R v Higgs

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HIGGS
[2011] SASCFC 108
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice David and The Honourable Justice Peek)
14 October 2011
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT - MENS REA, HONEST AND REASONABLE MISTAKE AND RECKLESSNESS - RECKLESSNESS
CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - GENERAL PRINCIPLES
Appeal against conviction – appellant found guilty by Judge alone of two counts of rape – complainant was 16 years of age at time of charged act – no need for trial Judge to make a finding on alternative charges of unlawful sexual intercourse – no dispute that the act of intercourse took place – no dispute that the appellant and complainant had been drinking alcohol together prior to intercourse occurring – issues at trial were whether the prosecution had proved the complainant’s lack of consent and proved the appellant’s reckless indifference as to whether the complainant was consenting – whether there was sufficient evidence for trial Judge to find proved beyond reasonable doubt that the appellant was aware the victim was not consenting – appellant claimed in an interview with police immediately after the charged act that he thought the complainant was 17 years of age – whether the trial Judge erred in failing to adequately consider the appellant’s record of interview – whether the trial Judge reversed the onus of proof by describing the appellant’s evidence as “unlikely” – whether the trial Judge adequately considered the reliability of the complainant’s evidence – evidence that the complainant had not had sex before was inadvertently led – whether trial Judge misused that evidence.
Held (Doyle CJ and David J): there was ample material for the trial Judge to conclude that (1) the complainant was not consenting; (2) the appellant proceeded to have intercourse regardless of the possibility that the complainant was not consenting; and (3) the appellant was recklessly indifferent as to the complainant’s consent – the appellant’s knowledge of the complainant’s age was a side issue as there was no need to make a finding on the alternative charges of unlawful sexual intercourse – the trial Judge did not err in his consideration of the record of interview – the trial Judge correctly applied the onus of proof – there is no reason to think the trial Judge did not consider the reliability of the complainant’s evidence – counsel could have sought an adjournment or made an application to abort the trial when the complainant gave evidence that she had not had sex before – counsel did not do so – the appeal should be dismissed.
Held (Peek J dissenting): the trial Judge erred by not considering the reliability, as opposed to the credibility, of the complainant’s evidence – the trial Judge made inadequate findings of fact where the complainant’s version of events differed from the appellant’s version – the trial Judge misused the complainant’s evidence that she had not had sex before – the appeal should be allowed and a retrial ordered.
Appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 46, s 47, s 48, s 49(3), s 49(4); Evidence Act 1929 (SA) s 34L, referred to.
R v Sierke [2011] SASCFC 53; R v Edwards [2009] SASC 233, discussed.
R v Curtis (1991) 55 A Crim R 209; R v Daniel [2010] SASCFC 62, considered.

R v HIGGS
[2011] SASCFC 108
Court of Criminal Appeal: Doyle CJ, David and Peek JJ

DOYLE CJ: I would dismiss the appeal. I agree with the reasons given by David J. There is nothing that I wish to add.
DAVID J: The appellant was charged with two counts of rape upon a 16 year old female (“V”) contrary to s 48 of the Criminal Law Consolidation Act 1935 (SA) (“the Act”). Both offences were alleged to have taken place on the one occasion at the appellant’s house. The appellant was also charged with two alternative counts of unlawful sexual intercourse with a person under the age of 17 years contrary to s 49(3) of the Act. He elected for trial by Judge alone and was convicted by verdict of a Judge of both counts of rape. Consequently it was unnecessary to render verdicts on the alternative charges of unlawful sexual intercourse.
The appellant now appeals against both convictions. There are three grounds of appeal dealing with various aspects of the trial Judge’s decision which the appellant argues were erroneous and led to a miscarriage of justice.
In particular, the appellant argues that there was not sufficient evidence for the trial Judge to find it proved beyond reasonable doubt that the appellant was aware that V was not consenting to sexual intercourse or was recklessly indifferent to the lack of consent. This involves an analysis of s 46 and s 47 of the Act. The appellant also argues that the trial Judge did not adequately deal with the appellant’s interview in his reasons for verdict and further argues that during part of his reasons the Judge has misdirected himself on the onus of proof.
Trial
I set out the Information in full:
First Count
Statement of Offence
Rape. (Section 48 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
David Paul Leslie Higgs between the 30^th day of May 2010 and the 31^st day of May 2010 at Evanston Park, had vaginal sexual intercourse with [V], without her consent.
Second Count
Statement of Offence
Unlawful Sexual Intercourse. (Section 49(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
David Paul Leslie Higgs between the 30^th day of May 2010 and the 31^st day of May 2010 at Evanston Park, had vaginal sexual intercourse with [V], a person of the age of 16 years.
Third Count
Statement of Offence
Rape. (Section 48 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
David Paul Leslie Higgs between the 30^th day of May 2010 and the 31^st day of May 2010 at Evanston Park, had vaginal sexual intercourse with [V], without her consent.
Fourth Count
Statement of Offence
Unlawful Sexual Intercourse. (Section 49(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
David Paul Leslie Higgs between the 30^th day of May 2010 and the 31^st day of May 2010 at Evanston Park, had vaginal sexual intercourse with [V], a person of the age of 16 years.
As the case was presented, the second and fourth counts were alternative charges to the first and third counts respectively.
The Crown case at trial
V gave evidence that she was born on 6 July 1993 and at the date of the allegations she was 16 years of age. She has two sisters; one younger (“B”) and one older (“S”). Her father died on 27 April 2009. It was undisputed at trial that V remained in the family home for about three months after her father’s death and then, after a short period in hospital when she had pancreatitis, she returned home until she finally moved out in November 2009 and lived with the mother of a school friend. I will refer to the mother as “L”. She stayed there until late 2010.
At the beginning of 2010 she was in Year 11, although studying a Year 12 subject. As part of her normal physical education at school, V played badminton although there was no organised badminton team or course. She gave evidence that in 2010 although she was not playing competitive badminton, she was being coached at badminton to that end. Her coach was the appellant. V gave evidence that she knew the appellant through her sister, S. The appellant was also the badminton coach of S.
The appellant had had a sexual relationship with S commencing in about early 2009 for a period of approximately 10 weeks. In April 2010 the appellant initiated contact with V on Facebook and they communicated by that method for about five or six weeks. Before that, the appellant had met V only briefly and had not spoken to her.
Whilst the appellant and V were communicating on Facebook, the appellant offered to coach her at badminton. It was agreed that she would drive to his house and they would drive together to Lockleys to train. She did that on one occasion. She drove to the appellant’s house, picked him up and they went to the Lockleys badminton centre.
A week or so after that, on 29 May 2010, the appellant sent V a text message inviting her to come for drinks at his home the next day, Sunday 30 May 2010. V indicated, through a return text message, that she would attend at about 8.00pm. She arrived at about that time. She gave evidence that because she was on her P plates, and could not drive if she had been drinking, she thought she might be staying the night and therefore brought an overnight bag with her. Before this occasion the appellant and V had exchanged mobile phone numbers. V gave evidence that immediately before she went to the appellant’s house she had visited her grandmother. The journey from her grandmother’s house to the appellant’s house was 20 minutes and she gave evidence that she had eaten a big meal and had drunk a considerable amount of alcohol at her grandmother’s house.
V gave evidence that when she arrived at the appellant’s house, she consumed more alcohol provided to her by the appellant. Her evidence generally was that it began with alcohol mixed with Coca-cola and then progressed to consuming “shots” of liquor which she could not readily identify. Whilst they were both drinking they were watching television. At one stage, V left the lounge room to go to the toilet. She returned and sat back on the couch, where she had been previously sitting, and continued drinking alcohol with the appellant. Some time later she went to the toilet again and was feeling, as she described it, “strange” and “really surreal”. She said she had trouble walking. V gave evidence that, when she returned, she said to the appellant “I am fucked, I don’t feel very well”. She added, “I have had too much to drink”. According to V, the appellant replied “No, you’re fine”.
She then said that the appellant asked her to do 30 sit-ups to see whether her stomach muscles were strong enough for badminton. There had been some discussion leading up to that request about having strong stomach muscles for badminton. She then described doing sit-ups and whilst that was happening, he was straddling her legs at about the knee and touching her stomach. V then went and sat back on the couch and once again told the appellant that she was not feeling very well. He once again replied that she was fine.
V said at that stage she was finding it very difficult to talk and she could not think clearly. She estimated that she had consumed about four mixer drinks and maybe three rounds of three shots. She then gave evidence that the appellant sat closer to her and kissed her on the mouth. She did not respond and in fact did not do anything or say anything, because she was not able to speak or move because of the effects of alcohol. The appellant then touched her breasts under her t-shirt. He removed her shirt. She did not help him do that, and did not want him to do that, but she was unable to resist because of her condition. He then removed her bra, lay on top of her and eventually removed her pants and her underwear. The appellant then took his shirt off and started to kiss and lick the outside of her vagina and inserted his fingers into her vagina. He eventually had penile vaginal intercourse with her in the lounge. That alleged act of intercourse was the subject of the first count.
V then gave evidence that she did not say anything to the appellant while the intercourse was taking place and did not move in any way, because she was unable to.
She then gave evidence that the appellant dragged her into a bedroom. She was placed on a bed and he went into an ensuite bathroom and came out with some baby oil. The appellant then put some baby oil on her vagina. V gave evidence that to do that he spread her legs open with his hands. At that stage she was trying to make herself speak and make herself move, but nothing was happening because of the condition she was in. The appellant then got on top of her and had penile vaginal intercourse. That behaviour was the subject of the third count on the Information. V said that while that act of intercourse was taking place, she kept trying to move and at one point she managed to push to make her arms move and she pushed him off. She said she got up, she was swaying and everything was dizzy and she went into the lounge room. When she pushed him off her, his penis was still inside her vagina. She thought he might do it again, and she left the house. She put on her clothes in the lounge room, got her bag and her keys and ran out of the door to her car. She forgot to put her shoes on and forgot to put on a hooded jumper, which she had brought with her. She left those items at the house.
V gave evidence that she then drove up the road and, because she was so terrified, she locked the doors of her car. She remembers making a phone call to a friend of hers (“N”). There is no dispute that the person N received that phone call and contacted the police, who pulled V over. V then said that when that happened she ran from the car because the police were two males, they both had guns and, in the condition she was in, she was scared.
N, in response to the phone call, had already come to the scene and pulled up and V ran over to her and spoke to her. V eventually went back to L’s residence and then to the hospital. Whilst at L’s place, at 11.49pm, she received a voice message on her phone from the appellant saying he was coming to look for her because she could not drive home because she was too drunk. There was a further message from the appellant at 12.01am where the appellant said he was out looking for her, asked her to give him a call and said “I’m sorry for whatever happened, ok? I’ll be better, ok? Give me a call please, call, please”.
V gave evidence that she did not consent to the appellant having vaginal sexual intercourse with her on either of the two occasions and did not consent to any of the sexual activity that occurred that night.
N was called. She is a female friend of V and is about three years older. N gave evidence that, as of 30 May 2010, she had known V for about three years. They became quite close friends and communicated over the phone and on Facebook.
On 30 May 2010, she received a text message on her phone at about 9.30pm in which V said she was at the appellant’s house and was possibly having dinner with him. She then received a further message which indicated that the appellant and V were having alcoholic drinks together. N replied that she was a “dickhead”. That was because she did not approve of V having alcoholic drinks with a person she hardly knew. At about 10.30pm she received a garbled message from V indicating to N that V was drunk. At 11.49pm she received a phone call from V in which V was screaming on the phone, alleging she had been raped. N gave evidence that the voice she heard on the phone was very distressed or hysterical. She found out where V was on the Sturt Highway and informed V that she was going to ring the police, which she arranged. N then left the house with her parents and eventually came across V and some police cars. She saw V running towards the police and, when the car N was in pulled up, V changed direction and ran towards her. When V was approaching she said to N that “He raped me”. N gave evidence that V was very distressed. She eventually got into the police vehicle and N travelled in the back of the police vehicle with V to a police station. During the journey N observed that V was scared and distressed.
The prosecution also called the police officers who attended the scene. They also called the medical practitioner who examined V in the early hours of the morning of 31 May 2010. There was nothing in the examination consistent or inconsistent with V’s version of events.
A police officer, Ian Rowe, gave evidence that he attended at the appellant’s residence in the early hours of the morning of 31 May 2010 and spoke to him about the allegations. He then arrested the appellant and took him to the Elizabeth Police Station where a formal record of interview was conducted (Exhibit P5). During the record of interview, the appellant admitted having penile vaginal intercourse with V on the occasions alleged, but insisted that at all times he believed that she was consenting. He also said in his record of interview that he thought at the time intercourse took place V was at least 17 and a half years of age. He said that he had learnt that from V’s sister some time before.
The prosecution at trial called V’s sister (“S”). She gave evidence that in 2009, shortly after her father had died, she told the appellant that V was 13 years of age, therefore contradicting that version given by the appellant in his statement to the police. Evidence was also led by the prosecution that two breath analysis tests were conducted upon V while she was at the Nuriootpa Police Station. The first test, which was conducted at 1.21am returned a reading of 0.075 grams of alcohol per 100 millilitres of blood. The second test at 2.11am returned a reading of 0.062 grams of alcohol per 100 millilitres of blood. Further opinion evidence was called suggesting that at the time of the alleged offending V had a blood alcohol level of between 0.04 and 0.11 grams per 100 millilitres of blood.
The appellant gave evidence on oath and called a witness of good character. He told the Court that he was aged 53 at the time of the alleged offending and he had never been charged with a criminal offence before this matter. He told the Court of his interest in badminton. He gave evidence that he coached badminton at a secondary school in Gawler where he met S. He started coaching her at badminton in early 2009. He then had a relationship with S which began in February or March 2009 and lasted for about 10 weeks. That was at about the same time as S and V’s father died. He said in evidence that during that relationship he had a conversation with her about V’s age and as a result of that conversation thought that V was nearly 17 at the time that her father died in early 2009. He got the impression that at around about June or July 2009 that V had turned 17, which would make her nearly 18 at the time of the alleged offending. It is to be noted that if the trier of fact found that it was reasonably possible that that was the appellant’s state of mind concerning the age of V and he held that belief on reasonable grounds, then that would be a defence to the two alternative charges of unlawful sexual intercourse.[1]
[1] Criminal Law Consolidation Act 1935 (SA) s 49(4)(b)(ii).
The appellant then gave evidence of first coming into contact with V in 2010. He got to know V through S’s Facebook. This developed to the stage where the appellant would have private Facebook communications with V. He explained to the Court how that system worked. One of the topics they spoke about on Facebook was V’s annoyance with a person as old as the appellant having a relationship with her sister. At one stage an arrangement was made for the appellant to give coaching lessons to V at a badminton stadium at Lockleys.
On 21 May 2010, after arrangements were made by text messages, V came to the appellant’s house and in the appellant’s car both of them travelled to Lockleys for the purposes of badminton training. The journey normally took between 45 and 55 minutes coming from the northern suburbs. After the lesson the appellant drove V back to his house where her car was. During that journey there was a discussion about a “tertiary studies expo” that was to take place on 30 May at the Adelaide Entertainment Centre. As V was doing a Year 12 subject, once again the appellant gave evidence that he believed that she was nearly 18 years of age. His evidence was that this confirmed the comments made about her age by S.

The appellant then gave evidence that, after that occasion and before 30 May when the expo was scheduled, he invited V through a text message to come to his place for drinks to talk about her going to the expo. The expo was to take place on Sunday 30 May and Monday 31 May 2010. The appellant gave evidence that he invited her to drinks on the Sunday evening in order to discuss with her the possibility of taking her to the expo on the following Monday and also to talk about her expectations in relation to badminton coaching. By a series of text messages between the two on 29 and 30 May 2010, it was clear that the appellant had invited V to come to drinks on the Sunday night and the end result was that V agreed and in fact said, “Can’t wait coach”.
The appellant told the Court that V arrived at his house at about 8.30pm and he offered her alcohol to drink. She drank schnapps and brandy and coke and they watched television in the lounge room. At one stage V went to the toilet. When she came back he did not notice any impairment in her movements, nor did he notice anything out of the ordinary. Further drinking continued. She went to the toilet on a second occasion and he once again noticed nothing unusual about her movements or her manner. When she returned from the second visit to the toilet, they talked about her fitness for badminton and, consistent with V’s evidence, she did a number of sit-ups. The appellant gave evidence that by lifting her shirt, V invited the appellant to feel her abdominal muscles which he did although he felt uncomfortable in doing so. After she had done the sit-ups the appellant gave evidence that he did not notice anything wrong with her or any level of impairment.
He then gave evidence that after a certain amount of consensual foreplay in which both participated, V got up off the couch and made her way towards the bedroom. The appellant followed. It is to be noted that, contrary to V’s evidence, the appellant did not say any form of sexual penetration took place in the lounge room. The appellant then gave evidence that consensual intercourse took place in the bedroom. He gave evidence that at one stage he went into the bathroom and obtained some baby oil to lubricate the area of V’s vagina. She fully consented to intercourse taking place and, according to the appellant, at one stage clearly climaxed. He gave evidence that she was fully participating and penile intercourse took place for about 10 to 15 minutes. He gave this evidence:
QIf I can just stop you there, during this period of sexual activity in the bedroom, at any stage did she tell you to stop what you were doing.
ANo.
QAt any stage did she physically resist what you were doing.
ANo.
QWhat did you believe the state was with regard to consent.
AI thought she was in total agreement of consent.
The appellant then gave evidence that for an inexplicable reason she left the bedroom without saying anything. He thought she was going to her car to get something and then would come back, but this did not happen. He then observed her driving her car down the road without her lights on. He tried to contact her and was worried about that fact that V was potentially driving whilst over the legal limit as far as alcohol was concerned. He then started to look for her by driving around the area, but was unsuccessful.
The gist of the appellant’s defence was that there was one act of penile vaginal intercourse with V and it was in his mind consensual. There was no obvious impairment of V and she appeared to participate willingly. In relation to the alternative charges he genuinely thought that, because of information he had received from her sister, V was over the age of 17 years at the time.
The Judge’s decision
The Judge, in his reasons for verdict, found V to be an impressive witness. He accepted her evidence as to the amount of alcohol that she had drunk, and that she was affected by alcohol. Importantly, he accepted her evidence that when V came back from the toilet on the second occasion and the appellant asked her to do some sit-ups V said, “I’m fucked. I don’t feel very well” and the appellant replied that she was in fact fine. He also rejected the evidence of the appellant that in fact V was “sexually aggressive” by leading the appellant into the bedroom and consenting to sexual intercourse.
Part of his reasoning in coming to that conclusion was that V had given evidence that she was a virgin and also there was evidence from text messages between V and the appellant that she was disapproving of sexual relationships between an older man, such as the appellant, and a younger person, such as her sister. The trial Judge made it clear that he did not use the evidence of V’s virginity to say she would be unlikely to engage in sexual intercourse because of that. He confined the use of that fact to deciding whether she was sexually aggressive in the way that the appellant described. It is to be noted that the evidence of V that she was a virgin was not led by the prosecutor. During her evidence in chief, having said that the appellant placed his penis inside her vagina, his Honour interrupted the questioning and asked the following questions:
QDid any of this hurt you physically.
AA little bit, yeah.
QWhereabouts did it hurt you physically.
AMy vagina, I hadn’t had sex before.
Having scrutinised all the evidence, the trial Judge found:[2]
I am satisfied beyond a reasonable doubt that he asked her around for a drink because he was interested in her sexually. I find that he deliberately encouraged her to drink alcohol to make her more amenable to accepting his advances. I am satisfied beyond reasonable doubt that he initiated and pursued the sexual conduct that occurred between them that evening.
I find that as a result of a voluntary and intentional act on his part he had penile vaginal sexual intercourse with the complainant on the couch (Count 1) and in the bedroom (Count 3) without her consent. The immediate flight by the complainant and complaint of rape and distress is explicable by his having had sexual intercourse with her that evening in the circumstances she has described.
I have no doubt that he hoped she would consent to his advances. I have no doubt however that he knew she was impaired by alcohol consumption and, at the very least, was aware of the possibility that she might not be consenting to acts of sexual intercourse. In these circumstances he proceeded to have intercourse with her anyway but failed to take reasonable steps to ascertain whether she was in fact consenting, in fact I find that he took no steps. No doubt her lack of struggle may have encouraged him that she would at least tolerate his sexual advances and not complain afterwards. I have considered but reject as a reasonable possibility that his own intoxication made him unable to read the signs that she was not consenting.
He should have taken steps to ascertain her attitude to the sexual intercourse due to her young age (whether it be 16 or 17), her intoxication - obvious and expressed by her to him, her lack of participation in the sexual encounter and the short duration of their acquaintanceship all of which made him aware she may not have been consenting.
As well as rejecting the version of the defendant I have considered whether there are other hypotheses consistent with innocence. In my view there are none.
[2] R v H, DPL [2011] SADC 71 at [88]-[92].
Appeal
The grounds of appeal are as follows:
1.The Learned Trial Judge erred in finding that the element of consent had been proved by the Crown beyond reasonable doubt as required by Division 11 of the Criminal Law Consolidation Act 1935 as amended.
2.The Learned Trial Judge erred in failing to adequately consider and comment on the Applicant’s record of interview as presented in the Prosecution case in deciding whether the charges of rape had been proved beyond reasonable doubt.
3.The Learned Trial Judge erred in dealing with the topic of complaint as expressed in paragraphs 80-85 of the verdict.
4.The Learned Trial Judge erred in rejecting the evidence of the applicant beyond reasonable doubt on the basis that it was “unlikely”, see para 87 of the judgment.
Ground 3 was discontinued, leaving three grounds of appeal which I will deal with in turn.
Ground 1
The appellant now argues that, when dealing with the question of the element of consent, the trial Judge failed to properly apply s 47 of the Act. Mr White, counsel for the appellant, argues that even if it has been proved beyond reasonable doubt that V was not consenting, nevertheless the circumstances surrounding the events were such that the prosecution at trial could not discount as a reasonable possibility that the appellant believed she was consenting. It is to be noted that the trial Judge found it proved that V was impaired by alcohol consumption and “at the very least [the appellant] was aware of the possibility that she might not be consenting to acts of sexual intercourse”.
To understand Mr White’s argument it is important to set out in full s 47 of the Act:
47—Reckless indifference
For the purposes of this Division, a person is recklessly indifferent to the fact that another person does not consent to an act, or has withdrawn consent to an act, if he or she—
(a)is aware of the possibility that the other person might not be consenting to the act, or has withdrawn consent to the act, but decides to proceed regardless of that possibility; or
(b)is aware of the possibility that the other person might not be consenting to the act, or has withdrawn consent to the act, but fails to take reasonable steps to ascertain whether the other person does in fact consent, or has in fact withdrawn consent, to the act before deciding to proceed; or
(c)does not give any thought as to whether or not the other person is consenting to the act, or has withdrawn consent to the act before deciding to proceed.
There was some discussion on appeal as to the difference between s 47(a) and s 47(b). Although it is unnecessary to reach a conclusion it was argued, and it appears, that the difference between the two is that if it has been proved that a defendant is aware of the possibility that the other person might not be consenting and then takes steps to find out whether in fact the other person was consenting or not, then there is an objective test imposed as to whether those steps which that person did take were reasonable. That is to be contrasted to s 47(a) where the person who was aware of the possibility that the other person might not be consenting takes no steps but proceeds regardless.
In the present case, the trial Judge found that he was dealing with the factual situation covered by s 47(a) because he says:[3]
In these circumstances he proceeded to have intercourse with her anyway but failed to take reasonable steps to ascertain whether she was in fact consenting, in fact I find that he took no steps.
(Emphasis added)
[3] R v H, DPL [2011] SADC 71 at [90].
In my view, the trial Judge has made a clear finding of fact accepting the evidence of V beyond reasonable doubt and similarly rejecting the evidence of the appellant on the salient issues. That being so, there was ample material for him to conclude:
1that she was not consenting, which was not in dispute on appeal;
2that he proceeded to have intercourse regardless of the possibility that V might not be consenting; and
3accordingly, that he was recklessly indifferent as to her consent, for the purposes of s 47(a).
Such conclusions were clearly open to the trial Judge by reason of the following factors:
1V was affected by alcohol during the course of the evening, and the appellant knew that;
2Irrespective of his knowledge of her specific age, she was still very young;
3On her evidence she had difficulty walking and at one stage was dragged into the bedroom;
4She told the appellant that she was not feeling well and that was ignored by the appellant when he insisted that she was fine.
I would dismiss that ground of appeal.
Ground 2
In the Judge’s reasons for verdict he briefly commented on the record of interview between the appellant and the police officer, Ian Rowe (Exhibit P5 at trial), when he said:[4]
[4] R v H, DPL [2011] SADC 71 at [13].
Interrogation of Accused
The defendant was questioned by police about his involvement in the alleged offences. I will use the evidence of what the defendant told police as evidence in the case whether it be for him or against him.
There was no elaboration upon that comment and there was no reference to detail.
Mr White argues that there is an aspect of his record of interview which should have been emphasised and taken account of by the trial Judge in his reasons for verdict. At trial the appellant gave evidence that he genuinely thought that V was above the age of 17 years because of conversations he had had with S. He said the same thing in his police interview. Mr White says this adds to his credibility the fact that he has consistently maintained that view. Therefore, in not referring to that in his reasons the trial Judge has erred when assessing the credibility of the appellant.
I reject that argument. It is first to be noted that the question of his knowledge of the age of V became a side issue by virtue of the fact that there was no need to make a finding on the alternative verdicts. His reference to evidence of what the defendant told the police “as evidence in the case whether it be for him or against him” is simply a reference to the fact that anything consistent with his version and therefore his innocence could be used for him by way of an assessment of his credibility as well as something that was inconsistent with his evidence could be used against him. Not elaborating any further could not amount to a miscarriage of justice.
I dismiss this ground of appeal.
Ground 4
Mr White argues that the following passage indicates a misdirection by the Judge as to the onus of proof. In dealing with the appellant’s evidence at trial, the Judge said:[5]
I find the defendant’s explanation for how these events occurred to be unlikely. I reject it beyond reasonable doubt notwithstanding the evidence of good character and heeding the directions I am required to give myself on that topic.
Mr White argues that by using the word “unlikely” he has misdirected himself on the onus of proof. The argument unfortunately ignores the words that follow.
[5] R v H, DPL [2011] SADC 71 at [87].
Throughout the reasons and indeed in the paragraph sought to be criticised the Judge has correctly applied the onus.
I would dismiss that ground of appeal.
Other matters
Since preparing my reasons I have had the opportunity and advantage of reading the draft reasons of Peek J but, unlike his Honour, I am satisfied that the trial Judge made adequate findings of fact and those findings are supportable. I am conscious of the fact that the trial Judge had the advantage of observing V whilst she was giving evidence and formed a definite opinion about her reliability as well as her credibility. The Judge described her as an “impressive witness”.[6] There is no reason to think that he was referring to just her credibility rather than both her credibility and reliability. He made clear findings of fact that accepted beyond reasonable doubt her version of events and it was upon that finding that he found it proved that the appellant was aware of the possibility that V might not be consenting to acts of sexual intercourse and failed to take any steps to ascertain whether she was in fact consenting.
[6] R v H, DPL [2011] SADC 71 at [56].
Peek J criticises the trial Judge’s use of evidence that V had not had sex before as going to the question of whether she was “sexually aggressive”. The concern that Peek J has as to the unfairness of labelling that piece of evidence as “unchallenged” is to be weighed against the fact that this evidence inadvertently came out during evidence in chief and before V was cross‑examined. If there was to be any challenge to that fact, there was no reason why counsel at the time could not have asked for an adjournment in order to obtain further information for the purposes of cross-examination or made an application to abort the trial.
It is to be further noted that the criticism as to the emphasis the trial Judge placed upon that evidence in his reasons was not the subject of any ground of appeal, nor was it raised or discussed in any way during argument. In any event, looking at the trial Judge’s reasons as a whole it appeared to play a minor part in his reasoning process.
Conclusion
I would dismiss the appeal.
PEEK J: This is an appeal against conviction of two counts of rape.
Introduction
The appellant was charged with committing two counts of rape upon the complainant, V, on the night of 30 May 2010. Count 1 was alleged to have been an act of vaginal intercourse in the lounge of the appellant’s house and count 3 a further act of vaginal intercourse occurring very shortly thereafter in the bedroom. Since the complainant was then under the age of consent of 17 years (she then being 16 years 10 months of age), there were also two alternative charges of unlawful sexual intercourse, counts 2 and 4 on the Information, of which the appellant could have been convicted if acquitted of rape. The appellant elected to be tried by Judge alone.
The complainant gave evidence of two acts of vaginal intercourse corresponding to counts 1 and 3 which she stated occurred without her consent. The appellant, on the other hand, gave evidence that there was only one act of vaginal intercourse, that it occurred in the bedroom and that he had believed that the complainant was consenting. He also gave evidence that he believed on reasonable grounds that the complainant was then aged over 17 years.[7]
[7] Since the complainant was in fact over the age of 16 years, if the appellant had been acquitted of rape, he would have had a special defence pursuant to s 49(4) Criminal Law Consolidation Act 1936 to the alternative charge of unlawful sexual intercourse if he had established that he at all times believed on reasonable grounds that the complainant was aged over 17 years as at 30 May 2010.
The trial Judge found the appellant guilty of both charges of rape. He returned no verdict on count 2 or 4 and made no finding as to whether the appellant did believe on reasonable grounds that the complainant was aged over 17 years as at 30 May 2010.
Background facts
The appellant was 53 years of age as at 30 May 2010 and had no previous criminal conviction. He gave a very lengthy interview when approached by police in the early hours of 31 May 2010 answering all of the questions put to him and gave evidence at his trial denying his guilt.
The appellant had been actively involved with badminton for more than 35 years, having played it competitively and professionally coached in the sport; since 2005 he had coached on a volunteer or unpaid basis. He had coached the older sister of the complainant, S, and had had a brief sexual relationship with her in early 2009 which lasted for about 10 weeks.[8]
[8] Ms SI gave evidence at trial primarily in relation to conversations she had had with the appellant relevant to his belief as to the age of her sister, the complainant. Both the prosecution and defence relied upon this and other evidence in the case to found diametrically opposed conclusions as to the appellant’s belief as to age. To fully analyse all of the opposing evidence and arguments would in fact be a difficult and lengthy task but I consider it unnecessary to perform to do so since his Honour made no findings in this area.
The appellant had access to S’s facebook page because of their previous relationship, as did her sister, the complainant, and both posted messages there. In the course of posting, the appellant came to communicate directly with the complainant from about 23 April, 2009.[9] They also commenced to communicate by telephone. This process led to the appellant agreeing to give some badminton coaching to the complainant with their first and only session occurring on Friday 21 May 2010 when the complainant drove to the appellant’s home and then drove with him to the badminton centre.
[9] Before this time, the appellant had very briefly met the complainant once at Starplex Badminton Centre at Gawler but they had not then spoken together.

On 29 May 2010, the appellant sent a SMS message to the complainant, inviting her to join him for drinks at his house on Sunday 30 May 2010. There followed a series of SMS messages between them, the last from the complainant confirming that she would attend for drinks, ending with ‘Can’t wait coach’ and a winking “emoticon”.[10]
[10] An icon representing a winking face at the end of the last sentence.
As appears from evidence to be discussed in more detail below, the complainant had been drinking alcohol heavily for some time, using it as an escape mechanism from a number of emotional problems. She stated in evidence that she knew that the invitation meant alcoholic drinks and that she intended to drink a good deal.[11] In answer to a question by his Honour she stated: “alcohol, since my father’s death, has been my outlet, if you like, for a lot of emotions and pain, and for me I was 16 years old and couldn’t really acquire my own alcohol, and so, when I got the offer, I absolutely just wanted to take it up ... mostly just to drink alcohol”.[12]
[11] Some of the relevant passages of evidence are set out below.
[12] T153.
The complainant also agreed that she had arranged with the appellant to stay overnight at his house because she had “P plates” which did not permit any alcohol level in the blood while driving.[13] When questioned by the prosecutor she stated:[14]
[13] She gave as a further reason that she had had a fight with her housemate Lorraine and did not wish to return to her house. That matter will be examined in more detail below.
[14] T44.
Q:Had there been any discussion about where you might stay if you went to Mr Higgs’ house for drinks?
A:    Yes.
Q:    What discussion was that?
A:To stay at his house because I was on my P-plates and I couldn’t drive if I had been drinking.
Q:    Did you understand the invitation to be to come and have some alcoholic drinks?
A:    Yes.
Q:When you left your home in Nuriootpa that day, did you have any overnight bag or anything which would enable you to sleep over?
A:    Can’t remember.
Q:    Might you had?
A:    Maybe, yeah.
The appellant gave evidence that the complainant had brought an overnight bag and the case was conducted on the basis that that was so.
The prosecution case as to the events occurring at the appellant’s house
The prosecution case on the rape charges was not that the appellant physically overpowered the complainant, or used either a weapon or threats to intimidate her, so as to accomplish sexual intercourse; nor was it that the complainant was asleep or unconscious. Rather, it was that the complainant did not consent to the appellant’s escalating sexual advances, or to the ultimate acts, but that, until she got up and ran off after the act of intercourse in the bedroom, she did not in any way manifest her non-consent either by word or action. According to the complainant, the explanation for this was that she was simply unable to do so, due to having fallen into an unusual physical and mental state in which she was conscious of what was happening but physically unable to speak or move.
The prosecution case was that the appellant was recklessly indifferent as to whether the complainant was consenting to sexual intercourse. It relied entirely on the word of the complainant.
The relevant legislation
Sections 48 and 47 of Criminal Law Consolidation Act 1935 (SA) appear thus:
48—Rape
(1) A person (the offender) is guilty of the offence of rape if he or she engages, or continues to engage, in sexual intercourse with another person who—
(a) does not consent to engaging in the sexual intercourse; or
(b)has withdrawn consent to the sexual intercourse, and the offender knows, or is recklessly indifferent to, the fact that the other person does not so consent or has so withdrawn consent (as the case may be).
47—Reckless indifference
For the purposes of this Division, a person is recklessly indifferent to the fact that another person does not consent to an act, or has withdrawn consent to an act, if he or she—
(a)is aware of the possibility that the other person might not be consenting to the act, or has withdrawn consent to the act, but decides to proceed regardless of that possibility; or
(b)is aware of the possibility that the other person might not be consenting to the act, or has withdrawn consent to the act, but fails to take reasonable steps to ascertain whether the other person does in fact consent, or has in fact withdrawn consent, to the act before deciding to proceed; or
(c)does not give any thought as to whether or not the other person is consenting to the act, or has withdrawn consent to the act before deciding to proceed.
Section 47 clearly brings about changes in the law as to the meaning and requirements of “reckless indifference”. However, before the prosecution may make use of those changes, it must first pass through the gateway requirement constituted by the introductory words “is aware of the possibility that the other person might not be consenting”. It is quite clear that the onus remains on the prosecution to prove beyond reasonable doubt this subjective requirement that the accused person “is aware of the possibility that the other person might not be consenting”.
As stated above, the prosecution could not point to any dissenting conduct by the complainant at all and the way in which the prosecution sought to prove the element of recklessness was rather unusual. It was to rely upon the very absence of conduct by the complainant; the prosecution’s contention was that this absence of conduct in the circumstances was such as to establish beyond reasonable doubt an inference that the appellant was “aware of the possibility that the complainant might not be consenting”.
The evidence of the complainant as to the events at the appellant’s house
The evidence of the complainant as to the events at the appellant’s house, in summary form, was as follows.
As referred to above, she was eager to drink alcohol on this occasion and stated that during the night she had a total of about 4 mixer drinks of coke and brandy and about 9 “shooters” (small shot glasses) of Butterscotch Schnapps. As the evening went on, she came to feel more and more out of sorts; she went to the ensuite toilet about ¾ to 1 hour after her arrival and at that time was feeling “a little bit odd”. She returned, had further drinks, and went to the toilet a second time about 40 – 45 minutes after the first visit at which time she was feeling “very very strange … really surreal … a bit like a dream …”[15]
[15] T55.
She stated that after returning from the toilet the second time, she did thirty sit ups. While she said that this was at the appellant’s suggestion, the appellant said that it was her idea to demonstrate to him her fitness for badminton, she being eager to impress him in that regard. In any event, she stated that the first alleged sexual overture occurred at this time:[16]
[16] T57-58.
Q:    While you were doing the sit-ups did he touch you in any way?
A:    Yes.
Q:    Where did he touch you?
A:    My stomach, my abdominals.
Q:    Was he touching your clothing or what was going on?
A:    At first he was touching my clothing and then he put his hand under my shirt.
Q:When you say he put his hand under your shirt where was his hand once he’d put his hand under your shirt?
A:    Still on my stomach.
HIS HONOUR
Q:    Did you say anything to him when he did this?
A:    I can’t remember, no, I don’t think I did.
XN
Q:    Did he say anything to you?
A:I don’t remember. At this point I was feeling very out of it; it’s very hard to remember really small details.
It is important to note that the complainant stated that this incident occurred before the onset of her inability to speak or move. At this stage, she could speak but abstained from doing so; she did not give to the appellant any indication that the touching was unwelcome.
The complainant then recounts a sequence of events wherein she finished the sit-ups, got back on the couch and said that she “was fucked” meaning that she wasn’t feeling very well. (The appellant gave evidence that he interpreted what she said as meaning that she was tired from doing the sit ups.[17]) In any event, he offered her another drink which she accepted and drank. She then began to feel worse:[18]
[17] T423.
[18] T61.
Q:    You drank the drink. What happened then?
A:    I began to feel a lot worse than I was already feeling.
Q:    What do you mean by that; can you describe that to us?
A:The same as what I was feeling but stronger, a lot stronger. So I felt my senses starting to sort of go, like I found it hard to move, yeah.
Q:    Did you have any physical illness?
A:    When you say ‘illness’?
Q:    Did you feel ill in any way physically?
A:    Yes, the ability to move was really difficult.
Q:    Had you felt like that before on other occasions when you’d drunk alcohol?
A:    No, not at all.
Q:    What was the difference?
A:I could still think clearly. On other occasions where I’ve been drunk you can’t think very clearly. On this night I could think clearly but my arms and legs and body parts, it was hard to move.
Q:    Did you say any of that to Mr Higgs?
A:By this point I was also finding it very difficult to talk. I don’t recall having any conversation at this point.
HIS HONOUR
Q:How much do you think you’d had to drink by this stage, how many glasses of spirits or mixer do you think you had?
A:I can’t recall exactly but I think I would have had maybe four mixers maybe, and maybe three rounds of shots, three lots of three.
The complainant then describes a process of the appellant changing position on the couch and starting to kiss her:[19]
[19] T63-64.
A:    He moved his head closer to mine and started to kiss me.
Q:    Where did he kiss you?
A:    On the mouth.
Q:    When he kissed you on the mouth did you feel his tongue?
A:    Yes.
Q:    Where was his tongue?
A:    In my mouth.
Q:    When he kissed you did you do anything to him?
A:    No.
Q:    For instance, did you kiss him?
A:    No.
Q:    Did you say anything?
A:    No.
Q:    Why didn’t you say anything?
A:    Because I was – couldn’t, I was unable to speak or to move.
The complainant stated that from this point until just before she departed the house she was physically unable to speak or move and therefore unable in any way to convey her dissent to the appellant.
The complainant then describes the appellant undressing her completely in the lounge room, licking the outside of her vagina and then digitally penetrating her, eventually having penile vaginal intercourse with her on the couch. The complainant stated that during this time she said and did nothing:[20]
[20] T68-69.
Q:Whilst he was doing that, moving his penis inside your vagina, did he say anything to you?
A:    He was moaning ‘Oh E…’. [name removed]
Q:    Did you say anything to him?
A:    No.
Q:    Did you move in any way while he was doing that?
A:    No.
Q:    Did you utter anything?
A:    No.
The complainant then describes a process whereby the appellant took her to the bedroom, put her on the bed, put baby oil into her vagina and again had penile vaginal intercourse. Again she emphasised that she was unable to say and do anything:[21]
Q:    How were you feeling at that stage?
A:    Just mortified, just disgusted, just really, really scared. Just couldn’t do anything.
Q:    Did you try to do anything?
A:I was trying to make myself speak, to make myself move, but nothing was just - nothing was working.
[21] T71.
Similarly she stated in cross-examination:[22]
[22] T119-120.
Q:Then there is a description of him kissing you to the mouth, kissing you to the neck as well.
A:    Yes.
Q:    But you didn’t say anything at that stage, you didn’t tell him to stop?
A:    I couldn’t.
Q:    And you didn’t try and push him away?
A:    I wasn’t able to, I was trying.
Q:    You weren’t asleep?
A:    No.
Q:    Then you have described him licking your vagina, you didn’t tell him to stop?
A:    I couldn’t.
Q:You have described him putting his penis into your vagina, you didn’t tell him to stop?
A:    Again I couldn’t.
Q:    And he also inserted his fingers into your vagina, you didn’t tell him to stop then?
A:    I wasn’t able to.
Q:And in relation to all of this sexual activity that is taking place on the couch, you don’t try and physically push him off with your arms or your legs?
A:    I did try but nothing seemed to work.
Q:There was no movement of your arms and legs while you were on the couch trying to get him off?
A:    Nothing would move.
It is to be noted that the complainant describes this physical incapacity as not only all encompassing but also as lasting for quite a lengthy period. Of course, one must allow for the possibility, to which the complainant herself refers, that events may seem longer than they actually are, but she agreed that she had given estimates to the police that the intercourse on the sofa in the lounge took twenty minutes followed by ten minutes of foreplay and digital penetration in the bedroom concluding with about another thirty minutes of intercourse on the bed in the bedroom, a total of about one hour.[23]
[23] T142-143.
The complainant then describes how, in the bedroom, she eventually regained her ability to move her arms and, having done so, pushed the appellant off her. She then got off the bed, put on her clothes, found her bag and keys, got into her car and drove away. The complainant agreed in cross-examination that her sudden recovery of movement and locomotion was remarkable:[24]
Q:Within a short period of time again you’ve gone from being, on your evidence, completely incapacitated to getting dressed the quickest you’ve ever got dressed in your life?
A:    Yes.
Q:    That’s a fairly remarkable recovery, isn’t it?
A:    Absolutely.
[24] T136.
The complainant made complaint of rape by telephone from her car to a friend and to police when they subsequently pulled her car over. There was a good deal of further evidence from the complainant, police officers and others as to the complainant’s later distressed condition and behaviour and I will refer to this below.
The complainant subsequently provided breath analyses. Alternative calculations from these readings and from her history of drinking gave respective maximum readings of .10 and .12 grams of alcohol per 100 millilitres of blood at about the time of sexual intercourse.
The complainant also provided a urine sample. This was tested and found negative for the drugs amphetamines, cannabinoids, morphine, cocaine, benzodiazepines, gamma-hydroxybutyrate (GBH) and other common drugs.
A brief overview of the defence case
The appellant voluntarily underwent a very lengthy police interview when police attended at his home, shortly after the relevant events, at 3.46am on the morning of 31 May 2010. He gave lengthy evidence at trial. The defence case as to the matters which, in their cumulative effect, led to his belief that the complainant was consenting to sexual intercourse may be briefly summarised as follows.
First, the complainant had enthusiastically accepted his invitation to come to his house for (alcoholic) drinks knowing that they would be alone together and knowing of his previous affair with her sister. She had arranged with him to spend the night and had brought a bag with her. She knew that she was not able to leave in her car once she had drunk any alcohol because of her “P plate” status. Further, she commenced enthusiastically drinking alcohol offered to her and in no way needed to be persuaded to drink it.
Second, the complainant did not physically rebuff his initial sexual advances (at the time of the sit ups) or voice any discouragement of him; it is not now suggested by the complainant that she was unable to do so at that particular time.
Third, the complainant did not physically rebuff his subsequent advances, or voice any discouragement but rather appeared to be taking part in the kissing and later sexual intercourse.
Fourth, the appellant maintained that he positively believed that the complainant was well over 17 years of age whereas in fact she was just under 17 years at the relevant date. However, he accepted that, even on the facts as he believed them to be, it was quite wrong, in light of the large age disparity, to do what he did.
Fifth, the appellant’s perception was that the complainant would understand that if a male and a female were drinking alcohol together and the male made a sexual advance which was not rebuffed, he would likely continue to make further escalating sexual advances unless she gave some indication, by word or gesture, that such were unwelcome. The appellant was emphatic in his interview with police, and in his evidence, that he would have stopped if there was ever any such sign, but there never was.
Sixth, the appellant asserted that the complainant performed certain acts which, in conjunction with the other matters already referred to, led him to believe that she was consenting. He asserted that these acts included undressing herself (she stated that he undressed her, she not resisting) and, in the bedroom, engaging in masturbation of herself and actively taking hold of his penis (she denied these acts).
Seventh, the appellant asserted that, in all of the above circumstances, he had a clear, positive belief that the complainant was consenting; he stated in evidence “There was no doubt about her consenting.”[25] It would follow that if it were possible that that was the state of his positive belief, the prosecution would be unable to prove that he was aware of a possibility that the complainant might not be consenting.
[25] T455.
The basis of the appeal
As stated above, the prosecution case on the rape charges was that the appellant was recklessly indifferent as to whether the complainant was consenting to sexual intercourse and his Honour convicted on that basis. The main ground of appeal, ground 1, was argued on the basis, as explained at the permission to appeal hearing, that in the light of all of the evidence and his Honour’s approach to the evidence generally and to particular aspects of it, it had not been safely proven that the appellant was recklessly indifferent.
Resolution of the appeal therefore requires careful consideration of the nature and strength of the prosecution evidence, the matters militating against acceptance of that evidence and the adequacy and correctness of his Honour’s reasons for judgment.
The reliability/credibility dichotomy
On a theoretical basis, it is easy to differentiate the concepts of reliability and credibility by reference to two hypothetical cases. First, if a complainant is abducted by a complete stranger and violently raped, there may be no issue as to credibility but a real question as to the reliability of her subsequent purported identification of the offender. Second, in contrast, if a complainant alleges that she was violently raped by a man she knew well, and the man’s defence is that consensual intercourse occurred in completely different, non-violent circumstances, the real issue will be credibility rather than reliability.
However, matters are often much more complex, with aspects of both reliability and credibility overlapping in relation to the same witness. Thus, in the first example above, the complainant may be so sure of the correctness of her identification and the rightness of her cause, that she comes to minimise the difficulties she in fact had in seeing her attacker’s face or exaggerates the degree of her certainty when she first identifies the person, thus raising questions as to credibility as well as reliability. Similarly, although the second example above may appear, on the surface, to constitute a contest in credibility only, there may also be underlying matters concerning reliability such as the effects of alcohol and/or drugs at the relevant time and a layer of possible unreliability will be therefore be superimposed on the credibility issues.
The reliability of the complainant

I consider that his Honour’s use of the evidence in this way has caused the trial to miscarry in a number of respects. My reasons follow.
His Honour’s assertion that the “evidence was unchallenged”
It would appear that his Honour placed weight on the fact that the complainant’s claim that she had never had sex before this event was “unchallenged”.
It should be noted in this regard that counsel for the appellant was placed in an extremely difficult position by the unexpected emergence of this evidence. He clearly had had no intention of cross-examining the complainant as to any previous sexual experience she may have had so as to suggest that it was therefore more likely that she would consent on this occasion. Equally, the prosecution had never intended to adduce evidence from the complainant of lack of previous sexual experience so as to suggest that it was therefore more likely that she would not consent on this occasion.
For either side to take such a course, an application for permission would have to be made pursuant to s 34L Evidence Act 1929.[60]In my view, such an application by either side would (or at least should) have stood no chance of being granted. In relation to an application by the defence, it would now be regarded as anathema if counsel were to try to cross-examine a complainant to show that she was generally sexually experienced so as to suggest a conclusion that she was therefore more likely to have consented to sexual intercourse on this particular occasion. In relation to an application by the prosecution, the definition in s 34L(7) of “sexual activities” includes “lack of sexual experience” and, in relation to a complainant of just under 17 years of age in the circumstances of this case, it can obviously be seen that it would have been completely inappropriate to either apply to adduce such evidence or to grant such an application were it to be made.
[60] 34L—Evidence in sexual cases generally
Therefore, it can be accepted that in the circumstances the solicitors for the appellant would have carried out no investigations as to the prior sexual activities of the complainant and counsel would simply have been in no position to know whether this assertion of virginity was true or untrue, let alone to “challenge” it. It is to be noted that the appellant had stated in his interview that he assumed (both at the time of sexual intercourse and when speaking to police) that the complainant was not a virgin and it seems that there would have been nothing in the depositions to alert his solicitors that a claim to virginity would be made. In all the circumstances then, it was very understandable that counsel for the appellant did not attempt to “challenge” the complainant’s assertion, but that does not mean that his Honour should have thereby have treated it as an immutable fact in the circumstances.
“A 16 year old virgin”
But more important than talk about “challenging” an assertion by the complainant that “I hadn’t had sex before” is the question of what that assertion actually means. It is not possible to know what the complainant may have actually meant by the statement “I hadn’t had sex before”. It is to be noted that the comment was made in the direct context of evidence of penile vaginal sexual intercourse and a question as to whether there was any pain associated therewith. In my view, this comment should not have been interpreted any wider than as a claim of not previously having had penile vaginal sexual intercourse. Such a claim is obviously more narrow than, and indeed very different to, a claim of no sexual experience, let alone a claim of no interest in sexual matters. There is no evidence one way or the other as to any of these things.
This matter of the complainant’s general sexuality should not have been touched upon at all. In my view, his Honour erred by proceeding by reference to an assumed general level of sexuality of the complainant encapsulated by the phrase “a 16 year old virgin”; I consider that it was unfair to the appellant to make any assumptions as to likely behaviour in a particular set of circumstances on the basis of a postulated stereo-typical “16 year old virgin” whose attitudes and habits might bear very little relation to those of the complainant.
“Attitude towards sexual relationships with an older man”
His Honour posed the “question” as to whether “a 16 year old virgin whose attitude towards sexual relationships with an older man was that it was disgusting would act in the sexually forward and aggressive manner that the defendant asserts.”
This composite question has a number of elements. In relation to the words “whose attitude towards sexual relationships with an older man was that it was disgusting”, I note that these words were in fact derived from the complainant’s evidence as to her attitude toward her 19 year old sister’s relationship with one “J”, a badminton official who was in his fifties. In such context, one must remember that the complainant admitted that she intensely disliked her sister; it may be that she disliked the man J as well. The point is that it is dangerously simplistic to assume that just because the complainant saw fit to criticise her sister’s conduct by reference to her sexual behaviour and other matters, it necessarily followed that the complainant truly held a fixed view that sexual relations with an older man was out of the question for herself in any circumstances.
As foreshadowed above, the most worrying aspect of his Honour’s approach is his characterisation of the complainant as “a 16 year old virgin” which concept his Honour then couples with an assumption that such a person would not act in a sexually “forward” manner on a given occasion. With the greatest of respect, I find this very unhelpful; it seems to me that it is every bit as dangerous as if a suggestion were to be made by a defence counsel in quite different circumstances that a woman who had had a great deal of previous sexual experience would act in a sexually forward manner on a given occasion.
The term “a 16 year old virgin” is inapt and disquieting, particularly in the light of the importance with which his Honour invested the matter as appears from the expanded version of this part of his judgment as follows:[61]
A question for me is whether a 16 year old virgin … would act in the sexually forward and aggressive manner that the defendant asserts. … it is directly relevant to the issues of the forward and sexually aggressive manner in which she is alleged to have conducted herself. I reject the suggestion that on this occasion she was sexually aggressive in the encounter.
[61] R v H, DPL [2011] SADC 71, [70]-[72].
The words “forward and sexually aggressive manner in which she is alleged to have conducted herself” undoubtedly refer to the appellant’s evidence that prior to having sexual intercourse in the bedroom, the complainant was vigorously masturbating herself, having placed saliva on her hand, and it was in that context that he went and got the baby oil. Further, he stated that she subsequently took hold of his penis and attempted to masturbate him.
His Honour apparently took the view that a “16 year old virgin” would not engage in such conduct. He rejected the evidence of the appellant that that is exactly what this complainant did do. This rejection of the appellant’s evidence was obviously a critical matter; if it were possible that the appellant’s evidence were correct, it would be very difficult to prove that the appellant was “aware of the possibility that the other person might not be consenting” in relation to vaginal sexual intercourse which took place in the same context and as to which it was admitted by the prosecution there was no vocal or physical sign of non-consent.
I conclude that when assessing the appellant’s evidence that the complainant had taken a sexual initiative, it was both unsafe and legally incorrect to place in the scales the unjustified, vague and general assumptions that his Honour did.
Conclusion – the appeal must be allowed
I consider that the verdicts on counts 1 and 3 must be set aside by reason of each of the above matters, or the cumulative effect thereof.
Disposition of the appeal – judgment of acquittal or re-trial?
Having regard to all of the circumstances, including but not limited to the fact that a re-trial would be necessary on the alternative charges of unlawful sexual intercourse even if judgment of acquittal were to be entered in relation to counts 1 and 3, I consider that the preferable exercise of discretion here is that there be an order for retrial on the present Information.
Proposed orders
I would therefore propose the following orders:
1.That the appeal be allowed and the convictions on counts 1 and 3 be set aside.
2.That there be a re-trial on the Information.

(1)In proceedings in which a person is charged with a sexual offence, no question may be asked or evidence admitted—
(a)     as to the sexual reputation of the alleged victim of the offence; or
(b)    except with the permission of the judge—as to the alleged victim’s sexual activities before or after the events of and surrounding the alleged offence (other than recent sexual activities with the accused).
(2)In deciding whether permission should be granted under ss (1)(b), the judge must give effect to the principle that alleged victims of sexual offences should not be subjected to unnecessary distress, humiliation or embarrassment through the asking of questions or admission of evidence of the kind referred to in that subsection, and must not grant permission unless satisfied that the evidence in respect of which permission is sought—
(a)     is of substantial probative value; or
(b)    would, in the circumstances, be likely materially to impair confidence in the reliability of the evidence of the alleged victim, and that its admission is required in the interests of justice.
(3)Permission must not be granted under ss (1)(b) authorising the asking of questions or the admission of evidence the purpose of which is only to raise inferences from some general disposition of the alleged victim.
…
(7)     In this section—
… “sexual activities” includes sexual experience or lack of sexual experience.

[2011] SASCFC 108

14 October 2011

Key Legal Topics

Areas of Law

Criminal Law

Evidence

Legal Concepts

Charge

Intention

Consent

Appeal

Sentencing