R v Fuller

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v FULLER
[2015] SASCFC 71
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Sulan and The Honourable Justice Stanley)
8 May 2015
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - REVIEW OF EVIDENCE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Appeal against conviction and sentence. The appellant was convicted by a jury of two counts of rape. He was sentenced to six years and six months' imprisonment with a non-parole period of four years. The ground of appeal against conviction was that the trial Judge failed adequately to direct the jury about the reliability of the complainant's evidence, having regard to her state of intoxication. The directions were sufficient in the circumstances of the case.
The sentence imposed is severe but is not so severe as to be plainly unjust. Permission to appeal against sentence granted and appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 48, referred to.
Bedi v The Queen (1993) 61 SASR 269; R v Curtis (1991) 55 A Crim R 209; R v Daniel (2010) 207 A Crim R 449; R v Hitchins (1995) 184 LSJS 333, considered.

R v FULLER
[2015] SASCFC 71
Court of Criminal Appeal Kourakis CJ, Sulan and Stanley JJ

KOURAKIS CJ: For the reasons given by Sulan J, I would dismiss the appeal against conviction and would grant permission to appeal against sentence but then dismiss that appeal.
SULAN J: On 8 August 2014 the appellant, Wayne Fuller, was convicted by a jury of two counts of rape of JLB, contrary to s 48 of the Criminal Law Consolidation Act 1935 (SA). The maximum penalty for rape is life imprisonment. The offences were committed on 2 December 2011 at Royal Park. The appellant was sentenced to six years and six months’ imprisonment, with a non-parole period of four years’.
The appellant appeals both his conviction and sentence. As to the appeal against conviction, the sole ground of appeal is that the trial Judge did not adequately direct the jury on intoxication when assessing the credibility and reliability of JLB’s evidence. The appellant seeks permission to appeal against sentence on the ground that it is manifestly excessive.
Background
The appellant was in a de facto relationship with JLB’s foster sister, VR. In November 2011, JLB was living in Coober Pedy with her aunt and uncle. At the end of November 2011, she visited VR and the appellant, intending to stay for a few nights. JLB was aged 14 years at the time. She had first met the appellant in about 2007 when he commenced his relationship with VR.
On 2 December 2011, JLB and VR purchased alcohol which they took to VR’s home. That evening, the appellant, VR and JLB commenced drinking whiskey mixed with cola. JLB became extremely intoxicated to the point of vomiting. VR and the appellant were also intoxicated. They all consumed marijuana. In the early hours of the morning, JLB was helped into a dressing gown by VR and taken to bed. JLB was fully dressed underneath the dressing gown. She fell asleep almost immediately.
JLB awoke just before 4.00 am to find the appellant’s face between her legs, with his fingers inside her vagina. He performed cunnilingus on her before she kicked him. He ran out of the room. The incident lasted about five minutes. JLB did not consent to this conduct. JLB’s track pants, jumper and bra had been removed and her underpants were around her ankles. Her feet were touching the floor. She was lying on the bed at an angle when she was awakened.
JLB telephoned a friend, alleging that she had been sexually assaulted. She also sent a text message to another friend recounting the incident. She falsely alleged that she had tried to kill herself by consuming valium. She said that she made that allegation out of a desire to draw attention to herself. She went back to sleep.
Later in the morning, JLB was awakened by VR. At that time, she did not make a complaint to VR. She was eventually picked up by the friend to whom she had sent a text message. Later in the day, VR picked her up from the railway station and drove her to her aunt’s place. JLB placed the clothes she had been wearing the previous night in a washing basket. Later that evening, JLB reported the incident to the police.
JLB was submitted to a forensic procedure at 10.00 am on the following day. Her underpants were seized. There was evidence that DNA matching the appellant as found on JLB’s underpants and on swabs taken from her vagina.
The appellant gave evidence denying the sexual contact. He claimed that his partner’s son, A, who was eight years old at the time, entered the room and may have committed the acts. The appellant gave evidence that he continued drinking with his partner after JLB went to bed. He stated that he saw A enter the room and followed him in to make him leave. He said that, upon entering the room, he saw A next to the bed in the position of a person committing the kind of sexual acts alleged by JLB. He said he witnessed JLB kick A away from her. He took A by the ear and left the room with him.
Appeal against conviction
The appellant contends that the trial Judge’s directions to the jury on intoxication did not adequately address the credibility and reliability of JLB. The issue at trial was whether the alleged sexual conduct occurred and, if it did, the identity of the person who had sexually assaulted JLB.
The prosecution case primarily relied on the evidence of JLB, supported by the DNA evidence which matched the DNA found on JLB’s clothing and taken from her vagina with that of the appellant.
Counsel for the appellant submits that the summing up was inadequate, and the Judge was in error in failing to give separate and specific directions to the jury on the issue of the intoxication of JLB. In summing up, the Judge gave the following directions:
Assessing witnesses is really nothing more than a matter of common sense and in doing so, and without being exhaustive, matters you can legitimately take into account include your impressions of the witness while he or she was giving evidence. Did the witness strike you as being truthful and reliable? Did the account of the witness seem plausible, thus having the ring of truth about it? How did the witness stand up to cross‑examination? When under cross-examination did the witness seem willing or unwilling to meet the point of the questions? How did the witness’s evidence fit in with the other evidence in the case? How long has it been since the events in question? How old was the witness at the relevant time? Was the witness affected by alcohol or anything else at the relevant time? Was there anything which might have affected the witness’s perceptions at any relevant time? Was there anything which might have affected his or her recollection of events since then? And where do the witness’s allegiances ultimately lie?
[Highlighting is mine.]
The Judge referred to counsels’ addresses and to their submissions, in particular the criticism on the one hand by the defence of JLB’s evidence and inconsistencies that were identified in it and, on the other, the prosecutor’s criticisms of the appellant and inconsistencies in his evidence. The Judge directed the jury that they should consider those submissions and consider any inconsistencies that they might have observed and ask themselves whether those inconsistencies are so dramatic as to destroy a witness’s credibility and reliability.
Later in his summing up, the Judge directed the jury as follows:
It would be obvious to you, and indeed Ms Abbey has conceded as much, that the prosecution case turns on the evidence of Ms [B] and that you could not convict on either charge unless you were to be satisfied that she is both truthful and reliable in the essential aspects of her evidence. You will thus have to consider her evidence with care and subject it to close scrutiny.
The Judge recounted the relevant parts of JLB’s evidence.
When JLB spoke on the phone after the incident, she appeared to be very distressed. The Judge dealt with that part of the case as follows:
It is for you to determine whether Ms [B] was crying because she was genuinely distressed when she was speaking to Ms [H] and, if so, what was the nature and extent of her then distress and what might have caused it. Signs of distress can have a number of potential causes. Distress may be caused by a recollection of events which have in fact occurred, or it may be caused by remorse associated with the telling of a false story or it may be caused by any one of a number of other causes, including the outpouring of emotions for a variety of reasons arising out of the individual’s personal temperament or, for that matter, state of intoxication.
The Judge reminded the jury of the appellant’s evidence. The appellant gave evidence that JLB was extremely drunk and that she was taken to bed by his de facto, VR. He gave evidence that he then stayed up with VR, who eventually went to bed. He said he saw A go into the room where JLB was asleep. He went into the room and led A out. He gave evidence that he did not engage in any sexual impropriety of any kind with JLB.
The Judge then gave directions about the DNA evidence. He concluded his directions by indicating to the jury that both sides agree that the DNA, which could be the accused’s and which was found on the swab from the vagina and on the knickers, could have been deposited by secondary transfer. No complaint is made about the Judge’s directions in respect of the DNA evidence.
In considering the complaint of the appellant, I have dealt with issues on the basis that the DNA evidence does not establish that the appellant sexually assaulted JLB, and that any positive swabs taken from the vagina and the knickers matching the appellant’s DNA could have been deposited as a result of secondary transfer from some other object in the house, such as a towel. It follows, therefore, that in determining the issues in this appeal, I have disregarded the DNA evidence as evidence supporting the evidence of JLB. My reason for so doing is that the Judge directed the jury that the DNA could have been deposited by secondary transfer. In my view, that direction, and counsel’s concession, was extremely favourable to the appellant.
Counsel submits that the Judge failed to give a sufficient direction to the jury about the intoxication of JLB, and how they should deal with that issue when considering the reliability and credibility of JLB’s evidence. JLB gave the following evidence in examination-in-chief:
QBetween the time you started drinking and when you got to bed how many cans of alcohol did you drink.
AProbably around seven or eight.
QDid you feel affected by alcohol that night.
AYeah, I felt heaps intoxicated and I was throwing up.
QWhere were you throwing up.
AIn the back garden.
QWas anyone else with you when you were doing that.
AYeah. [VR] was holding my hair.
QWas Wayne around when you were doing that.
AI think he was just standing back making sure I was all right. I don’t know – or still at the table. I’m not too sure. He was still out the backyard though.
QAt what point in the night is it that you were throwing up.
ATowards the end of the night, yeah.
QWhen you say ‘the end of the night’, do you mean the end of your night before you went to bed.
AYep.
QBy the time you went to bed, if nought is not intoxicated at all and 10 is very intoxicated, on that scale of nought to 10 how affected by alcohol did you feel.
AI’d say, yeah, nine, eight or nine.
QHow did you get to your bed.
A[VR] helped me. She put her dressing-gown on me and put me to bed. It was in [A’s] bedroom.
JLB gave evidence that she went to sleep and, at some point, she was awakened. She was asked:
QHow long before you fell asleep when you got into bed.
APretty quickly, I was intoxicated so I crashed out fast.
QAt some point did you wake.
AYes, I did.
QWhat did you see when you woke up.
AI saw Wayne’s face in between my legs.
QDid you feel anything.
AYes.
QWhat did you feel.
AI felt his fingers inside of me.
QWhere were your feet when you woke up.
AOn the floor.
QWhere was your back when you woke up.
ALike, across the middle of the bed, across the edge of the bed.
QWere you lying parallel in the bed that you would normally –
AOn an angle, my feet were plastered on the ground, my back was still on the bed.
QWere you wearing anything.
AMy track pants were off, my underwear were at my ankles and my bra and my jumper were pulled off up to here (INDICATES).
QYou are indicating around just below the start of your neck.
HIS HONOUR
QCould you give an audible answer please.
AWhat was that sorry?
QYou nodded in response to Ms Abbey’s question, could you give a verbal answer please.
ASorry, yes.
XN
QYou said that you saw Wayne, what did you see of Wayne.
AI seen his T-shirt, shadow of his fact I guess.
QDescribe his T-shirt.
AIt was white with some writing, not sure what.
QDid you see whether he had any other clothing on.
ANo.
QAfter you had woke and seen that, what happened next.
AI felt paralysed.
HIS HONOUR
QWhat part of you were his fingers inside.
AWhat was that sorry?
QWhat part of you were his fingers inside.
AInside of my vagina.
QHow many fingers.
AI think about four.
QHow far inside your vagina.
AFar enough that it hurt heaps.
QWere there any lights on in the room.
ANo, the hallway light was on.
QIn what position was the door.
AIt was open slightly.
XN
QHow do you know that the hallway light was on.
ABecause the light was coming into the bedroom from outside.
QHow long did Wayne have his fingers inside of your vagina for.
AA few minutes until I could, I guess, gain enough consciousness to kick.
QYou said that his face was down around your vagina.
AYes.
QApart from placing his fingers in your vagina, did he do anything else.
AYea, he was orally licking my vagina.
QWhich part of your vagina was he licking.
AInside of it, the clitoris.
QWas there anything said by you while this was going on.
AI tried to talk but – I tried to scream, I felt paralysed, I couldn’t say anything.
QWas anything said by Wayne while this was happening.
AHe said one thing, he said ‘Kitty wants you bad’.
QDid you respond to that at all.
ANo.
QYou said that you kicked. At what point did you kick.
AI think maybe five minutes after I had woken, I started kicking when I could; I felt paralysed, I was trying to talk, trying to scream and I couldn’t, and I was just trying to move and I felt paralysed. I started kicking and he ran out.
QWhat did you kick.
AHis legs, his stomach, I was kicking him about twice and he ran out.
QWhen he ran out what did you do.
APulled my underwear up, got my track pants off the ground and put them on and hopped back in bed and tried calling everyone. The only person that answered was [K].
In addressing the jury, counsel for the appellant submitted that JLB was plainly drunk and emotional, which may have led to the allegation. He pointed to inconsistencies in JLB’s evidence, and that her evidence cannot be relied upon.
Consideration
In Bedi v The Queen,[1] the accused was convicted by a jury of two counts of endangering life and two counts of threatening another person with a firearm. The evidence established that both the accused and the victim in that case were affected by alcohol. On appeal, the principal complaint raised by the accused’s counsel was that the trial Judge failed to direct the jury on the relevance of the effects of intoxication to various issues which had to be considered, including the intention of the accused and the reliability of the victim’s account of the relevant facts. Neither the victim nor the accused had agreed that they were so affected by alcohol that they could not recall the events of that evening. The trial Judge directed the jury that both the accused and the victim had been drinking and that the jury may not find it difficult to attribute any irrational behaviour on the part of one or other of them to the effect of alcohol. The trial Judge gave no directions to the jury about the effects of alcohol upon the issue of intention of the accused, or upon the issue of reliability of the evidence.
[1] (1993) 61 SASR 269.
On appeal, Duggan J, with whom Bollen and Mullighan JJ agreed, observed:[2]
It is clear that the intoxication of an accused person, whether induced by alcohol, drugs, or a combination of both, may be of relevance to a variety of issues in a criminal trial, including the existence of a particular state of mind or the appreciation of facts relevant to some element of an offence or to a defence to the charge. Intoxication may also be of relevance in the assessment of the reliability of the witnesses. If there is evidence of intoxication capable of having some bearing on these issues it is the duty of the trial judge to identify that evidence for the jury and relate it to those issues with appropriate directions on the law. ...
...
In my view the evidence as to the intoxication of the appellant and McIntyre was relevant to a number of issues which the jury was required to consider. In order to convict the accused on the counts of endangering life the jury would have to be satisfied beyond reasonable doubt that the appellant knew the discharging of the firearm was likely to endanger McIntyre’s life and that he either intended such a consequence or was recklessly indifferent to its occurrence. In determining these aspects of the appellant’s state of mind it was essential for the jury to consider the bearing which the effects of alcohol and drugs may have had on the appellant’s appreciation of relevant facts and whether or not he formed the necessary intent inherent in the charge: R v O’Connor (1980) 146 CLR 64 at 82; R v Tucker (1984) 36 CLR 135 at 139.
The appellant’s intoxication was also relevant to the defences of self-defence and defence of property which he raised. In deciding whether the prosecution had negatived a genuine belief that the actions taken by the appellant were necessary and reasonable in defence of himself or his property it was necessary for the jury to consider the effect of the consumption of alcohol and marijuana on his perception of events.
[2] (1993) 61 SASR 269 at 273-274.
In Bedi, the failure of the trial Judge to direct the jury about the effect of intoxication upon an accused’s state of mind, when that was an issue to be determined by them in the case, was sufficient for the conviction to be set aside. Although Duggan J referred to the relevance of intoxication to the reliability of a witness’s account, that reference was in the context of the central issue in the case, being the intoxication of the accused and how it might have affected the accused’s ability to form the requisite intent to commit the offence.

In R v Curtis,[3] the accused was convicted of rape. He and the victim had been drinking alcohol and smoking marijuana. The issue in the trial was whether the victim had consented or, if she had not, whether the accused believed that she had consented. The trial Judge directed the jury that alcohol or marijuana, or both, may colour a person’s perception of what he or she is doing, or what is going on around him or her. He continued that it may be that an accused’s sensors were dulled by alcohol and marijuana to the extent that he did not have the sufficient realisation about the victim’s responses on the issue of consent.
[3] (1991) 55 A Crim R 209.
On the appeal, it was contended that the trial Judge did not make it clear to the jury that the onus of proof was on the prosecution beyond reasonable doubt to establish that, first, the victim was not consenting and, second, despite the state of intoxication of both the victim and the accused, the Crown must negative beyond reasonable doubt the possibility that the accused believed that the victim was consenting. Further, it was contended that the trial Judge did not refer the general directions on intoxication to the evidence in the case.
Olsson J concluded that there was a failure by the trial Judge to relate the issue of intoxication to the evidence in the case. He said that there was an inadequate direction and the jury was left to its own devices to apply the legal concept to the detailed evidence. He said:[4]
... At the very least, there was a need, in reasonable degree, to identify the quite positive and important evidence bearing on the signals which may have been seen by the appellant to emanate from the conduct of Miss McKenzie and the importance of considering whether the Crown had negatived the reasonable possibility of misinterpretation by the appellant of those signals due to his state of intoxication. It was not enough simply to state the legal concepts and then to read some segments of transcript without satisfactorily linking the evidence relied upon by the defence – particularly, but not limited to, that bearing on reckless indifference.
[4] (1991) 55 A Crim R 209 at 219.
Duggan J was of the view that the trial Judge gave adequate directions in respect of the onus of proof. However, he considered that the other criticisms of the direction on intoxication were well founded. He said that the circumstances of the case required the jurors to focus their attention on the appellant’s state of mind. The appellant’s interpretation of the complainant’s attitude from her actions was crucial to this assessment. He added that the issue of the complainant’s intoxication was also of relevance. He observed that it was important for the jury to consider whether the intoxication of the complainant may have accounted for or contributed to conduct from which the appellant inferred consent. He said:[5]
... It was also relevant in assessing her general reliability as a witness, particularly in the light of her vagueness as to certain important events.
Duggan J considered that the trial Judge had not discussed the relevance of the respective degrees of intoxication of both the accused and the complainant to the issues in the case.
[5] (1991) 55 A Crim R 209 at 223.
In R v Daniel,[6] the accused was convicted of rape. The majority, Sulan and David JJ, concluded that the Judge had failed to adequately direct the jury sufficiently on the onus of proof. The complainant was severely intoxicated. The issue was whether she had consented to the act. A further ground of complaint was that the Judge failed to direct the jury that the complainant’s intoxication was a relevant factor in considering reliability of her evidence. Sulan J observed:[7]
In my view, the direction failed to adequately instruct the jury that, in considering the reliability of the complainant’s evidence, and whether they could be satisfied beyond reasonable doubt of the appellant’s guilt upon her evidence, her state of intoxication was relevant. It was relevant to her perception, and to her recall of the events. It was also relevant, when considering her credibility.
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.
[6] (2010) 207 A Crim R 449.
[7] (2010) 207 A Crim R 449 at [50]-[51].
Again, that was a case in which intoxication was relevant to the issue of consent. It was the combination of the failure to adequately direct on the onus of proof and on intoxication, which resulted in a miscarriage of justice.
This case can be distinguished, as this was not a case in which JLB’s or the appellant’s states of mind were in issue. Nor was it a case where there was an issue about whether JLB had consented. The only issue in the case was whether JLB had given reliable evidence in her identification of the appellant as the person who had sexually assaulted her.
In the present case, the Judge could have given a further direction in respect of intoxication and how it may be relevant to the reliability of JLB’s evidence. However, the Judge instructed the jury that intoxication is relevant when considering the reliability of JLB’s evidence. The jury was directed that they had to be satisfied beyond reasonable doubt of the accuracy of JLB’s evidence. It was not in issue that she had been sexually assaulted. The only other person who might have been involved, having regard to the appellant’s evidence, was A, the eight-year-old son of his stepsister. There was no other male person in the house. The question of whether it was reasonably possible for JLB to have been mistaken as to whether it was the appellant or the eight-year-old child who committed these acts was a matter that the jury must have considered. The jury must have rejected beyond reasonable doubt that circumstance. In my view, the failure of the Judge to give a more complete direction on the issue of the intoxication of JLB and how it impacts upon the reliability of JLB’s evidence is not a sufficient basis to overturn the conviction. There has been no miscarriage of justice.
I would dismiss the appeal against conviction.
Appeal against sentence
Permission to appeal against sentence was referred to the Full Court. The Judge imposed one sentence of six years and six months’ imprisonment. The Judge fixed a non‑parole period of four years. The appellant contends that this sentence is manifestly excessive.
At the time of the offence, the appellant was 42 years of age. He had a number of minor previous convictions, none involving sexual offences. At the time of the offence, JLB was two days short of her 15^th birthday.
The Judge accepted that JLB was grossly intoxicated at the time of the offence and that the appellant was mildly intoxicated. The Judge observed that the appellant had plainly taken advantage of JLB’s intoxication and that he must have known that she had not consented to what he was doing. She was a young girl. He was a mature man.
Until being charged with the offences, the appellant had led a productive and hard-working life. He is the father of a number of children. His family is reliant upon him. One of the children, which is subject to his care, is legally blind and suffers from attention deficit disorder. The appellant’s absence from the home has had, and will continue to have, significant emotional and financial consequences upon his fiancé and their children.
The Judge described the crimes as predatory, opportunistic and committed in a gross breach of trust against an adolescent girl. The Judge referred to the need to have regard to general deterrence when imposing the sentence.
It is clear that the appellant has strong family support and support from others. There is little doubt that he has good prospects of rehabilitation and a low risk of re-offending. It is contended on his behalf that the Judge gave inadequate weight to those factors.
Counsel for the Director submits that there is no sentencing standard for the offence of rape. He referred to the decision of Mullighan J in R v Hitchins, in which His Honour observed:[8]
The Court has never established a tariff for rape and, in particular, for the worst type of rape. The circumstances of that crime and the offender can vary enormously and it is inappropriate to try and establish a range of sentence by fixing a minimum or maximum sentence.
[8] (1995) 184 LSJS 333 at 336.
That observation must be accepted. As courts have observed, there are cases of rape where two individuals have met and engaged in some sexual foreplay and the defendant has then refused to desist when the complainant withdraws her consent. There are other cases in which there is extreme violence and the conduct is prolonged and vicious. There are many variations in between. It follows that it is not possible to determine a range of penalties for the offence. However, it is a very rare case in which a person convicted of rape would not receive an immediate custodial sentence.
In this case, the appellant, who is a much older man, raped JLB who was a child. I accept that JLB was severely intoxicated. The appellant was also intoxicated. That may explain how the situation occurred. The offence was not premeditated. It was opportunistic. The appellant desisted when JLB awoke and kicked out at him. The Judge took those matters into account.
Counsel for the appellant has not pointed to any specific error, but argues that the Judge gave insufficient weight to factors relevant to the appellant, resulting in a sentence which was unreasonable and plainly unjust.
In my view, the sentence in this case cannot be said to be so unreasonable that the Court could conclude that it is plainly unjust. The offending was serious offending involving a child.
In my view, although the sentence is severe, I am not persuaded that this Court should interfere. I consider that, although the grounds of appeal were arguable, the appeal against sentence should be dismissed.
I would, therefore, grant permission to appeal against sentence and dismiss the appeal.
STANLEY J: I agree with Sulan J.

[2015] SASCFC 71

8 May 2015

Key Legal Topics

Areas of Law

Criminal Law

Evidence

Legal Concepts

Appeal

Charge

Intention

Sentencing

Expert Evidence