the evidence of [complainant] in an endeavour to prove the charge of rape.” On a plain reading of that paragraph, the jury would have understood the risk of finding the appellant guilty on the complainant’s uncorroborated evidence. It was made clear to the jury that they were required to carefully consider the evidence of the complainant for that reason. I would also reject this ground of appeal.
Ground 5
In my view this ground is not made out. For the reasons I have given earlier in relation to the other four grounds of appeal, the verdict returned by the jury was reasonable and supported by the evidence.
Conclusion
In my view, it was made clear to the jury what their task was. I consider that the judge properly directed the jury in respect of the onus of proof and the standard of proof. There could not have been any confusion as to the requirement for the jury to find that the prosecution had proved its case, and each element of the charge, beyond reasonable doubt.
I would therefore dismiss the appeal.
DAVID J: I would allow the appeal. I agree with the reasons of Sulan J and the orders he proposes.