R v K a T

[2001] VSCA 182

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 252 of 2000

THE QUEEN

v.

K.A.T.

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JUDGES:	BROOKING, CHERNOV and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 October 2001
DATE OF JUDGMENT:	15 October 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 182

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Criminal law   -   No ground of appeal of any substance.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr O.P.Holdenson, Q.C.	K.Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr C.B. Boyce	McLennans

BROOKING, J.A.:

1. On 25 August 2000 the applicant, after a four-day trial, was convicted of the rape of his wife.  He applies for leave to appeal against that conviction.  He had faced a four-count presentment charging him with attempted anal rape (count 1), vaginal rape (count 2), anal rape (count 3) and false imprisonment (count 4).  He was convicted only on count 3, the count of anal rape.  There are four grounds of appeal, but really they come down to two grounds only, the first three grounds all relating to what was said at the trial about certain medical evidence and the fourth complaining that the verdicts are inconsistent, not in the technical sense but in the sense that the acquittals show a state of mind on the part of the jury inconsistent with the conviction.  The fifth ground - that the conviction is unsafe and unsatisfactory - does not seek a review of the evidence but relies on what is said to be merely the consequence of the acceptance of what is put forward under the previous grounds.

1. In view of the limited scope of the grounds of appeal the facts can be stated with unusual brevity.  The incidents took place on the night of 27 August 1998.  The applicant and his wife were still living together, but they were experiencing difficulties in their relationship, and during the previous month he had generally been sleeping in the spare bedroom.  His wife was six months pregnant.  According to her, after an argument, in the course of which he hit her, he dragged her into the bedroom, ripped off her pyjama top by tearing it open at the front, forced her onto the bed and removed her clothing and then attempted to rape her anally, but did not succeed in penetrating her.  Shortly after this, while she was still lying on her side, he penetrated her vaginally from behind, but his penis kept coming out of her vagina because she was resisting him.  It was then that he penetrated her anus completely and had anal intercourse with her for three or four minutes, finally ejaculating.

1. The applicant gave evidence.  He said that all the sexual activity between them that night had been very plainly with his wife's consent.  First they had had vaginal intercourse, facing each other, and this had not been preceded by any attempt at anal intercourse.  After the vaginal intercourse, they had had anal intercourse, during which he had ejaculated.  They had had anal intercourse on previous occasions.  Lubricants were within his reach but he did not use them on this occasion.

1. Thus the applicant denied the incident the subject of count 1, attempted anal rape, but admitted the vaginal penetration and anal penetration the subject of the two counts of rape.  As regards those counts, the issue was, as the judge told the jury, that of consent.  There was no issue about the applicant's state of mind with regard to consent.  In other words, the complainant's account and his own with regard to the giving or absence of consent were completely at odds:  on her account, it must have been entirely plain to him that she was not consenting, while on his account it was entirely plain to him that she was consenting.

1. The acquittal on the count of false imprisonment can, as is accepted, be put to one side at once.  On the morning of the third day of the trial, in the absence of the jury, the judge made it clear to the Crown prosecutor that in his opinion the case was really one of rape or nothing, that the alleged false imprisonment had on the Crown case been a technical one only and that the Crown prosecutor should in his final address tell the jury that the false imprisonment was only technical and that they should not trouble themselves with that count.  Consistently with this view, in his charge the judge virtually invited the jury to acquit on the false imprisonment charge, saying that it paled into insignificance when viewed against the background of the other counts.

1. As regards the sexual offences, the applicant's case was a difficult one.  He had made a long record of interview, in the course of which he had on numerous occasions said most plainly that there had been no sexual activity whatever on the night in question.  The Crown placed much reliance on these admittedly false denials.  In explanation of them the applicant put forward what I would have expected the jury to regard as a most unconvincing account of his having been intimidated by the police at a time when the tapes were being changed over.  This was not, he said, physical intimidation:  a policeman had said to him that he would get 20 years for rape and this had made him afraid to admit to any sexual activity.  In the light of the record of interview itself, the applicant's failure to complain about the behaviour of the police and his counsel's failure to raise the matter during the Crown case, the jury were in my view most unlikely to be at all impressed by his explanation.

1. Moreover, the case was one in which it might be thought that the applicant made certain admissions but only such as he considered were or might be necessitated by the existence of physical evidence.  For example, the jury may well have thought that his statement in the record of interview that his wife might have had some bruises on her arms from his restraining her was made because of his fear that a medical examination on the morning after the incidents showed bruising there.  The jury may have thought that the admission of this possibility in the record of interview was what constrained the applicant to say in his evidence that his wife might have had bruises where he grabbed her by the arms, at which point he went on to refer to what he had said in the record of interview.  The jury may well have thought that he admitted that he had ripped off his wife's pyjama top because the police found it and the torn-off buttons and took photographs.  He said in the record of interview that he did this in order to scare his wife, a position which he seemed to maintain in his evidence at the trial.  This may well have struck the jury as a very improbable explanation.  The jury may well have thought that throughout his evidence the applicant showed a keen awareness of the state of the medical evidence and that his argumentative reliance on it was less impressive than straightforward denials of his wife's allegations would have been.  They may very well have gained the impression that both the applicant and his counsel - not Mr Boyce, who appeared before us - were not approaching the case in a straightforward way but attempting to take technical points in the absence of a more substantial defence on the merits.  I shall return to this in dealing with the first three grounds.  I have read the whole of the evidence of the complainant and the applicant.  Of course we must bear in mind that we did not see or hear them, but I must say that the reading of the material gives me the impression that the jury were much more likely to be impressed by the complainant's version than that of the applicant.  Her physical injuries were, it is true, limited.  It was her evidence that he had grabbed her by the top of the arms and dragged her towards the bedroom, and I have mentioned that he himself admitted that he might have bruised her arms.  There was no medical evidence of any bruising there, but there was medical evidence of a tender swelling on the right parietal area of her scalp, which the jury might have thought supported her case of blows to the head.  Then there was the evidence of the anal fissure.

1. In all the circumstances I think it highly unlikely that the jury acquitted on the count of attempted anal rape (count 1) or the count of vaginal rape (count 2) because they disbelieved the complainant.  Indeed, it is accepted by Mr Boyce that the acquittal on count 1 could be explained on the basis that on the complainant's own evidence the jury may have had a reasonable doubt about the occurrence of the act forming the basis of that count.  But they could have had no such doubt, he submitted, about the act forming the basis of count 2.  That is so.  But there is another perfectly acceptable explanation of the acquittal on count 2 and, for that matter, count 1 also, even assuming that the jury were satisfied about the occurrence of the act forming the basis of count 1.  The authorities accept that in a situation like the present the Court is entitled to consider whether the jury might have taken a merciful view.  In my opinion the obvious explanation of these verdicts is that the jury took a commonsense or merciful approach by saying to themselves that what the applicant had set out to do, and what he had actually done, was to rape his wife anally and that this rape had taken some little time and caused her considerable pain - which required treatment- and injury and ended in his ejaculating.  The acts forming all three counts were alleged to have occurred in quick succession.  The jury may very well have thought that an unsuccessful attempt at anal penetration very shortly before the actual anal rape really added nothing to the applicant's criminality and they may well have taken the view that the vaginal penetration, fleeting as it was, added little to his criminality and have chosen to convict on the major count only.

1. It is unnecessary to say anything more about the possibility that the jury were not satisfied of the attempted anal rape, a possibility admitted by Mr Boyce, or about a different possibility, namely, that the jury gave the applicant the benefit of the doubt with regard to the vaginal rape, thinking that those penetrations may have been unintentional in the sense that anal penetration was at all times being sought. 

1. As regards the matter of consent, the salient fact here was the unlubricated anal intercourse resulting in the undoubted injury.

1. I think there is no substance in this attack on the verdict, and I turn to the first three grounds.  There is similarly no substance in these.  The applicant signed a document according to which he admitted "the following facts pursuant to Section 149A of the Evidence Act, 1958."  The first of these "facts" was stated to be "The evidence of Morris Solomon Odell as deposed to in his statement dated the 1st day of September 1998, a copy of which is attached to this Notice".  At the trial the effect of this admission seems to have been taken to be, not that the facts contained in the attached statement were all taken to be admitted, but simply that the attached statement became admissible as evidence of the truth of what was stated in it.  We need not consider the legal effect of what was done in this regard.  According to Dr Odell's statement, he examined the complainant at 10.45 a.m. on 28 August 1998 and:

"The examination of the anus revealed a posterior fissure which was extremely tender and an area of tender swelling representing bruising at the anterior margin of the anal opening.  An internal examination was not conducted because of pain and spasm.

Following the examination, [Ms T] was provided with a prescription for some anal medication for the pain."

1. The complainant's evidence was that on previous occasions the applicant had had anal intercourse with her, that they had always used lubrication but that on the night of the rape he had used none.

1. The written admission and the statement of Dr Odell were read to the jury.  The applicant was cross-examined about this evidence and in the course of his examination the Crown prosecutor interpolated that a fissure was a split.  It is as a result of this interpolation that the point taken in grounds 1 to 3 arises, and I feel bound to say that it is an idle point.  The immediately ensuing discussion took place in the presence of the jury and the judge said that he was going to tell the jury that the medical dictionaries - I think his Honour at some stage mentioned also the Oxford Dictionary - showed that an anal fissure was a break in the skin lining the anal canal.  In due course the judge charged the jury that the medical definition of an anal fissure was a break in the skin lining the anal canal, and no exception was taken to this.  I see no reason why the judge should not have told the jury what he did, and I am disposed to think that recourse to an ordinary dictionary, as opposed to a medical dictionary, would have had the same result (as I think the judge himself considered), but this does not matter.  For reference to the transcript shows that in the end, after much unsatisfactory discussion in which counsel for the accused sought to avoid taking up a position, the stage was reached at which he accepted that the jury might properly be given the definition which they were in fact given.  This discussion occupies a number of pages in the transcript and I need not summarise it.  I think it shows, and would have been regarded by the jury to the extent to which they were present as showing, an unmeritorious attempt by the defence to profit from a supposed technical point in the absence of the doctor as a witness.

1. Counsel for the applicant changed his ground in the course of the discussion and the ensuing cross-examination by suggesting that the medical report did not show that the injury was a recent one.  This was, I think, a foolish suggestion:  the passage already cited refers to extreme tenderness, to tender swelling, to her pain and spasm as causing the doctor not to make an internal examination and to the prescription of anal medication for the pain.  At one stage counsel shifted his ground by appearing to intimate that his complaint was not that the report did not suggest recent injury but that there was no photograph or measurement of the fissure.  In the course of the discussion the judge said, understandably, that he would favourably consider an application by the Crown for leave to reopen its case by calling the

doctor and that if the position taken up by the defence in final submissions was unfair the discharge of the jury might even have to be considered.  Part of this discussion took place in the absence of the jury after the defence had closed its case.  Counsel for the defence continued to change his ground.  In the end, however, he stated unequivocally that he accepted that the Crown was entitled to rely on the medical dictionary definition of an anal fissure as given by the judge.  He said also that his real concern, as regards the medical report, was to bring out the fact that it contained little to support the complainant's evidence that she had been struck and manhandled.  He said that he accepted that the Crown could rely on the medical report as supporting the view that on the night of the incidents anal intercourse which was without a lubricant had taken place.

1. None of the grounds of appeal has any substance and the application should be dismissed.

CHERNOV, J.A.: 

1. I agree.

VINCENT, J.A.: 

1. I agree that this application should be dismissed, for the reasons advanced by the learned presiding judge.  In particular, I would like to indicate my concurrence in the view expressed by him concerning the reasoning processes which the jury may reasonably have adopted in this case.

BROOKING, J.A.: 

1. The application is dismissed.

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