R v El Rifai
[2012] SASCFC 98
•10 August 2012
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v EL RIFAI
[2012] SASCFC 98
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice David and The Honourable Justice Kelly)
10 August 2012
CRIMINAL LAW - EVIDENCE - COMPLAINTS - ADMISSIBILITY OF DETAILS AND FACT OF COMPLAINT
CRIMINAL LAW - EVIDENCE - COMPLAINTS - OTHER MATTERS
CRIMINAL LAW - EVIDENCE - COMMENT ON FAILURE TO GIVE EVIDENCE - BY PROSECUTION
CRIMINAL LAW - PROCEDURE - JURIES - OTHER MATTERS
CRIMINAL LAW - PROCEDURE - JURIES - SEPARATION
Appeal against conviction - appellant convicted by majority verdict of jury of one count of rape - whether complaint evidence led at trial was properly admitted - whether the trial Judge erred in not directing the jury about the evidence of distress of the complainant at the time when the complaint was made - whether a comment made by the prosecutor in the final address regarding the failure of the appellant to give evidence breached section 18(1)(b) of the Evidence Act 1929 (SA) - whether the verdict was unreasonable and against the weight of the evidence - whether the trial Judge erred in placing the jury under undue pressure to reach a verdict within a specified time.
Held per David J (Kelly J concurring): Appeal dismissed - the complaint was admissible and the directions given by the trial Judge conformed with the requirements of section 34M of the Evidence Act - there was no reason for the trial Judge to give a direction about the complainant’s state of distress at the time of making the complaint - whilst the prosecutor’s comment on the appellant’s failure to give evidence was a clear breach of section 18(1)(b) of the Evidence Act its benign nature would not have caused a miscarriage of justice - the verdict was not unreasonable and against the weight of the evidence - the trial Judge did not place undue pressure on the jury to bring in a verdict.
Held per Gray J (dissenting): Appeal allowed - the directions given in regard to the so-called initial complaint were, in the circumstances, errors of law - there was no independent evidence to support the complainant’s evidence - the impugned directions had given rise to a risk of a miscarriage of justice - the inappropriate pressure placed on the jury also gave rise to a risk of a miscarriage of justice - a retrial should be ordered.
Criminal Law Consolidation Act 1935 (SA) s 48 and s 353(1); Evidence Act 1929 (SA) s 18 and s 34M; Juries Act 1927 (SA) s 55; Statutes Amendment (Evidence and Procedure) Act 2008 (SA), referred to.
R v Harrison (1997) 68 SASR 304, distinguished.
K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501; Kilby v The Queen (1973) 129 CLR 460; Crofts v The Queen (1996) 186 CLR 427; R v BWT (2002) 54 NSWLR 241; R v H, T (2010) 108 SASR 86; R v Harrison (1997) 68 SASR 304; R v Szejnoga (1998) 199 LSJS 97; R v S, DD (2010) 109 SASR 46; Siebel v The Queen (1992) 57 SASR 558; M v The Queen (1994) 181 CLR 487; R v Nguyen (2010) 242 CLR 491; Black v The Queen (1993) 179 CLR 44, considered.
R v EL RIFAI
[2012] SASCFC 98Court of Criminal Appeal Gray, David and Kelly JJ
GRAY J.
This is an appeal against conviction.
The defendant and appellant, Ammar Abdul Aziz El Rifai, was charged with the offence of rape, contrary to section 48 of the Criminal Law Consolidation Act 1935 (SA). The Information contained the following particulars:
Ammar Abdul Aziz Elrifai [sic] on the 11th day of September 2010 at Glenelg, had sexual intercourse with [the complainant], without her consent, by performing an act of cunnilingus upon her.
On 25 November 2011, the defendant was convicted by a majority jury verdict of the offence as charged, following a trial in the District Court.
During the prosecution case, evidence was led from the complainant, her work supervisor to whom it was said a complaint had been made and a police officer who interviewed the defendant. A plan of the defendant’s premises, a disc recording the defendant’s interview by police and an edited transcript of the record of interview were received in evidence as part of the prosecution case. No evidence was called in the defence case, although the defendant relied on what were said to be exculpatory statements made in the police record of interview.
The complainant, an 18 year old woman employed as an apprentice at the time of the alleged events, was working on a construction site in Adelaide. The defendant also worked at the site.
On Saturday 11 September 2010, both were at work during the morning. They finished at about 2.00 pm. The complainant went with the defendant and another person to a take away food shop in the central business district of Adelaide. They spent about half an hour over lunch and during that time, several other workmates joined them. The defendant paid for the complainant’s lunch. The complainant said that the defendant asked the complainant to “drop” the defendant at his home in Glenelg. She agreed to do so.
The complainant gave evidence that while driving to Glenelg, the defendant suggested stopping at a coffee shop or a hotel. The complainant said she did not want to go to a hotel. They agreed to go to a coffee shop near the home of the defendant but could not find a park and, as the defendant’s home was nearby, they drove directly to his home. This was the first time that the complainant had been to the defendant’s home. When they entered the house there was nobody else present. The complainant had no expectation that there would be anyone else there.
The complainant described the defendant’s home as having a kitchen and meals area, a lounge room and several bedrooms. At some point while at the defendant’s house, the complainant walked through the house and looked at all of the rooms. The defendant then sat on a sofa in the lounge room and the complainant sat next to him. The complainant said that the defendant tried to kiss her but she was unsure whether he did kiss her or not. The complainant claimed that she said “no” to him kissing her and that he reacted by saying he would not do it again.
The defendant went into a bedroom and the complainant followed. Both sat on the bed. They had general conversation and the defendant then asked the complainant whether she wanted to be his girlfriend. She said no. He asked why. The complainant asked the defendant his thoughts on religion and sexuality. She explained in evidence that she did this because she wanted to tell him that she was “gay” and wanted to be confident that he would not react adversely.
The defendant asked if he could touch the complainant to which she responded “no”. He asked again and said he “wouldn’t put any fingers in”. The complainant understood that he was referring to her vagina. He was calm when he said these things to her. His voice got slightly stronger, but not aggressive or forceful. The complainant said that at this time she was feeling uncomfortable, scared and pressured.
The complainant remained sitting on the bed. The defendant put his hand down her pants and then after a time he put his finger into her vagina. At that time she was wearing a long sleeved over shirt and long pants with underwear. She was unsure whether he said anything to her before he put his finger into her vagina. She was unsure whether she said anything to him at that time. She remained in the bedroom with him for a minute or two.
The defendant then suggested that they go to another room and the complainant went with him into the other bedroom. She went in first and he followed. She sat on the bed and the defendant stood in front of her. She was unsure whether he said anything to her at that stage.
The complainant alleged that the defendant put his hands on her knees and pushed them apart and pulled her trousers down. He did this by undoing the button and then pulling them down. At this time she was still seated on the bed. She did not move. There was no conversation between them at that time. She alleged she tried to get up but did not try to stand up. The defendant then performed an act of cunnilingus upon her. She described feeling really uncomfortable at that time. She was unsure whether she said no to him. She then lay back on the bed. The defendant stopped and the complainant got up and pulled her pants up. She remained in the bedroom with him for a couple of minutes. The defendant asked for her telephone number and they exchanged telephone numbers.
The complainant left the defendant’s home and drove to her home where she lived with her parents and younger brother. She did not complain at that time.
The complainant gave evidence that the first person that she told about the incident was a work supervisor, Rudiger Totzenberger. This occurred about a month later. She claimed she told Mr Totzenberger that she had been “molested” and that the defendant had put his fingers inside her vagina. No complaint was made about any act of cunnilingus. During evidence-in-chief, the complainant gave the following account of her conversation with Mr Totzenberger:
Q.Can you tell the court, as best you can remember, what words you said to [Mr Totzenberger].
A.I said that me, along with a couple of other people, went out to have lunch after work on a Saturday and then I said I took one person home and then - that I went inside his house and then I found it a bit hard, so [Mr Totzenberger] was trying to comfort me and because at that point in time I hadn't really accepted in my mind what had happened, so I used the word ‘molested’, and then [Mr Totzenberger] was comforting me and encouraging me to speak about it and then I eventually told him that it was [the defendant] that had done it and then [Mr Totzenberger] ended up going to the project management and getting him taken off site.
Q. You used the word ‘molested’ in your evidence just then.
A. Yes.
Q. Did you say that word to [Mr Totzenberger].
A. Yes.
Q. Did you describe to [Mr Totzenberger] what had actually happened inside the flat.
A. I told him that he had put his fingers inside of my vagina but I left out the rest of it.
Q. By ‘the rest of it’, what do you mean.
A. The part that happened in bedroom 1.
Q. Why did you leave that out.
A. It was hard enough even bringing it up, so I thought that was enough.
Q. How were you feeling when you spoke with [Mr Totzenberger].
A. Upset.
Q.And were you actually physically upset when you were talking with [Mr Totzenberger].
A. Yes.
During cross-examination the complainant accepted that she had told the police that she thought if she went to a hotel with the defendant he might pressure her into having sex, but nevertheless had gone into his home alone. The complainant was unsure as to whether when they first arrived at the defendant’s home she asked to be shown through or whether he offered to do so. The complainant also accepted that she gave her telephone number to the defendant and that she may have volunteered that information without any request.
Mr Totzenberger gave evidence of the conversation he had had with the complainant in October 2010. He recounted that she came to his worksite office and started crying. He asked her what was the matter and she shook her head. She made a complaint about another person at this time. He calmed her, sat her down and asked her again what was the matter. She said that she had been sexually abused. He asked her how. She said she had been out to lunch with work colleagues and then drove with the defendant to his residence. She said that while in the motor vehicle the defendant had penetrated her vagina with his fingers.
The complainant told Mr Totzenberger that she felt scared and trapped. She could not move in the position she was in and the defendant put his hands down her dress and put his fingers into her vagina. She did not allege any other sexual act. She did not make any complaint that the defendant had performed an act of cunnilingus on her. She made no complaint of any sexual act inside the house. Mr Totzenberger said that the complainant had not used the word “molested”.
The defendant’s record of interview was tendered. During the course of that interview the defendant agreed that on 11 September 2010 he had had lunch with the complainant. He denied that there had been any sexual contact. He did accept that he had tried to hug and kiss the complainant but said that nothing beyond that had occurred.
The Appeal
The So-Called Initial Complaint
The evidence of the complainant’s conversation with Mr Totzenberger was treated by the prosecution and the Judge as relevant and admissible evidence under section 34M of the Evidence Act 1929 (SA). At trial, defence counsel did not object to admissibility as such, however it was contended that the evidence was inconsistent with both the prosecution case and the complainant’s account. Before coming to discuss the complaints made about the Judge’s summing up, it is convenient to first address the terms of section 34M of the Evidence Act:
(1) This section abolishes the common law relating to recent complaint in sexual cases.
Note—
See Kilby v The Queen (1973) 129 CLR 460; Crofts v The Queen (1996) 186 CLR 427
(2) In a trial of a charge of a sexual offence, no suggestion or statement may be made to the jury that a failure to make, or a delay in making, a complaint of a sexual offence is of itself of probative value in relation to the alleged victim's credibility or consistency of conduct.
(3) Despite any other rule of law or practice, evidence related to the making of an initial complaint of an alleged sexual offence is admissible in a trial of a charge of the sexual offence.
Examples—
Evidence may be given by any person about—
• when the complaint was made and to whom;
• the content of the complaint;
• how the complaint was solicited;
• why the complaint was made to a particular person at a particular time;
• why the alleged victim did not make the complaint at an earlier time.
(4) If evidence referred to in subsection (3) is admitted in a trial, the judge must direct the jury that—
(a) it is admitted—
(i)to inform the jury as to how the allegation first came to light; and
(ii)as evidence of the consistency of conduct of the alleged victim; and
(b) it is not admitted as evidence of the truth of what was alleged; and
(c)there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person,
but that, otherwise, it is a matter for the jury to determine the significance (if any) of the evidence in the circumstances of the particular case.
(5) It is not necessary that a particular form of words be used in giving the direction under subsection (4).
(6) In this section—
complaint, in relation to a sexual offence, includes a report or any other disclosure (whether to a police officer or otherwise);
initial complaint, in relation to a sexual offence, includes information provided by way of elaboration of the initial complaint (whether provided at the time of the initial complaint or at a later time).
This section regulates evidence relating to a complaint in a sexual case. Subsection 34M(3) is critical when addressing admissibility. It is “evidence related to the making of an initial complaint of an alleged sexual offence [that] is admissible in a trial of a charge of the sexual offence”.
The use of extrinsic materials was discussed by French CJ in K-Generation v Liquor Licensing Court:[1]
The question whether extrinsic materials may be considered in South Australia and in what circumstances they may be considered as an aid to statutory interpretation is to be answered by the common law. The answer at common law is that such materials can be considered to determine, inter alia, the mischief to which an Act is directed. This Court has referred to Hansard in aid of its interpretation of South Australian statutes.[2] In 1996 the Full Court of the Supreme Court of South Australia referred to a minister's Second Reading Speech in order to identify the purpose of a statutory provision.[3]
At common law it is not necessary before entering upon a consideration of such material to surmount a threshold of ambiguity, obscurity or possible absurdity. Statutory interpretation requires the court to have regard to the context in which the words to be interpreted arise and also their statutory purpose. Context includes “the existing state of the law and the mischief which, by legitimate means … one may discern the statute was intended to remedy”.[4]
[1] K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501, [51]-[52].
[2] Gerhardy v Brown (1985) 159 CLR 70 at 104 (Mason J) at 111 (Wilson J); Hoare v R (1989) 167 CLR 348 at 360-1.
[3] Owen v South Australia (1996) 66 SASR 251 at 256–7 (Cox J), 257 (Prior J); see also Nemer v Holloway (2003) 87 SASR 147 at 166–7 (Vanstone J); and generally, in relation to South Australia, Pearce, D C, and Geddes, R S, Statutory Interpretation in Australia (6th ed, 2006) at 70–1.
[4] CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408.
In accordance with the above observations, it is instructive to consider the history of the Statutes Amendment (Evidence and Procedure) Bill (SA) and the intention of Parliament in enacting section 34M.
At common law, a prior consistent statement of a witness is not generally admissible. The relevant evidence to be relied on is that which the witness gives in court. The “bolster rule” prevents tendering of a witness’ prior consistent statements to support their testimony by making consistent corroborative statements prior to coming to court. There exist, however, exceptions to the bolster rule. The evidence of a victim’s initial complaint in sexual cases in evidence-in-chief is admissible on the ground that it is relevant to credit.
At common law, prior to the enactment of section 34M, a trial judge in sexual cases was required to provide certain directions in relation to an initial complaint made by a victim. One such direction arose from the case of Kilby[5] in relation to recent complaints. A Kilby direction required a trial judge to direct the jury that delay in making a complaint was significant in assessing the credibility of a complainant.[6] Kilby[7] was emphatic in rejecting inferences of consent from failure to complain immediately after the alleged sexual act occurred. In light of Kilby, a complaint at common law is only ever admissible in support of a complainant’s credibility, irrespective of whether consent is in issue.[8]
[5] Kilby v The Queen (1973) 129 CLR 460.
[6] Kilby v The Queen (1973) 129 CLR 460, 469.
[7] Kilby v The Queen (1973) 129 CLR 460.
[8] Kilby v The Queen (1973) 129 CLR 460.
Another example of a direction required in regard to complaints in sexual cases is to be found in the decision of Crofts.[9] A convenient summary of the direction in Crofts can be found in the judgment of Wood CJ at CL’s in BWT:[10]
The Crofts direction (Crofts v The Queen (1996) 186 CLR 427), if a jury is to be informed, in accordance with s 107 of the Criminal Procedure Act 1986, that a delay in complaint does not necessarily indicate that the allegation is false, and that there may be good reasons why a victim of sexual assault may hesitate in complaining about it, then it should also be informed that the absence of a complaint or a delay in the making of it may be taken into account in evaluating the evidence of the complainant, and in determining whether to believe him or her (but not in terms reviving the stereotyped view that complainants in sexual assault cases are unreliable or that delay is invariably a sign of the falsity of the complaint: Crofts (at 451)).
[Emphasis in original].
This is known as a Crofts direction and failure to provide this direction is relevant to assessing whether there has been a risk of a miscarriage of justice.
[9] Crofts v The Queen (1996) 186 CLR 427.
[10] R v BWT (2002) 54 NSWLR 241, [32].
Section 34M is explicit in that it abolishes the need for courts to give Kilby and Crofts directions. In explaining the abolition of the common law relating to recent complaint in sexual cases, the Attorney-General said the following in the second reading speech for the Statutes Amendment (Evidence and Procedure) Act 2008 (SA) in the House of Assembly in relation to section 34M:[11]
This Bill deletes section 34I of the Act and replaces it with a new provision (section 34M) that expressly abolishes the common law on the admissibility of recent complaint in sexual cases, including the Kilby/Crofts directions. It forbids any suggestion or statement to a jury that the timing of the reporting of a sexual offence has an inherent significance for the complainant’s credibility or consistency of conduct. It allows the admission of evidence of a complainant’s initial report of a sexual offence, if relevant, whenever that occurred. That evidence may be given by any person about when the report was made and to whom, its content, how the complaint was solicited, why the complainant reported the alleged offence to that person at that time and why the complainant did not report the alleged offence to someone else at an earlier time (if relevant).
[11] South Australia, Parliamentary Debates, House of Assembly, 25 October 2007, 1460 (Attorney-General).
The Attorney-General continued:[12]
When admitting such evidence in a trial before a jury, the judge must give the jury specific directions about how to treat the evidence, but is not bound to use a particular form of words in doing so. The judge must direct the jury that this is hearsay evidence that may not be used as evidence of the truth of what was alleged; that the reason it is admitted is to show how the allegation first came to light; that there may be any number of reasons for the alleged victim of a sexual offence reporting the allegation to a particular person at a particular time; and that it is the jury's job to determine what significance, if any, should be given to the evidence of that report in the circumstances of the particular case.
[12] South Australia, Parliamentary Debates, House of Assembly, 25 October 2007, 1460 (Attorney-General).
The “Explanation of Clauses”, reinforcing the prohibition on commenting negatively to the jury on delay in complaint as it relates to a victim’s credibility or consistency of conduct, further explained section 34M in the following terms:[13]
New section 34M abolishes the common law relating to recent complaint in sexual cases; that is, the rule that currently applies in relation to the giving of a Kilby or Crofts direction, and substitutes a statutory scheme in its place. The new section forbids the making of a suggestion or statement to the jury that a delay in making a complaint etc is of itself of probative value in relation to the alleged victim's credibility or consistency of conduct. This reflects modern perceptions related to the reasons a complainant may choose not to make a complaint at the earliest opportunity. Consequently, the section provides that evidence related to the making of a complaint is admissible in certain trials. However, certain directions and warnings must be given to juries in relation to such evidence of the kind set out in the provision.
[13] South Australia, Parliamentary Debates, House of Assembly, 25 October 2007, 1466 (Attorney-General).
The intended effect of section 34M is to abolish the common law of recent complaints. The effect of the statutory regime on the common law of recent complaints was considered in H, T in the following terms: [14]
[14] R v H, T (2010) 108 SASR 86, [14], [42], [45], [46], [47].
The section commences with the abolition of the "common law relating to recent complaint in sexual cases". A note makes reference to the High Court decisions of Kilby[15] and Crofts.[16] These authorities are a convenient reference to the common law position. The section makes plain that evidence of complaint is not to be treated as evidence of the truth of the alleged incident. By this provision, Parliament re-enacted a significant component of the common law. It follows that evidence of complaint, if admissible, and if admitted, could have relevance to the question of credibility — what the legislation describes as "consistency of conduct" — but could not be used as evidence of the truth of the alleged incident.
[15] Kilby v The Queen (1973) 129 CLR 460.
[16] Crofts v The Queen (1996) 186 CLR 427.
…
Section 34M recognises the continuing existence of the overriding judicial discretion to decline to admit into evidence otherwise admissible evidence. Section 34M(3) provides that evidence related to the making of an initial complaint of an alleged sexual offence is admissible in a trial of a charge of the sexual offence. Parliament through this subsection addressed admissibility. By the enactment of s 34M, Parliament removed the requirement of recency as a criterion for the admissibility of complaint evidence. There is nothing in the wording of s 34M(3) to require that evidence to be admitted. In particular, nothing in the section, nor the Second Reading Speech nor any of the relevant materials suggests in any way that s 34M abrogated the overriding common law discretion to exclude otherwise admissible evidence. Had Parliament intended to remove the common law discretion, it would have directed that the evidence be admitted. This conclusion is reinforced by the terms of s 34M(4) and, in particular, the words "[i]f evidence referred to in subsection (3) is admitted in a trial, the judge must direct". The use of the word "if" contemplates that a judge may in the exercise of judicial discretion not admit the evidence. This conclusion is further reinforced by the presumption against abrogation of the common law earlier outlined.
…
Returning to the provisions of s 34M, once the evidence is admitted, the judge is to direct the jury that the evidence is admitted to inform the jury as to how the allegation first came to light; that it is admitted as evidence of the consistency of conduct of the alleged victim; that it is not admitted as evidence of the truth of what was alleged; that there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person; but that otherwise, it is a matter for the jury to determine the significance (if any) of the evidence in the circumstances of the particular case.
It is clear that in enacting s 34M, Parliament re-enacted major portions of the common law and, in particular, that a complaint was not evidence of the truth of what was alleged. It follows that the only other basis of admissibility is the credibility of the complainant. This was recognised in J, JA, where Duggan J observed:[17]
…
“… Consistency of conduct is relevant to a consideration of the credibility of a complainant. In Suresh v The Queen Gaudron and Gummow JJ said:
[The complaint] is admitted not as evidence of the facts in issue, R v Lillyman [1896] 2 QB 167, but as evidence of consistency which buttresses the credit of the complaint: Kilby v The Queen (1973) 129 CLR 460[PDF] at 472 per Barwick CJ.
This was the position at common law, but it must also be so in the case of a complaint made admissible by s 34M. The principal relevance of the evidence remains that of consistency. This in turn constitutes a buttress to the evidence of the complainant. The trial judge's use of language was appropriate: the jury were told that the evidence was relevant to consistency and “therefore the credibility of the complainant's evidence”.”
(Footnotes omitted; emphasis added.)
These remarks make clear that if evidence of complaint is relevant to show consistency of conduct, that evidence may buttress the complainant's credibility. These remarks reinforce the position that the evidence of complaint is not admitted as evidence of the facts in issue. In my view, this Court should follow these observations. The manner in which this matter was addressed by Duggan J is the only way to make sense of the legislation.[18]
[17] R v J, JA (2009) 105 SASR 563 at [92]-[93].
[18] It is to be observed that Nyland and White JJ agreed with the observations of Duggan J.
Section 34M(3) provides that evidence related to the making of an initial complaint of an alleged sexual offence is admissible. It is clear that Parliament here was addressing admissibility. This subsection stops short of directing that such evidence be admitted. This is clear from the terms of subsection 34M(4) which provides that in the event of evidence referred to in subsection (3), the judge must direct the jury in the specified terms. To my mind, the trial Judge still retained the overriding discretion to decline to admit into evidence admissible material on the ground of unfairness.
It is important to recognise that section 34M(3) addresses evidence relating to the making of an initial complaint when the subject of that complaint then forms a charge before the court. It is clear from the second reading speech that the reason for the provision was to show “how the allegation first came to light”[19] and that there may be “any number of reasons for the alleged victim of a sexual offence reporting the allegation to a particular person at a particular time”.[20]
[19] South Australia, Parliamentary Debates, House of Assembly, 25 October 2007, 1460 (Attorney-General).
[20] South Australia, Parliamentary Debates, House of Assembly, 25 October 2007, 1460 (Attorney-General).
The Trial and the Summing Up – Section 34M
At the outset of the trial, it appears that all concerned anticipated that there would be evidence from the complainant of a relevant initial complaint. During the opening, little detail was proffered as to the proposed evidence. The prosecution had disclosed a statement of Mr Totzenberger which was also lacking in any detail as to the precise nature of the complaint.
It is against this background that the evidence came to be led. As noted above, the complainant did not at any time during her evidence suggest that she had made an initial complaint that the defendant had performed an act of cunnilingus. Mr Totzenberger, in his evidence, said that no such complaint had been made. It is apparent that at some later unidentified point of time, an initial complaint of an act of cunnilingus must have been made.
This problem was compounded by the respective accounts given by the complainant to Mr Totzenberger of the conversation. Again, as noted above, the complainant gave evidence of an act of digital penetration of her vagina in the bedroom of the defendant’s home. She asserted that she made a complaint of being molested by this act to Mr Totzenberger. The complainant gave evidence that she did not complain of an act of cunnilingus. In his evidence, Mr Totzenberger confirmed that such a complaint had not been made. Further, he specifically denied that the complainant had said she had been molested. Mr Totzenberger said that the complaint was only in respect of an act of digital penetration of the vagina. Further, the complaint was that this act took place in a motor vehicle outside the house. There was no complaint about any form of sexual assault inside the house. Mr Totzenberger later expressly confirmed that the complainant had told him that the act of digital penetration had taken place in the motor vehicle while it was parked outside the house.
There is one further matter of relevance. According to the complainant’s evidence, the incident in the house occurred following a morning working on a building site and at the time she was in her working clothes, consisting of a shirt and trousers. According to Mr Totzenberger, the complainant gave an account of being in a dress while in the motor vehicle when the alleged digital penetration occurred.
As a consequence, the evidence before the Court did not assert or even imply that at any time there had been a complaint that the defendant had performed an act of cunnilingus on the complainant. There was simply no complaint of the sexual act the subject of the charge as particularised in the Information.
The accounts of the complainant and Mr Totzenberger concerning their conversation, as given in evidence, were irreconcilable. Although they agreed that there had been a complaint of digital penetration of the vagina, they disagreed as to the circumstances of the location where the act was said to have taken place and the manner of dress of the complainant. Mr Totzenberger recounted that the complainant had said that the defendant had covered her with his body in the motor vehicle so that she could not move. The complainant’s account of the conversation related to an event in the house. A starker contrast exists when regard is had to the complainant’s evidence before the Court of the incident in the house. In that account, considerable particularity is provided about the complainant’s movements in the house where it was alleged that the act of digital penetration occurred.
The Judge, in summing up, recognised these difficulties when he observed:
In this case, the accused argues that what [the complainant] told Mr Totzenberger was inconsistent with her evidence to the court. You will recall the evidence of Mr Totzenberger that [the complainant] complained to him about events which occurred in her car in the street outside the home of the accused. Her evidence to the court on the other hand related to events which took place in two of the bedrooms of the apartment. They are quite different events, different events which are quite inconsistent. If you accept the evidence of Mr Totzenberger, and no reason has been advanced as to why you should not, his evidence contradicts the evidence of [the complainant] as to what she told you had happened in the apartment.
…
What you are left with is evidence of two quite different sets of circumstances. The defence would argue that the fact that [the complainant] has told two separate stories casts a serious doubt upon her evidence. The defence would argue that at the very least there is a reasonable doubt as to whether the evidence of [the complainant] as to the events which occurred in the two bedrooms should be accepted.
Not only did [the complainant] describe a completely different event which was in the car, but she failed to mention to Mr Totzenberger any sexual assault in the apartment. Additionally she referred to finger penetration but she did not tell Mr Totzenberger about an act of cunnilingus.
[Emphasis added.]
On the hearing of the appeal, no complaint was made about the Judge’s observations emboldened above.
The Judge’s summary of the evidence demonstrates that there was no complaint that could be related to the charge before the Court. Neither the complainant’s evidence as to her complaint nor Mr Totzenberger’s account were remotely connected to a charge of cunnilingus. In this circumstance, the Judge should not have addressed the jury in terms of section 34M(3). The evidence of the complainant was inadmissible as evidence of complaint, but having been admitted, could be subjected to a comparison to her out of court statement to Mr Totzenberger. The members of the jury were entitled to consider the different accounts when assessing the credibility and reliability of the complainant’s evidence.
Earlier in the Judge’s summing up, observations were made concerning section 34M:
Ladies and gentlemen, I need to give you a direction of law about the circumstances in which [the complainant] made her initial complaint about the alleged events. As you know, there was a period of time between the Saturday afternoon and the time when [the complainant] first told anyone else about the alleged offence.
You heard evidence of her complaint to the other person. That is the complaint that [the complainant] made to Mr Rudi Totzenberger. Normally evidence of such a complaint would be considered hearsay and would not be allowed to be put before the jury. However, there is an exception to the general rule which allowed you to hear the evidence of Mr Totzenberger.
The difficulty with this aspect of the summing up is that the Judge treated the evidence of the complainant as being “her initial complaint about the alleged events”. As is evident from the earlier extracted passages, the Judge recognised that there was no initial complaint about the alleged act of cunnilingus. The Judge should have directed the jury that there had been simply no complaint about the alleged events.
The Judge then continued to discuss with the members of the jury what use they may make of the evidence and in that respect observed:
A jury is allowed to hear evidence of such a complaint for a number of reasons. First, the evidence of Mr Totzenberger informs you as to how the allegation first came to light. It gives you a more complete picture of the account of [the complainant]. You will recall that he said that she had two complaints, one about another man, I think his name was Mohammed, and then having raised the problem with Mohammed, she went on to tell him about the accused.
The second reason why the jury is allowed to hear the evidence of the complaint to Mr Totzenberger is that that evidence enables you to assess whether there has been consistency of conduct on the part of [the complainant]. Do the circumstances of the making of the complaint appear consistent with the occurrence of the events which are the subject of the complaint?
Ladies and gentlemen, please remember that the evidence of the complaint to Mr Totzenberger is not put before you as evidence of the truth of what had happened. You can only have regard to what [the complainant] told you in court for that purpose. That is, the only evidence of the act of cunnilingus is what [the complainant] told you in the witness box in this courtroom.
The statement of Mr Totzenberger is before you for the purpose which I have mentioned. That is, to demonstrate consistency of conduct on the part of [the complainant] or maybe inconsistency of conduct. That is a matter for you to consider. It is for you to determine significance of the evidence of the complaint to Mr Totzenberger in the circumstances of this case.
These passages in the summing up give rise to particular problems. On the one hand, the Judge correctly directed the jury that the evidence of the complaint to Mr Totzenberger was not before them as evidence of the truth of what had occurred. This is a rather odd direction, given the Judge’s later comments of the complaints giving rise to “different events which [were] quite inconsistent”. However, in the paragraphs extracted above, the Judge informed the jury that the evidence of Mr Totzenberger provided a “more complete picture of the account of [the complainant]”. The use of this phrase invited the members of the jury to treat the evidence of the complaint as being evidence of fact, allowing them to fill in or complete inadequacies of the account of the complainant.
The Judge, in the extracted passage, made reference to the evidence, allowing the members of the jury to assess whether there had been consistency on the part of the complainant with the occurrence of the events the subject of the complaint. Having made that statement, the Judge then told the jury, “the statement of Mr Totzenberger is before you … to demonstrate consistency of conduct on the part of [the complainant]”. The Judge then added, “or maybe inconsistency of conduct”. This statement of the Judge was directly at odds with the earlier extracted and emphasised statements about the accounts being “quite inconsistent”, being “evidence of two quite different sets of circumstances” and being descriptions of “completely different events”. As discussed above, whichever way the matter is viewed, the evidence did not and could not establish consistency. Any analysis of the evidence demonstrated marked inconsistency.
As discussed above, under section 34M, the statements that are made are not admissible as proof of the truth of the statement, but rather to establish consistency of conduct of the complainant that, if established, buttresses the complainant’s credit. In the circumstances of the present proceeding, the complaint made had no capacity to buttress the credibility of the complainant.
The Judge, during this part of his summing up, made the following further observation:
You heard the evidence of [the complainant] as to her reasons for not mentioning the alleged offending earlier to persons such as her parents or her brother. Her reasons for raising the matter with Mr Totzenberger may help explain why she didn’t complain to her family.
In this passage the Judge refers to “the alleged offending” and the raising of the matters with Mr Totzenberger. The difficulty again arises that the incident the subject of the charge was not the subject of the complaint to Mr Totzenberger. The alleged offending was not raised with Mr Totzenberger. There was no complaint of an act of cunnilingus.
In the course of the extracted remarks, the Judge directed the members of the jury that they were “allowed to hear evidence of such a complaint for a number of reasons”, including as it informed the members of the jury “as to how the allegation first came to light. This, to my mind, is a misstatement. The allegation being referred to is the act of cunnilingus the subject of the Information. The evidence of the conversation between the complainant and Mr Totzenberger did not inform them of how this allegation first came to light.
In my view the ultimate difficulty with the topic of complaint in the present trial was that section 34M was not enlivened. The evidence of complaint was not evidence that was in any way referable to the complaint as charged and particularised. It was simply not a relevant complaint. It was a complaint of a different offence of rape conducted in a different location by different conduct and at a different time. It would have been relevant evidence of complaint had the defendant been charged with digital vaginal penetration while in the motor vehicle parked in the street.
The Judge considered, as is evident from the above extracts, that section 34M had been enlivened and gave directions from which the members of the jury could infer this was relevant material. The only legitimate use in the trial of the evidence was to demonstrate a marked inconsistency in accounts given by the complainant and, in that way, to support the defence case that she was an unreliable witness. This was not the tenor of the Judge’s summing up at all.
Undue Pressure on the Jury
The trial came at the end of the month for which the jury had been empanelled. The trial itself was relatively short; it commenced on Wednesday 23 November 2011. The Judge summed up on Friday 25 November 2011. This was the final day of the jury’s empanelment for the month. At 11.17 am on 25 November 2011 the members of the jury retired to consider their verdict. The members of the jury returned at 2.55 pm to ask the Judge a question. They resumed their considerations at 3.14 pm. At about 4.30 pm, a note was received by the Judge from the jury advising, “[w]e are currently locked and unable to reach a majority verdict. Kind regards, foreperson.”
Following receipt of this question, the Judge raised with counsel the approach that he should take. The following interchange occurred:
HIS HONOUR: Gentlemen, another question: ‘We are currently locked and unable to reach a majority verdict. Kind regards, foreperson.’ What do counsel suggest? I could discharge the jury, or we could give a Black direction and tell them to keep going until 5 o’clock and then we invite them to come back on Monday.
[Prosecution counsel]: There is still some time - I’m mindful that the jury have been out for some time.
HIS HONOUR: Over five hours.
[Prosecution counsel]: Yes.
[Defence counsel]: Before stating a position, could I have a few moments to confer with Mr El Rifai? He probably doesn’t comprehend at the same level as you and I.
HIS HONOUR: Yes, would you like me to leave the bench?
[Defence counsel]: If your Honour would.
HIS HONOUR: I just make the observation that it is a rather insightful note in some respects and they have impressed me as an intelligent jury. Counsel may have formed other views. Sometimes you can see with a jury that if you give them more time there is hope of a verdict, but I’m not sure what the position is here.
HIS HONOUR LEAVES BENCH 4.34 P.M.
HIS HONOUR RETURNS TO BENCH 4.40 P.M.
[Defence counsel]: Thank you for that opportunity. On the basis of the instructions I have, I would ask that the jury be given the remainder of today to attempt and if they are unable to come to a verdict today, that the jury be discharged at 5 o’clock.
HIS HONOUR: Mr Allen?
[Prosecution counsel]: I think Mr Richter meant another 20 minutes by that. The jury has been out for quite a long time. The brevity of the note suggests to me that the jury don’t think there is any realistic prospect of any verdict. I might be wrong about that. I am not asking your Honour to discharge -
HIS HONOUR: You never know.
[Prosecution counsel]: No, that’s the thing. They have asked a question.
HIS HONOUR: There might be 12 different views in there.
[Prosecution counsel]: That’s exactly right. I don’t have an application to make. I don’t oppose what my friend has said. I don’t ask your Honour to discharge them now, but I stay neutral as to the director’s position.
HIS HONOUR: I suppose if necessary we could go beyond 5 to half past.
[Defence counsel]: We could.
HIS HONOUR: Should I give them a Black direction?
[Prosecution counsel]: I don’t see any reason why not.
HIS HONOUR: Mr Richter, do you have any view on that?
[Defence counsel]: Not a formal view. I don’t see why not.
HIS HONOUR: I will give them a Black direction and send them out again.
The jury returned at 4.45 pm, at which time the Judge proceeded to give a Black direction. The Judge gave a direction in terms that accorded with the recommendations of the High Court in Black.[21] In particular, the Judge observed:
[21] Black v The Queen (1993) 179 CLR 44.
Ladies and gentlemen, I have your note, thank you. You are currently locked and unable to reach a majority verdict. That is not an unusual situation. What I propose to do is to give you a direction and send you out for a short time this afternoon and then if necessary we might resume on Monday.
The words that comprise this direction are not my words. They are words that were formulated by much wiser judges than myself. They are a standard form of words which are used when the jury is locked.
Members of the jury, I have been told that you have not been able to reach a verdict so far. I have the power to discharge you from giving a verdict but I should only do so if I am satisfied that there is no likelihood of genuine agreement being reached after further deliberation.
Judges are usually reluctant to discharge a jury because experience has shown that juries can often agree if given more time to consider and discuss the issues. But if after calmly considering the evidence and listening to the opinions of other jurors, you cannot honestly agree with the conclusions of other jurors, you must give effect to your own view of the evidence. Each of you has sworn or affirmed that you will give a true verdict according to the evidence.
That is an important responsibility. You must fulfil it to the best of your ability. Each of you takes into the jury room your individual experience and wisdom and you are expected to judge the evidence fairly and impartially in that light.
You also have a duty to listen carefully and objectively to the views of every one of your fellow jurors. You should calmly weigh up one another’s opinions about the evidence and test them by discussion. Calm and objective discussion of the evidence often leads to a better understanding of the differences of opinion which you may have and may convince you that your original opinion was wrong.
That is not, of course, to suggest that you can, consistently with your oath or affirmation as a juror, join in a verdict if you do not honestly and genuinely think that it is the correct one.
Experience has shown that often juries are able to agree in the end if they are given more time to consider and discuss the evidence. For that reason, judges usually request juries to re-examine the matters on which they are in disagreement and to make a further attempt to reach a verdict before they may be discharged.
So in the light of what I have already said, I ask you to retire again and see whether you can reach a verdict.
The Judge then addressed the jury in the following terms:
I am conscious of the time. I think what I might do is bring you back at quarter past 5 and if no progress has been made by then, we will adjourn until Monday. I ask you to retire again please.
It is to be observed that the course followed by the Judge was in accordance with the submission of counsel for the defendant.
In submissions on the appeal, counsel for the defendant, who was not counsel at trial, argued that informing the members of the jury that they would be brought back on the following Monday if they were unable to reach a verdict in the next 25 minutes completely undermined the Black direction that had been given. Counsel contended that the members of the jury should have been free to consider their verdict without having temporal pressure placed on them, especially in the context of this particular day being the final rostered day of their jury service. It was submitted that the “flavour” or the effect of this particular direction on the members of the jury was that it “hustled” them into a verdict. It was further argued that it was no coincidence that the jury, which had previously been “locked and unable to reach a majority verdict”, after hearing these words at ten minutes to 5.00 pm on a Friday afternoon – the final rostered day of their empanelment – would return some 25 minutes later and deliver a majority verdict.
The issue of a Judge hustling a jury arose in Harrison,[22] where the jury returned a majority verdict of guilty to a charge of causing death by dangerous driving. In Harrison, Cox J observed:[23]
What was particularly unfortunate, and provides the context in which the word “utmost” has to be judged here, was his reference to time. He said that he was going to give them another half an hour. He said it again immediately before they went out. Indeed, he had used and acted upon the same notion of a time limit when he sent them out at 3.30 pm. His Honour gave the jury no clear indication of what would happen if it failed to reach a verdict within half an hour. While it may be possible to give a direction on this subject using some such expression as “utmost”, or “do your best”, there cannot be any implication of an imperative in the language used. As I have already indicated, a judge, in these circumstances, takes the risk of throwing the direction out of balance if he embarks on the difficult task of giving a shorthand direction which is not in full compliance with the model laid down in Black.
Here, in my opinion, the general thrust of what his Honour said was tilted unmistakably towards the urgency of the matter. If that is not what was implied by his repeated reference to half-hour time limits, then it is difficult to see what function that temporal reference was meant to serve.
The jury must have thought that they had to do something within half an hour, and, coupled with the unelaborated use of the word “utmost”, then the exercise was thrown out of balance, in my view, and it was not sufficiently corrected by the observation that, if it should prove impossible for them to reach a verdict, so be it.
I think there was a very real danger then that the jury would have felt under considerable pressure to reach a verdict within the stipulated time, and that this could have distracted them from maintaining the position explained in Black. There was a risk that the minority members of the jury would simply have felt obliged to surrender in order for the jury to reach a verdict within half an hour.
[22] R v Harrison (1997) 68 SASR 304.
[23] R v Harrison (1997) 68 SASR 304, 308.
In the within proceeding, counsel for the Director of Public Prosecutions sought to distinguish the decision in Harrison from the present proceeding. On the prosecution’s case, it was the combination of the factors which led to the finding that the jury had been hustled in Harrison. The Director submitted that the within proceeding was a number of steps removed from Harrison.
Cox J reasoned in Harrison that the “the general tone and timing of the learned trial judge’s remarks in this case had the effect of hustling the jury in its deliberations”.[24] While the circumstances of the within proceeding differ to those of Harrison, the general tone and timing of the Judge’s remarks in the within proceeding did, to my mind, have the effect of hustling the members of the jury in their deliberations. In this appeal, the members of the jury were given from 11.17 am until 4.45 pm, with the exception of the question break at 2.55 pm, to consider their verdict. It was clear from the foreman’s note that at 4.30 pm the members of the jury were not in a position to provide a majority verdict. The trial Judge did not err in giving the Black direction until commenting that he was conscious of the time and would adjourn until Monday if no “progress” had been made by 5.15 pm.
[24] R v Harrison (1997) 68 SASR 304, 307.
In this case, the context in which the impugned remarks were made to the jury, namely on the jury’s final day of rostered empanelment on a Friday afternoon at 4.45 pm, meant that the Judge’s words would have had considerable impact on the jury’s decision-making process. The Judge’s use of the words “conscious of the time” was, to use the words of Cox J, “particularly unfortunate”[25] as, taken in combination with the jury’s circumstance, the timing of the remark and his Honour’s reference to adjourning to Monday, it implied a sense of urgency to the jury.
[25] R v Harrison (1997) 68 SASR 304, 308.
The Judge’s statement to the jury led to the real risk that the members of the jury who thought they would be free from jury duty the following Monday and had made other arrangements as to their commitments at that time were “hustled” into reaching a speedy verdict to avoid coming back on the Monday. It is difficult to avoid the conclusion that the calm consideration of the evidence, the listening to the opinions of the other jurors, the calmly weighing up of others’ opinions about the evidence and the testing of those opinions by discussion could be addressed in less than half an hour. There is a real risk that the clear terms of the Black direction were not addressed. This Court was informed that the practice of the District Court is to allow members of the jury considering their verdict to separate overnight and over the weekend. There was no reason why the members of the jury could not have been informed that they could have continued their deliberations on the Friday evening. Had such a course been followed, the members of the jury could have fully considered the matters raised in the Black direction and concluded their deliberations without undue pressure.
The difficulty that arises is that the course followed by the Judge was agreed to by counsel for the defendant. Further, the transcript reveals that defence counsel had the opportunity of taking instructions before indicating his client’s agreement to the course proposed. However, notwithstanding this agreement, I consider that the members of the jury were placed under inappropriate pressure. It would appear that inadequate time was allowed for the members of the jury to consider and properly weigh the important matters the subject of the Black direction before the Court adjourned on the Friday. The possibility of continuing deliberations on the Friday evening was not canvassed. The issue of the separation of the jury was not addressed. The members of the jury were faced with the prospect of returning to Court on the Monday, being a day after the completion of their rostered duty.
Conclusion
In my view, the directions given in regard to the so-called initial complaint were, in the circumstances, errors of law and a retrial should be ordered. To my mind, the circumstances of the case do not permit the application of the proviso.[26] There was no independent evidence to support the complainant’s evidence and in these circumstances, the impugned directions had given rise to a risk of a miscarriage of justice. The inappropriate pressure placed on the jury also gave rise to a risk of a miscarriage of justice. The appeal should be allowed and a retrial ordered.
[26] Criminal Law Consolidation Act 1935 (SA) section 353(1).
DAVID J: The appellant was convicted by a jury of one count of rape. He now appeals against that conviction.
There were a number of issues argued in support of the appeal. First, the admissibility of evidence of complaint. Second, whether the Judge erred in not directing the jury of the evidence of distress of the victim at the time of making the complaint. Third, that the prosecutor breached s 18(1)(b) of the Evidence Act 1929 (SA) (“the Act”) by commenting on the appellant’s failure to give evidence. Fourth, the verdict was unreasonable and against the weight of the evidence. Finally, the appellant argues that the trial Judge erred by placing undue pressure on the jury to reach a verdict.
Trial
The appellant was charged on Information as follows:
Statement of Offence
Rape. (Section 48 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Ammar Abdul Aziz Elrifai on the 11th day of September 2010, at Glenelg, had sexual intercourse with [V], without her consent, by performing an act of cunnilingus upon her.
Three witnesses were called by the prosecution, namely the victim (“V”), a person to whom she complained (Mr Totzenberger), and a police officer who gave evidence of a record of interview with the appellant.
The appellant elected not to give or call evidence.
V was an 18 year old woman who worked with the appellant on a construction site in Angas Street, Adelaide at the time of the alleged offending. On Saturday 11 September 2010, they were both working at the site in the morning and finished work at about 2.00pm. V went with the appellant and another person to a takeaway fish and chip shop nearby and they were at lunch for about half an hour. During lunch another couple of co-workers joined them and they asked V to drive the appellant to his home in Glenelg. V said she was happy to do that and left the lunch with the appellant in her car. At that time she had been working with the appellant for about two months.
On the journey to the appellant’s residence at Glenelg, he mentioned to her about going to a coffee shop and also to a hotel. V gave evidence that she did not want to go to a hotel because she felt that implied that he wanted to have sex with her. Instead they agreed to go to a coffee shop. The appellant suggested a shop that was near his house but they were unable to get a car park. They then went to his home. V had not been to that house before. When they arrived there was no‑one else there, nor did she expect there to be anyone there.
V gave evidence that, when they first arrived at the house, she generally looked through it. The appellant then sat on a lounge and V sat next to him. She gave evidence that he tried to kiss her, but she rejected his advances. He reacted by saying words to the effect that he accepted her rejection.
If the practice referred to by counsel during the hearing of this appeal is in fact prevalent it does not appear to be sanctioned by s 55 of the Juries Act 1927 (SA).
I agree that this appeal should be dismissed.
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