R v Guiseppe Belperio Nos. SCCRM 96/340, SCCRM 96/343 Judgment No. 5970 Number of Pages 16 Criminal Law Evidence

[1996] SASC 5970

COURT IN THE COURT OF CRIMINAL APPEAL OF SOUTH AUSTRALIA
DOYLE CJ, BOLLEN AND LANDER JJ

CWDS
Criminal law - evidence - rape - adequacy of Crown evidence - "no supporting evidence" to support the evidence of the complainant - witness named in alibi notice not called - adequacy of direction on these issues and generally - directions all adequate and free from any fault - appeal against conviction and sentence rejected. R v Power and Power (Judgment No. 5653, nreported CCA 29th May 1996, available in SCALEplus), applied.

HRNG ADELAIDE, 11 December 1996 (hearing), 24 December 1996 (decision) #DATE 24:12:1996 #ADD 28:1:1997

Counsel for appellant:        Mr M L Abbott QC with Mr Agresta

Solicitors for appellant:     Alessandrini &; Co

Counsel for respondent:     Mr S Mcewen

Solicitors for respondent:    DPP (SA)

ORDER
Appeal dismissed.

JUDGE1 BOLLEN J

1. This is an appeal against a conviction for rape and against the length of sentence imposed in the District Court by Judge Anderson. A jury had returned a verdict of guilty by a majority. On 13th August 1996 Judge Anderson imposed a sentence of four and a half years imprisonment with a non-parole period of two years to be reckoned from the 30th July 1996.

2. The charge was that at Marden on 10th August 1994 the appellant raped a woman named Anne-Marie Howe "by inserting his fingers into her vagina". It was said to have happened at her flat.

3. The defence was an alibi. The appellant said, and says, that he was not even at the flat at the suggested time, that is to say, at the time of the alleged rape. He said, and says, that the incident deposed to by Ms Howe never happened. He had earlier been at the flat. Ms Howe had said that he had come back and committed the crime. He denied that he had come back. He gave evidence. He called witnesses. He had given a timeous "alibi notice".

4. Properly understood it was, in effect, word against word. No evidence in support of the evidence of Ms Howe was called. None could have been.

5. Ms Howe was 22 years of age at the time. She lived alone in a flat which was one of about 30 in the block. It was at Broad Street, Marden. She worked as a cashier at a supermarket which was about five minutes walk from her flat. She worked 24 hours in the week. She worked varying hours. She had a close friend at work. That was Adele Leckie. They saw each other at work frequently.

6. Ms Howe said that on the 10th of August 1994 she worked from 10.00am until 3.00pm. After 3.00pm she got some groceries for her supervisor and then set off to walk home. She saw a brother of the accused. She had met him previously. That was Carlo Belperio. She described him as "just an acquaintance". She gave evidence of how and when she had met Carlo about three months earlier. She described her subsequent meetings with him. There was nothing significant about them until 9th August 1994, the day before the happening of the alleged offence. On that day Carlo called on her. He knocked on the door at about 6.00pm. Ms Howe asked him in. She gave him coffee. They talked. He left after about 15 or 20 minutes. They made no arrangement to meet again later.

7. On her walk home next day, 10th August 1994, Ms Howe spoke to Carlo in the street for a few minutes. She invited him to her flat for coffee. He accepted. They went into her flat at about 3.30pm. Nothing sinister or untoward happened. Carlo left after about an hour and a half. He said he would probably come back. Ms Howe said that she replied to that by saying "That will be all right".

8. He came and, according to Ms Howe, with a friend whom he introduced as "my mate Joe". They had each come openly to the door. Ms Howe let them in. She had not earlier seen Joe. They stayed for about half an hour. In fact "Joe" was the appellant.

9. According to Ms Howe, Joe came back knocking at her door at 10.15pm. They talked. Joe put on a "Bon Jovi" CD on the stereogram. After that Ms Howe said that the digital rape happened. She gave evidence which, if accepted beyond reasonable doubt, proved all the elements of rape. She gave very firm evidence of her lack of consent, of her voicing a lack of consent and of her fear of Joe. On her account Joe was obviously seeking to culminate his attack with forced penile intercourse. Ms Howe said that it ended thus:-
    "Q.. When you pushed him off, what position did he end up in.

A. He was standing up.

Q. Did he say anyting once he was standing up.

A. Yes, he did.

Q. What did he say.

A. He said, 'Aren't you going to give it to me?".

Q. What did you take that to mean.

A. I thought he meant my having sex with him.

Q. What did you say about that comment.

A. I said 'No, I'm not like that'.

Q. What did he do after you said no, you're not like that.

A. He said, 'Well, I'm going then'.

Q. After he said he was going, what happened.

A. He got up and - he was standing and he walked out into the lounge
    room.

Q. Did you follow him.

A. Yes, I did.

Q. Once he got into the lounge room, where did he go.

A. He grabbed his mobile phone off the table and went out the front
    door.

Q. He had a mobile phone, did he have it on just this visit or the
    one previously with Carlo.

A. He had it before with Carlo as well.

Q. Once he grabbed his mobile phone, did you follow him.

A. I made sure he went out the front door and then closed it.

Q. Did you say anything to him when he left or did he say anything
    to you.

A. No.

Q. Did you follow his progress once you closed the door.

A. No, just saw him heading off down the front of the units and that
    and then I just closed the door and locked it.

Q. Once you locked the door, what did you do.

A. I went into the bedroom and was looking out the window."

10. That which was said to amount to a complaint by Ms Howe happened next day.

11. Ms Howe deposed to looking out the window after Joe had left. She saw a car leaving. She noted its number. She later gave the number to the police. Her evidence about her complaint was:-
    "Q. Once you saw that car go toward Payneham Road, what did you do.

A. I went back into the kitchen and grabbed the knife out of the
    cupboard, and went and sat back in the lounge.

Q. Why did you grab the knife.

A. Because I was scared in case he would come back.

Q. What condition were you in, once he left.

A. I was upset, shaking and crying, really scared.

Q. How long did you sit down in the lounge with your knife.

A. About two hours.

Q. During the time did you contact anyone by phone or -

A. No, I didn't.

Q. Why was that.

A. I was too scared and I just didn't want to bother, or wake anyone
    up.

Q. After those couple of hours that you stayed up did you go to bed.

A. Yes, I did.

Q. Were you disturbed again that night.

A. No, I wasn't.

Q. What did you do with the knife when you went to bed.

A. I held it in my hand.

Q. Did you go to work the next day.

A. Yes, I did.

Q. What time did you go to work.

A. The same 10 to 3 shift.

Q. Did you have anything to do before you went to work.

A. Not that I can remember.

Q. When you got to work, what condition do you feel you were in.

A. I was just really quiet and withdrawn and that.

Q. Did you have a morning break at work.

A. Yes, I did.

Q. What time was the morning break usually.

A. Normally it's just whenever you really need it.

Q. What time did you take your morning break.

A. About an hour or so after I started.

Q. Where did you take it.

A. I went up into the lunchroom upstairs.

Q. Was anyone else in the lunchroom when you went up and took your
    morning break.

A. Yes, there was.

Q. Who was up there.

A. Adele.

Q. Had she been working with you that morning -

A. She was just about to start.

Q. Did you speak with Adele in the staff room or the lunchroom.

A. Yes, I did.

Q. What did you say to Adele.

A. I just told her a bit about what happened and how Carlo and that
    had come around and just gave her the gist about what happened.

Q. Did you go into any detail about what happened in your bedroom.

A. No, I didn't.

Q. What was your condition like during the time you were speaking to
    Adele.

A. I was crying and upset.

Q. How long did you speak with Adele for, can you say.

A. Only for a couple of minutes.

Q. Did anyone intervene or try and comfort you.

A. Adele tried to comfort me and that.

Q. Did you have a manager at that time.

A. Yes, I did.

Q. What was his name.

A. Peter Eden.

Q. Did you speak with him. Just say 'Yes' or 'No'.

A. Yes.

Q. How long was that, after you spoke to Adele.

A. About five, ten minutes.

Q. Please don't say what you said to Peter but what happened as a
    result of you speaking to Peter.

A. He took me over to the police station.

Q. Did you there speak with police officers.

A. Yes, I did."

12. So there it is. No complaint was made until the "morning break" next day. Ms Howe's flat was on the telephone. She was one of some thirty flats. A police station was about five minutes walk away. But it appears that Ms Howe did not have very many friends. It cannot be said that she was shown to be on close terms with any occupant of any other flat.

13. The evidence of the complaint to Ms Leckie was admitted both through the mouth of Ms Howe and that of Ms Leckie.

14. The only other witness for the Crown was a police officer. He spoke to the appellant. He asked the appellant "Are you Guiseppe Belperio?". He said, be it noted, that the person to whom he spoke said "Yes, I am Joe". The appellant immediately and consistently denied that he had been in the flat of Ms Howe at the relevant time. On hearing the allegation against him he said at once to the officer "Bullshit. Who is this person?". "Why is she saying this?".

15. Later, during the interview, the appellant said that he had been with Carlo to the flat of Ms Howe at about 9.15pm. He said that they left after about 10-15 minutes. He said:-
    "I just brought my brother Carlo to see this girl at this house and
    she invited us in, had a coffee. Carlo was the laughing stock of
    the night, so I said to Carlo, 'Let's go' and we ended up leaving
    and went home."

16. When it was put to him that he had gone back to the flat he said "No that's all news to me, going back".

17. As I have said Ms Howe had taken the number of the car which she saw leaving. The appellant agreed that he frequently used that car. It was the property of his father. Apart from the discussion about a proposed line-up the interview ended thus:-
    "I said 'Okay, and you have attended there, you have gone inside,
    had a coffee?'

He said 'Yeah.'

I said, 'Carlo's been a bit embarrassing?'

He said 'Yep.'

I said 'And so you have left. How long do you think you were there
    for?'.

He said '10, 15 minutes.'

I said 'No more?'

He said 'Oh, as long as it takes to drink a coffee I suppose.'

I said 'Right. At the conclusion of that where did you go?'

He said 'Straight home because I had to go to work at 5 o'clock in
    the morning.'

I said 'And you state that you did not reattend to that address by
    yourself after any time later on in the evening?'

He said 'That's right.'

I said 'And you have got no idea why this girl would make this
    allegation if it wasn't true?'

He said 'Not against me, no. Maybe she had something against Carlo,
    but I don't know why me. Maybe because I sort of gave her the
    opinion that I didn't like her, you know, wasn't my type of girl,
    so I said to Carlo 'Let's go. You know, don't waste your time'."

18. The appellant exercised his right not to join a line-up. The officer said:-
    "I said 'Okay. Well, I will warn you then that if you don't
    participate in a line-up parade, it then gives me the opportunity to
    do a photographic identification, do you understand that?'

He said, 'Yes, I understand that.'

I said 'So you are not prepared to go in an identification parade?'

He said 'You can do that photo.'

19. Ms Howe identified the appellant in court.

20. The appellant had given, as I have said, an alibi notice. It was:-
    "The Director of Public Prosecutions
    Natwest Centre
    7th Floor
    21. Pirie Street
    ADELAIDE SA 5000

Dear Sir,

GUISEPPE BELPERIO
    OFFENCE - 10/8/94 - RAPE
    ALIBI NOTICE

We note that our abovenamed client has been committed to appear
    before the District [Court] of South Australia for arraignment on
    the 6th of March 1995 on the above matter.

We hereby give advice that our client will call alibi evidence at
    his trial.

Our client will say that he was at his home at 38 Balmoral Road,
    Dernancourt during the period of time on the 10th of August 1994
    that the complainant says the offence occurred. Our client may call
    the following witnesses, to support his evidence in this regard:

Michael Belperio (Father)
    22. Balmoral Road
    DERNANCOURT

Emilia Belperio (Mother)
    23. Balmoral Road
    DERNANCOURT

Giovanna Belperio (Sister)
    24. Balmoral Road
    DERNANCOURT

Rocky Rinaldi
    C/- 38 Balmoral Road
    DERNANCOURT

Carlo Belperio
25. Balmoral Road
DERNANCOURT

Dianna Divazzi
    KLEMZIG
    (this witnesses(sic) full address will be provided once we have
    ascertained the same).

Should you require any further information or detail in relation to
    this matter, please let us know."

26. The accused gave evidence. He called five other witnesses. They were Emilia Belperio, Michael Belperio, Giovanna Belperio, Rocky Rinaldi and Charmaine Kubiak. Emilia Belperio is the mother of the appellant. Michael Belperio is his father. Giovanna Belperio is his sister. Rocky Rinaldi had a long-standing relationship with Giovanna Belperio. At the time of the trial they were living together in Melbourne. In 1994 he lived in the home of the parents of the appellant. Charmaine Kubiak has had a relationship with the appellant. They had talked about marrying.

27. Carlo Belperio and Dianne Divazzi did not give evidence.

28. The grounds of appeal in the Notice of Appeal (some of which were not as such argued) are:-
    1. The Learned Trial Judge erred in admitting the evidence of
    complaint made by the complainant (Pages 13,14 &; 15 of the Summing
    Up).
    (A) The complaint was not made at the first reasonable opportunity
    and is therefore inadmissible.

2. The Learned Trial Judge erred in directing the jury that they
    could draw inferences from the failure of the accused to call the
    witness Carlo (Pages 16,17 &; 18 of the Summing Up)
    (A) The failure to call the witness was not an unexplained failure
    and therefore the Learned Trial Judge ought not to have admitted the
    evidence and/or allowed any adverse inference to be drawn.

3. The Learned Trial Judge erred in the directions he gave to the
    jury in relation to the accused's departure for Italy (Pages 18 &; 19
    of the Summing Up).
    (A) The Learned Trial Judge himself found that the evidence on
    this topic was equivocal and therefore it was not established that
    there was no other explanation;
    (B) In such circumstances, the direction in this respect ought not
    to have been given.

4. The Learned Trial Judge erred in failing to give the jury a
    direction in law that it was not their duty to find the truth.
    (Page 20 of the Summing Up).

This is especially so when the trial amounts to 'oath against oath',
    such that credit becomes the ultimate issue in the trial.

5. The Learned Trial Judge inadequately directed the jury in
    relation to the uncorroborated evidence of the complainant. (Page
    16 of the Summing Up).

6. That in consequence of grounds 1 - 5 above the accused did not
    receive a trial according to law and the verdict is unsafe and
    unsatisfactory.

7. That the sentence of imprisonment is manifestly excessive in the
    circumstances."

29. An additional ground which is said to add something to those in the Notice of Appeal is:-
    "1B The Learned Trial Judge erred in the directions he gave to the
    jury in relation to complaint evidence.

1B(1) His Honour failed adequately to draw to the attention of the
    jury the significance of the delay in making the complaint (Summing
    Up Page 13).
    (ii) His Honour erred in directing the jury that the significance of
    the complaint was relevant 'only' to support the story of the
    complainant (Page 13).
    (iii) His Honour erred in failing to direct the jury that they ought
    to consider the reasonableness of the delay in making the complaint.
    (iv) His Honour erred in failing to direct the jury that if they did
    not accept the explanation offered by the complainant as to the
    delay in making the complaint that such delay could adversely affect
    the credit of the complainant."

30. The first attack launched by Mr Abbott QC, for the appellant, on the conviction and on the conduct of the trial was about the "complaint" which Ms Howe made to Ms Leckie. No challenge to its having been made was offered. All relevant authorities touching the question of admissibility of a complaint in circumstances of sexual attack were discussed. I have, with varying depth of study, considered them. It is said that the learned trial judge erred in admitting the evidence of the "complaint".

31. I reject this argument. Of course it would have been possible for Ms Howe to have communicated with someone earlier. But with whom? Perhaps she knew Ms Leckie's address. Her flat was on the telephone. She could have rung an emergency number. She could have looked up the telephone book and rung the police at the station nearby. She could have run to the station. She could have disturbed occupants of a nearby flat. All this, in my opinion, would amount to a counsel of perfection. She was, she said, afraid. There seems to be no reason to doubt that. She sat for a long time armed with a knife.

32. Perhaps Ms Howe could have complained to Ms Leckie earlier the next day. I think it natural for her to have waited until the morning break. The authorities do not demand the making of a complaint as soon as possible in the strictest sense. Let it be said that what they demand for admissibility is a complaint made at the first reasonable opportunity after the attack. I think that in all the circumstances here the complaint was so made. It was correctly admitted into evidence. Nor does the lapse of time make it automatically unreliable. I mention the important fact that the complaint was admitted without objection. The delay and the circumstances of the complaint were made a springboard for an attack on the credibility of Ms Howe.

33. I think that the learned trial judge gave, contrary to the submissions of Mr Abbott QC, adequate directions about the purpose of receiving the complaint and the use to which it could be put.

34. I reject Ground 1 and Ground 1B of the Grounds of Appeal. The learned trial judge directed the jury thus:-
    "You have to consider the fact she did not scream or call out, that
    she did not go to ring for assistance immediately the accused had
    gone. But you will bear in mind the evidence of her friend, Miss
    Leckie, who saw her at work the next morning and she was obviously
    distressed and to whom she made a complaint about what had occurred
    when asked by Miss Leckie about her distress. This led directly to
    the involvement with the police.

You will recall that the evidence of Miss Leckie was not really
    contested in cross-examination. If you accept that evidence, then
    it is to the effect that Anne-Marie made a complaint of sorts
    without detailing precisely what had occurred about the assault, the
    rape, on the day after the alleged rape took place. I direct you
    that the terms of the complaint cannot as a matter of law be treated
    as evidence that the rape happened. The only relevance of the
    complaint, if you accept that it was made, is that it may show that
    Anne-Marie's conduct was consistent with her evidence about what
    happened.

It is important that you understand the manner in which this
    evidentiary material may be used properly. Evidence of the making

    of the complaint at the first opportunity after the alleged offence,
    an opportunity which reasonably offers itself, and evidence of what
    was said, is admissible only for the purpose of demonstrating
    consistency in the sworn evidence given by Anne-Marie and with a
    view to negativing any suggestion of recent invention of evidence by
    her. It goes only to the question of her reliability and
    credibility as a witness. Common sense and ordinary experience
    suggests that one would naturally expect the victim of an offence of
    the nature charged against the accused to complain at the first
    opportunity. If the complainant does so, it affords some ground for
    accepting that she is speaking the truth. Of course you will
    remember when assessing this aspect of the evidence that Miss Howe
    had a telephone in the unit which she did not use after the accused
    had gone. In addition you will recall her reasons in evidence for
    her not so doing. That is to say that she was petrified, frozen to
    the spot as it were, and that she sat on the couch unable to move
    for two hours clutching a knife and then went to bed and slept
    holding the knife.

The substance of a complaint of this type is not, and never can be
    used, as positive evidence of the fact complained of and the reason
    for that is obvious. It would be very dangerous and prejudicial to
    permit a person to give self-serving evidence of a statement of
    alleged fact made to a person in the absence of the person spoken
    about, that is the accused, who would in turn have no opportunity of
    refuting or challenging what was said at the time.

It is for you to decide whether the alleged complaint was made but,
    in reality and on the evidence, there seems to be no question about
    that.

In deciding what weight you attribute to the complaint made and as
    to the credibility and reliability of the complainant Miss Howe, you
    should particularly bear in mind circumstances leading to the
    complaint and the context in which it was made. You will recall
    that Anne-Marie had few friends. Adele was her best friend and
    Adele spoke to Anne-Marie immediately she first saw her on the
    following morning at a time she arrived at their place of common
    employment and shortly before she, Adele, commenced work for that
    day."

35. I see no fault, no inadequacy, in these directions. They do not, in my opinion, transgress any authority. I draw particular attention to the two sentences beginning "The substance of the complaintÉ.". In my opinion this was not a case calling for directions that the delay could be used adversely to Ms Howe. It was a short delay. The jury had been addressed on the point.

36. The next ground of appeal debated (see Outline of the Appellant) was the issue of corroboration. In his Outline Mr Abbott wrote:-
    "2. CORROBORATION

2.1 The Learned Trial Judge gave insufficient directions as to the
    dangers of acting upon the uncorroborated evidence of the
    complainant.

2.2 His Honour's directions as to what is corroboration were not
    sufficient to enable the jury to understand the significance, in
    law, of the requirement for corroboration.

2.3 Having found that there was no corroborative evidence, the LTJ
    failed adequately to direct the jury as to the reasons for the
    danger of acting upon the uncorroborated evidence of the
    complainant."

I reject these submissions. The learned trial judge said:-
    "As is now plain to you, the Crown case hinges upon the evidence of
    the complainant. Her evidence in very large measure stands alone.
    It is important, therefore, to see if there is any evidence which
    provides independent support for what Miss Howe has to say.

It is a question of law as to whether such evidence exists, and that
    is a matter for me to decide, and it would be your job to decide
    whether you accepted it or not and what weight to give it if it did
    exist, but I am obliged to direct you that there is no such
    evidence. There is no evidence which provides independent support
    for what Miss Howe told you in respect of the offence of rape
    itself. In the absence of such evidence, you must scrutinise her
    evidence with special care. You ought not to act upon it unless
    after careful scrutiny you are thoroughly satisfied that her
    evidence can be relied on. I am not saying you cannot act upon her
    evidence because you can. What I am saying is you should look at
    her evidence with very great care before acting on it."

37. There is not much further that a trial judge can go than to say that there is no evidence which provides independent support of the evidence of a complainant. His Honour called for careful scrutiny leading to thorough satisfaction before the jurors acted on the evidence of Ms Howe. He had earlier said that when he spoke of words such as "satisfaction" he meant satisfaction beyond reasonable doubt. I find no fault in any of these directions.

38. The next ground argued was that the learned trial judge's directions to the jury that they could draw inferences adverse to the accused by his failure to call Carlo as a witness was unsound. Mr Abbott QC said that the failure was explained. An explanation was tendered. The importance of the evidence which Carlo might have been expected to give is obvious.

39. The learned trial judge said:-
    "The Crown suggests that the evidence given by all witnesses in
    support of the alibi of the accused is a fabrication, concocted
    specifically and deliberately around a false event at home, a family
    argument, so as to provide a lynch pin to jog the memory of all
    concerned as to what occurred on this night, the night that about
    one month later they all found out was the night the accused was
    alleged to have raped Anne-Marie Howe at Marden.

That case is that Carlo and the accused were in the unit early at
    Marden earlier that night so the accused knew where the unit was,
    and having left with Carlo, took Carlo home and returned and it is
    alleged that the events occurred.

I don't in that very brief description of the Crown case intend to
    be any fuller because you have had the benefit of the address of the
    Crown case.

Mr White has asked you to consider the evidence given on behalf of
    the accused in light of the fact that Carlo, who was named in the
    alibi notice, which is an exhibit you shall have when you return to
    the jury room, was not called. You are asked to draw an adverse
    inference from his being absent from the witness box. You have
    heard what Mr Lyons said about that and you will take that into
    account.

I have mentioned the topic of motive. What motive would Anne-Marie
    Howe have for saying what she said the following day about the
    behaviour of the accused? The defence case is that her motive is
    that she heard the accused describe her to Carlo, of whom she was
    fond, as a cow, a dog, a scagger and he then insisted that he and
    Carlo leave the flat. She denied having heard those words. Carlo,
    say the Crown, may be able to comment about it and about the evening
    in total.

The defence case is that Carlo is ill. For about four years he has
    had schizophrenia and is unable to take part in a sensible, logical
    conversation. All of the defence witnesses, including the accused,
    said so with the exception of Miss Kubiak. She, you might think,
    went some way to supporting Anne-Marie Howe in that they both said
    they generally had no trouble talking sensibly to Carlo at that
    time.

Bear in mind the comments of counsel, Mr Lyons and Mr White about
    that, particularly about what Mr Lyons had to say about Ms Kubiak.
    You recall that the family said Carlo is best kept under almost
    constant supervision and is only allowed to go to the Balmoral deli,
    two or three houses from home, alone.

However, I imagine you will have little difficulty accepting he was
    at Marden, some distance from Dernancourt, alone on the afternoon of
    10 August and met Anne-Marie Howe and went with her to her unit at
    that time.

Ladies and gentlemen, it is for you to decide whether the absence of
    Carlo is telling against the accused. It is for you to decide
    whether the explanation which has been given as to Carlo's health is
    an obvious and satisfactory explanation for the failure to call
    Carlo, given as it may have been from what was said in the address
    by his counsel, by the accused's counsel, upon the advice of his
    lawyers. Remember that the date on the alibi notice in evidence is
    February 1995.

If you accept the explanation relied upon by the defence as
    satisfactory, then I direct you, as a matter of law, that you may
    not make an inference adverse to the accused based upon Carlo's
    absence from the witness box.

If you are not prepared to accept that explanation, then you are not
    entitled to speculate upon what he might have said. You must act
    only on the evidence before you. But it is open to you to infer
    from such a failure to call Carlo, having rejected the explanation
    given, that the evidence of Carlo would not support the accused's
    contention as to what he said that night at Marden and in relation
    to those matters where there is a dispute, such as where Anne-Marie
    Howe sat and whether she was touched on the leg by Carlo or not, and
    what the accused did thereafter."

40. It was an open issue, one which the jury was entitled to consider. Of course, they might have expected to hear from Carlo at the insistence of the defence. If a brother announces in a notice before trial that a brother will support him jurors might well expect to hear that support. They heard here that Carlo was ill, that he had schizophrenia. They had no medical evidence. They read no medical report. Is it medical fact that schizophrenia would make it impossible for a man to give the evidence expected of Carlo? He seems to have spoken rationally to Ms Howe on the 9th of August. No help was given to the jurors. Speculation is not permissible. But it was for the jury to say. To say, that is, whether the absence of Carlo was adequately explained. The learned trial judge did not go too far. He told the jurors that it was open to them to infer that Carlo would not have given evidence supporting the evidence of the appellant. The learned trial judge told the jurors that if they accepted the explanation of Carlo's absence as satisfactory they could not make any inference adverse to the appellant from the absence of Carlo. The learned trial judge left it to the jurors. He correctly directed them. In my opinion, the jury was, having heard the sound directions from the learned trial judge, entitled to think that Carlo would not have helped his brother had he come to give evidence. The jury was, from there, entitled to make findings adverse to the appellant about the whole of his defence. Of course, the jury knew that they had to consider the evidence of the accused and his witnesses very carefully and impartially. But in the end they were entitled to think that the defence was an untruthful attempt to save the appellant by lies. The failure of Carlo to attend with, as I hold, no adequate evidence of his health and its significance was capable of assisting the jury to a finding adverse to the appellant about the alibi evidence.

41. That is without any heed of the appellant's flight. I have not yet mentioned this because the learned trial judge said of it to the jury "You may think this evidence on this topic is equivocal, that it points neither one way nor the other with any conviction.". It is probable that the jury took no notice of the flight.

42. The appellant left for Italy in February 1995 without notice to the police. The learned trial judge said to the jury:-
    "The Crown also asks you to infer that the departure of the accused
    for Italy in February 1995 without notice to the police is evidence
    of consciousness of guilt. There is no doubt he went. He told you
that and it is an agreed fact that he was not available when required
    at court in March 1995.

It is necessary for you to weigh the fact of his going with his
    explanation. Mr Lyons took you through it in some careful detail
    this morning. He went because he was scared, that he did not do it,
    that is commit the offence, but thought that the man who was charged
    was never believed in court, so he wrote the letter in evidence,
    which is Exhibit D1, and went. You will have that letter, as has
    been said, when you retire. You may think this evidence on this
    topic is equivocal, that it points neither one way nor the other
    with any conviction.

I direct you in relation to this evidence relating to the absence of
    the accused from Adelaide shortly before he was required to answer
    the charge in this court in March 1995 that you must decide on the
    whole of the evidence before you what inference, if any, you are
    prepared to draw from the accused's departure for Italy at that
    time. That includes his non-presentation to the police upon his
    return.

If there is any explanation reasonably available other than of a
    guilty conscience then the evidence is equivocal. If, however, at
    the end of the day you decide to infer a consciousness of guilt in
    the accused for the offence alleged from this behaviour, you must be
    satisfied beyond reasonable doubt of such inference."

43. Certainly, in my opinion, the jurors were entitled to treat the flight as something done out of a consciousness of guilt if they saw fit. The learned trial judge very benignly spoke of the evidence as probably being equivocal. He gave no encouragement to the jury to take any notice of it. He could not have done more. (See generally on this issue R v Power and Power Unreported CCA 29th May 1996)

44. The appellant contended that the verdict was unsafe and unsatisfactory. My review of the evidence, submissions and summing up does not in the least suggest to me that there is any danger that the verdict is unsatisfactory or unsafe. There was sufficient evidence for the jury to decide that guilt was established beyond reasonable doubt. True, it came but from one witness. But the jurors, under the careful and impartial control of the judge, were entitled to accept that evidence as true beyond reasonable doubt. The majority of the jury must have had little hesitation in thinking that the answer offered by the appellant was deliberately false. Of course, that in itself would not have justified a conviction. But, as I say, the jury was entitled to accept the evidence of Ms Howe as having been true beyond reasonable doubt.

45. The appellant had a fair trial according to law. His attempt to escape failed.

46. The appellant complained that the sentence was manifestly excessive. Mr Abbott QC said that the learned trial judge had sentenced as if it were a case of penile rape. He says that the learned trial judge gave too much weight to the past offences of the appellant. None was a sexual offence. In sentencing the sentencing judge said:-
    "I have no need to detail the circumstances of the offence. You
    clearly sought full sexual relations with the Complainant. The
    offence occurred as you were trying to change her mind while she
    steadfastly refused you. To do so you had forced her to her bedroom
    against her will, and obviously so. At all times the offence of
    rape is serious. However, this offence is towards the lower end of
    that offence. The only thing that may be said in your favour is
    that you desisted when the Complainant continued to refuse your
    advances.

Plainly, you must go to gaol for some time. I am sure from my
    observations of your parents in Court that they will also, in their
    own way, serve every day of your time in prison. Perhaps that is
    something that may cause you some degree of contrition - as clearly
    nothing else has. I say this having read and noted the medical
    reports relating to your mother and having again had regard to what
    Mr Lyons has said to me this morning.

In imposing sentence I bear in mind that in this sentence there must
    be a deterrent aspect in the hope of persuading other young men, of
    similar irresponsible thought, to think again and to realise that
    the Courts will act to protect young women.

You will be sentenced to four years and six months imprisonment.
    Clearly, suspension of that sentence is out of the question. There
    is to be no discount to the sentence. I fix a non-parole period of
    two years from 30 July 1996. I impose the levy and allow no time to
    pay."

47. I can see no fault by way of commission or omission in these remarks. I see no evidence of the giving of too much weight to the past offences nor of treating the offence as if it were penile rape. It was a brutal sexual assault with fingers in the home of the victim. The head sentence is, in my opinion, reasonable, the non-parole period lenient.

48. I would dismiss the appeal.

JUDGE2 DOYLE CJ

49. I agree that the appeal should be dismissed, for the reasons given by Bollen J.

JUDGE3 LANDER J

50. I also agree that the appeal should be dismissed for the reasons given by Bollen J.