(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.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
R v El Rifai [2012] SASCFC 98
Case
[2012] SASCFC 98
Decision Date
CaseChat Overview and Summary
The appeal in *R v El Rifai* concerned a conviction for rape. The appellant, Ammar Abdul Aziz El Rifai, was convicted by a majority verdict of the jury and appealed against this conviction. The appeal raised several grounds, including the admissibility of complaint evidence, the trial judge's directions regarding the complainant's distress, a prosecutor's comment on the appellant's failure to give evidence, the reasonableness of the verdict, and allegations of undue pressure placed on the jury.
The central legal issues before the Full Court of the Supreme Court of South Australia were whether the trial judge had erred in admitting the evidence of the complainant's complaint, whether specific directions regarding the complainant's distress were required, whether the prosecutor's comment on the appellant's silence constituted a breach of section 18(1)(b) of the *Evidence Act 1929* (SA), and whether the jury had been subjected to undue pressure to reach a verdict. The court also considered whether the verdict was unreasonable or against the weight of the evidence.
By a majority decision, David and Kelly JJ dismissed the appeal. They found that the complaint evidence was admissible and that the trial judge's directions complied with section 34M of the *Evidence Act*. They also held that no specific direction regarding the complainant's distress was necessary. While acknowledging that the prosecutor's comment on the appellant's failure to give evidence was a breach of section 18(1)(b), they concluded that it was benign and did not occasion a miscarriage of justice. The majority also found the verdict to be reasonable and that the trial judge had not exerted undue pressure on the jury.
In dissent, Gray J would have allowed the appeal and ordered a retrial. His Honour found that the directions given regarding the initial complaint were errors of law, particularly in the absence of independent evidence supporting the complainant's account. Gray J also considered that the inappropriate pressure placed on the jury created a risk of a miscarriage of justice, leading him to conclude that the proviso to section 353(1) of the *Criminal Law Consolidation Act 1935* (SA) could not be applied.
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
GRAY J
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 OffenceRape. (Section 48 of the Criminal Law Consolidation Act, 1935).Particulars of OffenceAmmar 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.