R v Daniel

Case [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

  1. SULAN J:             Hayden John Daniel was convicted by a majority verdict of a jury of rape.  This is an appeal against his conviction.

    Background

  2. 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 50th birthday celebration. 

  3. 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. 

  4. 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. 

  5. The complainant gave evidence that she recalled being put into the bed. She thought that she was vomiting again.  She recalled Anita patting…

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R v Daniel [2010] SASCFC 62
Case
[2010] SASCFC 62
Decision Date

CaseChat Overview and Summary

The appellant, R, was convicted of rape under s 48 of the Criminal Law Consolidation Act 1935. The charge alleged that the appellant had vaginal sexual intercourse with the complainant without her consent on 15 September 2007. The appeal was heard by Sulan, Anderson, and David JJ.

The grounds of appeal raised several issues concerning the trial judge's directions to the jury. These included whether the judge adequately directed the jury on the onus of proof, particularly in relation to the consequences of rejecting the appellant's evidence. Further grounds concerned the adequacy of directions on the third element of the offence of rape within the prosecution's case, the evidence of intoxication (specifically the complainant's intoxication), and why the jury should scrutinise the complainant's version of events closely. The appellant also argued that the jury's verdict was unreasonable or insupportable.

The appellate court found that the trial judge failed to give sufficient directions regarding the complainant's state of intoxication and its relevance to the reliability of her evidence. The judge's direction, which focused on the complainant potentially losing inhibitions but forgetting or being unwilling to admit her conduct, was deemed insufficient. Furthermore, the court held that the judge did not adequately direct the jury on how to approach their task if they did not accept the appellant's evidence. These failures were considered sufficient to constitute a miscarriage of justice.

Consequently, the appeal was allowed, the conviction was set aside, and an order for a retrial was made.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

ANDERSON J
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. 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 3rd 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.

Ratio Decidendi

Legal Principle Established

Established by: ANDERSON J

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