R v Davis and Hyland No. DCCRM-96-166 Judgment No. D3390

[1996] SADC 3390

Court

DISTRICT COURT OF SOUTH AUSTRALIA

Reasons For Ruling of His Honour Judge Lee (ex tempore)

Hearing

12/02/96 to 13/02/96.

Catchwords

Application on voir dire for exclusion of evidence of sexual intercourse without consent - applications for permanent stay of proceedings - accused acquitted of rape in connection with same act of intercourse in earlier proceedings - earlier proceedings fought on issue of consent - accused entitled to benefit of acquittal - whether the prosecution can lead complainant through a restricted narrative for purpose merely of setting the scene -whether direction to jury will secure a fair trial.

Materials Considered

• Garrett v R (1977) 139 CLR 437;
• R v Storey (1978) 140 CLR 364;
• Dietrich v The Queen (1992) 177 CLR 292, considered.

Representation

Crown DIRECTOR OF PUBLIC PROSECUTION:
Solicitors: Mr R Jensen

Defendant WILLIAM JOHN DAVIS:
Counsel: Ms A Vanstone QC with Mr J Richards - Solicitors: J Adam Richards

Defendant WILLIAMNEVILLE HYLAND:
Counsel: MR M SYKES - Solicitors: SYKES BISTRUP

DCCRM-96-166

Judgment No. D3390

13 February 1996

(Criminal)

JUDGMENT NO D3390

FILE NO: 166/96

TUESDAY, 13 FEBRUARY 1996

RULING OF HIS HONOUR JUDGE LEE

R V WILLIAM JOHN DAVIS & WILLIAM NEVILLE HYLAND

HIS HONOUR: I have before me for determination two applications on the voir dire.The accused Hyland seeks an order that certain evidence be excluded. Both accused seek an order that further proceedings be permanently stayed. The applications concern the Crown's stated intention to lead at the trial evidence from the complainant of an act of penile intercourse by the accused Hyland without the complainant's consent, notwithstanding that Hyland was acquitted in earlier proceedings of rape in connection with the same act of intercourse.

In those earlier proceedings Hyland was charged with six counts of rape and his co-accused Davis was charged with two counts of rape.Count 1 was the act of penile intercourse in question.Both accused were tried before Bollen J and a jury. As I have said, Hyland was acquitted on Count 1.His Honour directed that Hyland be acquitted on Counts 2 and 5 and the jury returned verdicts of guilty against him on Counts 3, 4 and 7.The jury also returned verdicts of guilty against Davis on Counts 3 and 6.

The verdicts of guilty against both accused were overturned by the Court of Criminal Appeal on 8 September 1995 and a retrial was ordered.The fresh information in the proceedings before me charges Hyland with three counts of rape and Davis with two counts of rape.Count 1, which was Count 3 of the previous information, charges Davis as the principal offender and Hyland as an aider and abettor.

In summary, the Crown case is that the complainant had been in the company of Hyland and Davis at a hotel before Hyland drove her to Davis's flat.They sat at the kitchen table and smoked cannabis.Hyland took hold of the complainant and pushed her against her will into a bedroom and onto a bed.He removed some of her clothing and committed sexual acts against her will, including the act of penile intercourse in question.Hyland left the bedroom and soon after returned with Davis.

Then the various acts of rape now charged in the fresh information took place. They are acts of penile intercourse against Davis and an aiding and abetting against Hyland, Count 1; cunnilingus against Hyland, Count 2; penile intercourse against Davis, Count 3; and penile intercourse against Hyland, Count 4.All the acts are said to have been committed in the same bedroom over a relatively short period of time.

The Crown says that notwithstanding the acquittal of Hyland in the earlier proceedings in connection with the first act of penile intercourse, evidence in relation to that intercourse, including the unwillingness of the complainant both in the kitchen and in the bedroom, should be led to give background and context to the subsequent acts charged and towards negativing consent in relation to those acts. Counsel for both accused submit that the evidence would necessarily involve a challenge to the acquittal of Hyland in the first proceedings and that no limitation placed upon the evidence and no direction to the jury would make the trial fair in any relevant sense.

Counsel have cited a number of authorities on the approach which the court should take to an application of this kind.The most important of them for present purposes seems to me to be Garrett v R (1977) 139 CLR 437 and R v Storey (1978) 140 CLR 364.It will be sufficient to quote passages from three of the judgments in Storey.

Gibbs J at 387:

'From this survey of the authorities it will have been seen that there is a well-established principle that a verdict of acquittal once given is binding and that the Crown cannot in subsequent proceedings seek to show that the accused was guilty of an offence of which he has previously been acquitted. Whether this principle is regarded as an extension of autrefois acquit, or as an application of the rule against double jeopardy, does not much matter.

Since the Crown cannot challenge an acquittal, and the accused is to be taken as entirely innocent of the offence of which he was previously acquitted, it must follow that evidence will be inadmissible if its only relevance is to show that the accused was guilty of an offence of which he has been acquitted.'

Jacobs J at 410:

'I cannot accept the discrimen of admissibility as being whether the matter sought to be proved in the second trial is a fact in issue in that trial as distinct from a fact relevant to a fact in issue in that trial.It seems to me that the essential basis of the rule against double jeopardy is that the jury in the trial for the second offence is not permitted to find against the defendant a fact, whether it be an element of the second offence or whether it be a fact relevant to the determination of the elements constituting that offence, which can be shown to have been an element of an offence in respect of which the defendant has been acquitted on an earlier trial and to have been certainly determined in his favour at that trial.'

Mason J at 397:

'Compliance with the principle of res judicata does not in my view necessarily entail the exclusion at a subsequent trial of relevant evidence which might on its face, if unexplained, tend to suggest that the accused was guilty of an offence of which he has already been acquitted. Sambasivam v Public Prosecutor, Federation of Malaya, did not go so far, leaving unresolved the question whether the statement should have been rejected in its entirety in that case.

The ground of that decision implicitly acknowledged that the requirements of res judicata may be satisfied in an appropriate case by the admission of evidence of this kind accompanied by a precise instruction to the jury that the prior acquittal cannot be challenged and that the evidence, for what it may be worth, is to be understood in this light. There are some cases, and the present is one of them, in which the exclusion of a part of the testimony of a material witness in deference to the principle of res judicata would render the balance of the witness' testimony so incomplete and artificial as to provoke dangerous speculation on the part of the jury. In such circumstances, provided that it works no injustice to the accused, it is preferable that the evidence of the witness should be led and precise instructions should be given to the jury as to the use to which that evidence can be put'.

It is also apparent from the judgment of Jacobs J at 409 that it is permissible to go behind and to interpret the verdict of acquittal in the first proceedings by looking at the transcript of the evidence which was given in those proceedings.

The Crown submits that the relevance of the first act of penile intercourse is not to show that the accused Hyland was guilty of rape on that occasion but, rather, as I have already said, to give background and context to the subsequent acts charged, and towards negativing consent in relation to those acts.

The difficulty I have with the Crown's submission is that Hyland will lose the benefit of his acquittal if the jury concludes that the first act of penile intercourse was without the complainant's consent. It is apparent from the transcript of the cross-examination of the complainant in the first proceedings that intercourse was conceded and that the defence case, at least with respect to that act, was fought on the issue of consent.I think that the jury must be taken to have concluded that the complainant's evidence on the issue of consent was not proven to their satisfaction beyond reasonable doubt. Hyland is entitled to the benefit of that conclusion, and I think that, given that this is a joint trial, Davis is entitled to the benefit of that conclusion as well.

In my opinion, any evidence which has the clear tendency to show that the complainant did not consent to the first act of penile penetration should be excluded.I do not see how the evidence could be made the subject of a direction to the jury which at one moment would uphold Hyland's innocence, yet in the next moment leave open a conclusion that the intercourse was without the complainant's consent.So I base my opinion upon two grounds: the wrongful admission of evidence which puts an accused person in double jeopardy, and the general discretion to reject evidence on the ground that its probative value is exceeded by its prejudicial effect.

To be more precise about the evidence to be excluded, I refer to the complainant's declaration concerning the force used by Hyland in the kitchen to push her into the bedroom, the force used by Hyland with respect to all acts to and including the first act of penile intercourse and the complainant's unwillingness to submit to all acts to and including the first act of penile intercourse.

I wish to make it clear that, insofar as the accused Davis is concerned, my decision to exclude evidence assumes that the accused Davis and Hyland are to be tried jointly on the information presented to this court on 12 February 1996. Different considerations might apply if Davis were to be tried separately.

My ruling with respect to the exclusion of evidence brings me now to the applications by both accused for a permanent stay of proceedings.I begin with the proposition that the inherent jurisdiction of courts extends to a power to stay proceedings in order to prevent an abuse of process or the prosecution of a criminal proceeding which will result in a trial which is unfair:Dietrich v The Queen (1992) 177 CLR 292 at 300.Most of the submissions advanced by counsel on the topic of fairness were directed at the evidence which I have now excluded.Nevertheless, as I understand the submissions of counsel for Davis, even in the absence of that evidence, the accused will be prevented in the conduct of their defence from demonstrating that the first act of penile penetration was consensual.The point needs to be made that I have not excluded all of the events in the kitchen and the bedroom in connection with the first act and it may be that the Crown can lead the complainant through a restricted narrative for the purpose merely of setting the scene.Counsel for the defence would then be at liberty to cross-examine the complainant and to conduct their cases generally with a view to showing that the first act of penile intercourse was consensual.

With respect to any denials which the complainant might make in response, I would need to direct the jury that Hyland was acquitted of the charge of rape in connection with the first act and so they are bound as a matter of law to accept that the first act was committed with the complainant's consent.Other directions might suggest themselves as the trial proceeds.

Although counsel for Davis submits that the problem of an appropriate direction is insoluble, I am unpersuaded - at least at this stage - that the means for securing a fair trial simply do not exist.

Before ruling finally on the applications for a permanent stay, I invite the Crown Prosecutor to consider and then to indicate what evidence the Crown would now wish to lead if the trial is to proceed.