R v James Daniel Hendy No. SCCRM 96/39 Judgment No. 5639 Number of Pages 6 Criminal Law

[1996] SASC 5639

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL DOYLE(2) CJ, MILLHOUSE(1) AND WILLIAMS(3) JJ

CWDS
Criminal law - particular offences - offences against the person - sexual offences - rape - proof and evidence - appeal against conviction of two counts of rape - both appellant and complainant physically handicapped. Prior indecent acts against complainant admissible shewing circumstances of offences without which events would be unintelligible - sufficient warning given to jury. Appeal court cautions about setting aside verdicts of guilt adequately supported by evidence because difficult to reconcile with verdict of not guilty on other charges. R v Etheringlon (1983) 32 SASR 230; Harriman v R (1988-1989) 167 CLR 590; R v Dolan (1992) 58 SASR 501; R v Kirkman (1986-1987) 44 SASR 591, applied.

HRNG ADELAIDE, 24 May 1996 #DATE 29:5:1996 #ADD 4:7:1996

Counsel for appellant:     Mr M Gray QC, with him Ms G Brown

Solicitors for appellant:    Olson and Co

Counsel for respondent:     Mr Brebner, with him Ms J Mcgrath

Solicitors for respondent: DPP (SA)

ORDER
Appeal dismissed.

JUDGE1 MILLHOUSE J This is an appeal from a conviction, on two counts, of rape. The appellant had been charged with four counts, all acts allegedly occurring within 12 hours, but was convicted only on counts 2 and 3.

2. The appellant and complainant, both in their 20s, are physically handicapped. The complainant, I think, is far more handicapped than the appellant. She is not able to communicate by speech: at the trial she used a computer and had an interpreter. She is almost helpless and needs assistance to move about, go to the lavatory, have a shower and so on. Even with the appellant's help, when they were living together, a care-giver came for most of every day to look after her. I do not know the extent of the appellant's disabilities: he does, however, relevantly, suffer from a condition of retractable testes which, he said, (there was confirmation of this from a medical practitioner) makes it painful to have intercourse more than twice in 24 hours.

3. The two had been living together for more than four years up to the time of the incident the subject of the charges: they have a child. The complainant said that from some time after St Valentine's Day 1993 the appellant had come to force her many times to have sexual intercourse with him against her will: against her protests, for it hurt.

4. The culmination came on 12 and 13 February 1995 with what she claimed to have been five acts of intercourse between late afternoon/early evening on 12 February - they had had a trip to Clare that day and the first act was after they came home - and 9 to 9.30 on the morning of the 13th. The four counts relate to all but the first of the acts. The complainant told the Crown of the first act only a few days before trial, well after the Information had been laid.

5. Mr Malcolm Gray QC who appeared for the appellant with Mrs G Brown, argued three points.

6. The first concerned the evidence, not only of the first act of rape, that in the late afternoon/early evening, but also of the history of the appellant's conduct, sexually, towards the appellant in the two years or so preceding. Mr Gray argued that this was evidence of the appellant's propensity to rape the complainant and as such inadmissible: to be admissible it had to be probative in some way of a circumstance relevant to the determination of the charges. The evidence was not admissible to explain something such as lack of complaint, because the complainant said she resisted to the best of her ability and made her opposition, lack of consent, known to the appellant. The only concession Mr Gray made was that her going back to sleep and not doing something, such as rolling out of bed or something else to get away from the complainant, would be unexplained to the jury if the evidence were not led. He said that was a very small aspect upon which to call "this horrendously prejudicial evidence".

7. Mr Peter Brebner, for the respondent Crown, argued, contra, that it was background evidence shewing the relationship between the two: unless it had been led the jury would have been entirely at a loss to understand why the incident had suddenly happened and why the appellant had not done more to avoid it going on.

8. During the time of the four incidents charged, the couple were in bed. After each incident (which the complainant resisted as best she could with her handicaps, by closing her legs and so on) the complainant turned over and went back to sleep. How, Mr Brebner put, could the jury possibly understand this situation without knowing the history of the relationship, that she was used to this sort of thing?

9. What had been happening all eventually came out when, later on the 13th February, the care worker saw injury in the vicinity of the vagina and the complainant told her what had been going on. The complainant left the appellant that day.

10. I do not think, despite his persuasiveness and persistence, that Mr Gray's argument on this point can succeed.

11. In The Queen v Etherington (32 SASR 230) Walters J wrote a judgment with which I agreed. The accused had been charged with unlawful sexual intercourse with a girl under twelve: the trial judge admitted evidence of previous acts of indecent interference. Of this Walters J said (at p.235):-
    " ... I think the evidence of the prior indecent acts was
    admissible on the ground that it formed part of the
    circumstances of the offence charged. Without evidence of
    those acts, the evidence of the prosecutrix relating to the
    act said to constitute the alleged offence `could not be
    truly understood and, isolated from (the evidence of the
    prior indecent acts), could only be presented as an unreal
    and not very intelligible event' (O'Leary v. The King, per
    Dixon J (as he then was), at p 577). As it seems to me,
    the evidence in question showed what amounted to something
    of a continuous transaction, namely, the defilement of the
    prosecutrix by the appellant on a number of occasions since
    she was eight or nine years old, and it served to explain
    why she continued to submit to him and why he was able to
commit his indecent acts upon her on the occasion charged." McHugh J in Harriman v The Queen (167 CLR 590 at 629 and 631) approved Etherington's Case.

12. King CJ in R v Dolan (58 SASR 501 at 503), without referring to Etherington, put the same proposition in this way:-
    " ... I assume that it" (the evidence) "was admitted as
    indicating the relationship between the appellant and the
    alleged victim and as establishing the true context and
    setting in which the offences were alleged to have occurred.
    I consider that it was properly admissible on that basis.
    It would not be possible to properly appreciate and evaluate
    the evidence of the alleged victim as to the incidents
    forming the subject of the counts without the knowledge that
    they occurred in the setting of a course of sexual conduct
    occurring over a period of time. The occurrence of the
    course of conduct was a necessary part of the alleged
    victim's story and her account of the incidents which were
    the subject of the charges, could only be evaluated in that
    context."

13. Earlier on the same page in Dolan's Case, King CJ had pointed out that, "The learned trial judge did not - direct the jury as to the use which they could make, and the use which they could not make of the evidence of the course of conduct."

14. At this trial the learned trial judge did do that:-
    "If you accept the prosecution evidence, the accused, Jamie
    Hendy, was also guilty of many other prior offences of rape
    on Lena Polo. However, he is not charged with any such
    earlier offences. The evidence about these alleged earlier
    rapes has been put before you to give you a proper
    background picture, insofar as you accept it, about the
    circumstances leading up to the four counts which you are
    asked to determine. What you must not do is to reason that
    if it is proved that he had raped her previously therefore
    he is automatically guilty of the four rapes of which he is
    charged, or is he the sort of person that is likely to have
    raped Lena on 12 and 13 February because he had raped her
    before, and therefore he must have raped her on that
    evening."

15. Despite Mr Gray's strong arguments I conclude that the evidence of the appellant's course of conduct up to and including the incident soon after they returned from Clare was properly admitted for the reasons advanced by Mr Brebner and that the trial judge properly explained to the jury the use to which they could put it as well as how they must not use it.

16. Mr Gray's next point was that the Crown should have disclosed the Victim Impact Statement to the defence before the trial. Mr Brebner acknowledged that the Crown should have done so and there is no doubt about it. It would have been unusual but warranted in the circumstances.

17. The complainant said in evidence that the appellant had squeezed her chest during one or two of the acts charged as rape and this had caused injury. She was cross-examined on this. For example:-
    "Q. Can you explain to me how he pushed you on the chest,
    tell us how that happened. Perhaps you could use your
    communicator.
    A. He had his over my back. (THROUGH TRANSLATOR).
    Q. What did he have over your back.
    A. His arm over my body then he pulled his arm in towards
    himself hard. (THROUGH TRANSLATOR).
    Q. I suggest that's rubbish, he never pushed or pulled on
    your chest at all, did he, on this occasion.
    A. It isn't rubbish, he did do it. (THROUGH TRANSLATOR).

18. In the Victim Impact Statement is this notation:-
    "Chest injury from being sat on. Severe pelvic pain - so
    that moving legs was extremely painful."

19. The complainant did not, in evidence, ever suggest that the appellant "sat on" her. Obviously, had the accused's counsel known of this notation, the complainant would have been cross-examined on it.

20. Whether it would have made any difference is the question. Mr Gray argued that it may have made such a difference that non-disclosure of the information meant the trial had miscarried. Therefore the convictions should be set aside.

21. Mr Brebner, contra, said, correctly, that there were a number of conflicts in the complainant's evidence: this would have been just one more: it is only a detail: it is quite unlikely that this straw would have been the final one to break the camel's back.

22. After some hesitation I think this is so. In the context of the trial it would have been a small point and not going directly to guilt or otherwise. The complainant was consistent about injury to her chest: the discrepancy was only about how it was caused.

23. The point fails.

24. Finally Mr Gray argued that finding the appellant guilty on only two counts out of four proved the jury could not have properly distinguished those two acts from the appellant's general course of conduct.

25. The learned judge had directed that the jury had to
    "consider each count separately and to decide if his guilt
    on that particular count is proved .. on the evidence ...
    The mere fact that you convict or acquit on any particular
    count does not mean that you either have to convict or
    acquit on any other count."

26. The clue to the verdicts may well be in this passage:-
    "The offence of rape has three elements in law, and the
    prosecution must prove each of those three elements to you
    before you can convict on it. If on any count one of these
    elements is not proved, then you must acquit on that count.
    The first element is that the accused had sexual intercourse
    with the victim. It seems that that is not disputed for
    counts two and three, but is in dispute on counts one and
    four." He then went on to explain the other elements of the crime.

27. The last sentence is significant. "It seems that that" (intercourse) "is not disputed for counts two and three but is in dispute on counts one and four." The jury may simply have played it safe and convicted only of the two incidents of intercourse which the appellant acknowledged.

28. I should mention the discrepancy in the evidence of complainant and appellant about the time of the act, the subject of count two, because Mr Gray made much of it. The complainant put it at 2.00am: she was definite about that because she had noticed the time on the television. The appellant put it at not long after midnight, soon after he came to bed. Really the difference between these two estimates is small enough not, I think, to matter - certainly not to be significant. Complainant and appellant must have been talking of the same incident, that relating to count two. The act, the subject of the first count - denied by the appellant - had been, the complainant said, at ten pm: the act, the subject of the third count, at eight o'clock in the morning.

29. During argument I suggested, in a clumsy way, that maybe what I called "the human factor" was involved: the jury may have said, "Enough is enough" and convicted only on two counts not on four. Mr Gray would have none of it.

30. Yet King CJ put the same point in a considered way in R v Kirkman (44 SASR 591 at 593):-
    " ... juries cannot always be expected to act in accordance
    with strictly logical considerations and in accordance with
    the strict principles of the law which are explained to
    them, and courts, I think, must be very cautious about
    setting aside verdicts which are adequately supported by the
    evidence simply because a judge might find it difficult to
    reconcile them with the verdicts which had been reached by
    the jury with respect to other charges. Sometimes juries
    apply in favour of an accused what might be described as
    their innate sense of fairness and justice in place of the
    strict principles of law. Sometimes it appears to a jury
    that although a number of counts have been alleged against
    an accused person, and have been technically proved, justice
    is sufficiently met by convicting him of less than the full
    number. This may not be logically justifiable in the eyes
    of a judge, but I think it would be idle to close our eyes
    to the fact that it is part and parcel of the system of
    administration of justice by juries. Appellate courts
    therefore should not be too ready to jump to the conclusion
    that because a verdict of guilty cannot be reconciled as a
    matter of strict logic with a verdict of not guilty with
    respect to another count, the jury acted unreasonably in
    arriving at the verdict of guilty. A jury may be quite
    reasonable in arriving at the verdict of guilty. That
    verdict may be amply supported by the evidence. They may
    decide for reasons of their own, unrelated to the strict
    logic of the situation, that they are unwilling to arrive at
    a verdict of guilty on another count in the information."

31. That may be the explanation for conviction only on the two counts. Whether or not it is, we should be "very cautious about setting aside verdicts which are adequately supported by the evidence." I certainly would not do so in this case.

32. Mr Gray's third point fails, too.

33. I suggest dismissing the appeal.

JUDGE2 DOYLE CJ I agree that the appeal against conviction should be dismissed, for the reasons given by Millhouse J, to which reasons I have nothing to add.

JUDGE3 WILLIAMS J I agree.