R v Fennell No. Sccrm-99-20 Judgment No. S179 - [1999] SASC 179

R v FENNELL
[1999] SASC 179

Court of Criminal Appeal: Doyle CJ, Prior and Mullighan JJ

DOYLE CJ. In my opinion the appeal should be dismissed. I agree with the reasons given by Mullighan J for so concluding.
PRIOR J I agree with the reasons given by Mullighan J. The appeal should be dismissed.
MULLIGHAN J: The appellant was found guilty by verdicts of a jury of three counts of rape and appeals against the convictions of those charges.
The charges arose out of an incident at the home of the appellant at Mount Gambier when he had anal sexual intercourse on two occasions with a young man whom I shall refer to as “A” and performed an act of fellatio upon him on 4th May 1998. At that time A was aged 19 years and apparently he has an intellectual disability. It was alleged that on this day he was selling raffle tickets door to door in Mount Gambier for what may be described as a charity. He went to the home of the appellant. He was invited inside and the incidents of sexual intercourse occurred. A maintained at the trial that he did not consent and that he was raped. The appellant gave evidence on oath and admitted having sexual intercourse with A but asserted that, at all times, A was a consenting and willing participant.
On this issue of consent, the case against the appellant rested entirely upon the uncorroborated evidence of A, and there was no other evidence to support the case of the appellant. There was evidence from three independent witnesses that A was in a distressed condition shortly after leaving the house of the appellant but, essentially, it was a case of the word of A against the word of the appellant as the jury could have concluded that it was reasonably possible that the distressed condition was consistent with consensual sexual intercourse in the circumstances.
In view of the issue on this appeal, it is unnecessary to mention the evidence given by A or the appellant. The grounds of the appeal raise, in effect, one matter. It is contended that the learned Trial Judge misdirected the jury as to the burden of proof. At an early stage in the summing up, he said:
“Because it is your decision, and it is your responsibility to decide where the truth lies in this matter, bearing in mind the onus of proof as I will describe it to you. It is not my job, it is yours, therefore, as far as matters of fact are concerned, what you think is accurate or inaccurate evidence, who you think is telling the truth or is not telling the truth, are matters for you, and not for me. That is your function and not mine. ........In the course of your consideration of the evidence, you will have to assess the reliability and the credibility, that means the truthfulness, of the witnesses who have given evidence before you. That is…

Grounds of appeal

[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.

Continue reading R v Fennell No. Sccrm-99-20 Judgment No. S179

Details

AGLC: R v Fennell No. Sccrm-99-20 Judgment No. S179 [1999] SASC 179
Case: [1999] SASC 179
Decision Date: 13 May 1999

CaseChat Overview and Summary

The appellant was convicted of three counts of rape and appeals against those convictions. The case was based on the uncorroborated evidence of the complainant, who alleged that he was raped by the appellant. The appellant asserted that the sexual acts were consensual. The Court of Criminal Appeal was required to decide whether the trial judge's directions to the jury regarding the burden of proof constituted a misdirection. The appellant argued that the trial judge's statement that it was the jury's responsibility to decide where the truth lay was misdirection, particularly as it did not explicitly mention the third possibility, that the jury may be unable to say where the truth lies. The Court considered the context in which the direction was given and concluded that the trial judge's summing up as a whole adequately explained the appropriate fact-finding process and the legal burden of proof. The directions about the burden and degree of proof were impeccable and the jury was clearly told that if they were in any doubt, the benefit of that doubt had to be given to the appellant. The Court held that there was no misdirection and dismissed the appeal.

The final orders of the Court were that the appeal be dismissed.

Orders