R v Lubke - [2007] SASC 343

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v LUBKE
[2007] SASC 343
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice White and The Honourable Justice David)
26 September 2007
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT - WHERE APPEAL DISMISSED
Appeal against conviction - appellant tried by jury on one count of attempted rape and one count of indecent assault - both counts related to the same complainant and occurred contemporaneously - jury found the appellant guilty of attempted rape but not guilty of indecent assault - whether verdicts inconsistent - whether guilty verdict unsafe and unsatisfactory - whether jury should have entertained a reasonable doubt - held: no basis on which to interfere with the verdicts.
Criminal Law Consolidation Act 1935 s 48, s 56, s 85B(1), s 270A; Summary Offences Act 1953 s 62(1)(a)(i), referred to.
Chamberlain v The Queen (No 2) (1984) 153 CLR 618; Chidiac v The Queen (1991) 171 CLR 432; Hayes v The Queen (1973) 47 ALJR 603; M v The Queen (1994) 181 CLR 487, applied.
Jones v The Queen (1999) 191 CLR 439, considered.

PROCEDURE - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - PRODUCTION AND INSPECTION - GROUNDS FOR RESISTING PRODUCTION - PUBLIC INTEREST IMMUNITY
Trial Judge ruled that subpoenaed documents disclosed communications protected by public interest immunity, pursuant to ss 67E and 67F of the Evidence Act 1929 - whether trial Judge erred in ruling documents to be protected communications in the absence of an application to that effect having been made by the institution from which the documents were subpoenaed - whether trial Judge erred in inspecting the documents to determine whether they contained protected communications - whether defence counsel should have been permitted to inspect the documents - held: documents properly ruled to be protected communications.
Evidence Act 1929 s 67D, s 67E, s 67F, referred to.
Question of Law Reserved (No 1 of 2000) (2000) 77 SASR 345, applied.

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION
Whether trial Judge erred in directing the jury in terms of recent invention - held: directions appropriate having regard to the summing-up as a whole
Held: appeal dismissed.

R v LUBKE
[2007] SASC 343
Court of Criminal Appeal: Sulan, White and David JJ

SULAN J: The appellant, Wayne Scott Lubke, was charged with attempted rape and indecent assault of SF, a 19-year-old female, on 14 November 2004. He was also charged and pleaded guilty to offences of causing a bushfire, contrary to s 85B(1) of the Criminal Law Consolidation Act 1935, and making a false report to the police, contrary to s 62(1)(a)(i) of the Summary Offences Act 1953.
The appellant was convicted by a jury of the charge of attempted rape and acquitted of the charge of indecent assault.
The appellant appeals against the conviction. The appellant contends that the verdict of the jury is unsafe and unsatisfactory. He further submits that the verdicts are inconsistent. It is therefore necessary to consider the evidence at trial in detail.
The evidence at trial
SF was 19 years of age at the time that the offence was committed. She attended the Teen Challenge Church on Waymouth Street in Adelaide on Sundays. She had previously participated in the Teen Challenge Rehabilitation Program for approximately six months because she was addicted to paint sniffing. She lived at Para Hills and she travelled to the city each Sunday by bus.
SF told the jury that she had been paint sniffing since she was 15 years of age. Despite completing the rehabilitation program she continued to sniff paint.
On 14 November 2004, SF and a friend, Ms Virgo, attended the Teen Challenge Church. They arrived at approximately 10:00 am. SF had been sniffing paint the previous night and she sniffed paint again that morning as they were travelling to the church by bus.
Whilst she and Ms Virgo were in the church, the appellant, whom she had never met, came into the church. They spoke and eventually the two young women and the appellant went outside to smoke a cigarette. Whilst they were outside, it began raining. The appellant asked SF if she would like to go to his car so that they would not have to stand in the rain. The three walked to his car. SF sat in the front passenger seat and Ms Virgo sat in the back. Earlier, SF had told the appellant that she had a problem with paint sniffing. When they were in the car, she sniffed paint from a container she carried in her backpack.
At about 11:30 am, SF told the appellant that her friend, Ms Virgo, had to leave because her father was picking her up from Waymouth Street. The appellant said he would drive them back to Waymouth Street. The appellant stopped at the location where Ms Virgo’s father was to pick her up and Ms Virgo alighted. SF said to Ms Virgo that she would stay in the car and find her own way home later.
Ms Virgo confirmed the evidence of SF about the events leading up to SF, the appellant and Ms Virgo leaving the church and going to the appellant’s car. She said that she was to meet her father at the corner of Waymouth and King William Streets and she walked from the car to that point where she was met by her father at about 11:30 am. In that respect, her evidence differed from that of SF and that of the appellant. Nothing significant flows from that inconsistency.
Ms Virgo’s father gave evidence that he had arranged to collect his daughter from King William Street, at the corner of Waymouth Street, at 11:30 am. He arrived at about 11.30 am. His daughter was alone and waiting for him.
SF told the Court that, after dropping off Ms Virgo, she asked the appellant to take her back to the church, but he said he needed to do a few things before taking her back. According to SF, she asked him on a number of occasions to take her back to the church, but he did not. He kept driving. SF received a call on her mobile telephone from her boyfriend, who had arrived at the church. When she told him that she was in a car, her boyfriend became angry. She told the appellant that she thought her boyfriend might have been cheating on her. The appellant said she deserved something better. SF repeated her request that the appellant take her back to the church. He again refused, saying that he still needed to do a few things. This evidence was contradicted by the appellant, whose evidence I will relate later in these reasons.
At some stage, the appellant stopped at the Coles Supermarket on Grote Street in Adelaide. SF remained in the car whilst the appellant went into the supermarket. She sniffed paint again. After about five minutes the appellant returned. According to SF, the appellant bought a can of drink known as ‘Red Bull’. He drank half the can and SF drank the other half. According to SF, the appellant then drove around the city streets. She continued to ask him to take her back to the church because her boyfriend was waiting for her. The appellant agreed that he had purchased a drink at the supermarket but denied that he had driven around the city streets. He denied that SF asked him at that stage to take her back to the church.
She said that, after driving around the streets in the city, the next thing she recalls was waking up in the appellant’s lap. She said that she had a headache and felt like she had been punched in the face. She also had a sore nose. She said she had suffered headaches in the past when she stopped sniffing paint. She said that when she woke up in the appellant’s lap, his track pants were pulled down to mid-thigh level and he was gripping her neck and pushing her head down towards his penis. She said she could not see his penis but could feel it around her mouth. She said that his penis was touching her on her face and around her mouth. She closed her mouth. She said she could not see his penis because she was closing her eyes and moving her head, trying to free herself from the appellant’s grip. She was unable to tell whether his penis was erect. The appellant was holding her by the neck, strangling her with his left hand and holding the steering wheel with his right hand. It was difficult to breathe. Every time she moved her head, he tightened his grip.
The complainant was wearing blue jeans and a white jumper with a hood. Under the jumper, she was wearing a top and a bra. SF said that she realised that her left arm was out of her jumper, hanging loose. At some stage, she felt the appellant’s elbow on the back of her neck. The appellant reached over, grabbed her backpack, which was on the floor of the front passenger seat, and threw it on to the rear seat. She said it was about five minutes after she awoke that he threw the backpack on to the back seat.
The appellant said to her that if she did not have sex with him he would rape and murder her. He put his right hand in the opening of her jumper and started to feel her left breast. He said he just wanted to touch her. He was still holding her neck at that stage. The car was still moving at that point. He rubbed her breast up and down about three times. He then put his hand back on the steering wheel.
SF gave evidence that she said to the appellant that she would have sex with him if he permitted her to have a sniff of paint first. At that stage, her seatbelt was unbuckled. It had been unbuckled whilst she was asleep. She put her jumper back on, buckled her seatbelt and reached into the back to grab her backpack. At that point she looked out of the car and could see a Kentucky Fried Chicken (‘KFC’) outlet ahead, which she recognised as being near the Henley Beach Road and Marion Road intersection. She pretended to look for the paint in her backpack. She unbuckled her seatbelt. There were traffic lights ahead. They were travelling in the middle lane. As the car approached the lights, she reached for the passenger door to try to get out. The appellant grabbed her neck again and pulled her down towards his legs. She began to scream. She said that she used all her energy and managed to open the door and jump out. At that stage, the car was stationary at the traffic lights. She ran towards the KFC. She noticed the car had driven off. The car hit a pole and another car and then drove down the left side of the road away from her.
A number of people assisted her. Eventually, police and paramedics arrived. The police observed marks around SF’s neck.
SF agreed in cross-examination that she received a phone call from her boyfriend when they were driving along Henley Beach Road. This was not consistent with her earlier evidence. It was suggested to her that she had been drifting in and out of sleep or consciousness and it was after the phone call from her boyfriend that she said that she wanted to return to the church. It was further suggested in cross-examination that she had a panic attack because the appellant did not turn back immediately. It was suggested to her that she was attempting to hit the appellant, who was trying to stop her by grabbing her around the neck. She threatened to call ‘rape’ and, when he let her go, she screamed, “Rape”. She denied all of the suggestions.
In cross-examination SF said the appellant was gripping her by the neck and the throat with his left hand because she was moving her head from side to side to get away from his grip.
It was put to her:
Q.There was a point, on your evidence, was there not, when he has reached over with his right hand which had been holding the steering wheel and he has grabbed the backpack and thrown it in the back.
A.Yes.
Q.There is a point at which nothing is steering the car, is that right.
A.Yes.
David Hewitt, am employee of the Coles supermarket on Grote Street, gave evidence that, according to the security video which was operating in the store at the time, the appellant was present in the store at 11:33 am on 14 November 2004.
Mark Toye was driving west along Henley Beach Road on the morning of 14 November 2004. He stopped at the South Road intersection. His attention was drawn to a Datsun motor vehicle that had pulled up in the bus lane on his left. He noticed a male driver and a passenger. After the lights changed, he moved forward. The Datsun accelerated and cut in front of his car. He continued driving for about two minutes and stopped at a red light at the Marion Road intersection.
When he stopped at that intersection, he noticed the Datsun behind his car, one car back from the lights in the left-hand lane. He heard a screeching sound behind his car to the left. He observed the passenger in the Datsun trying to get out of the car. He heard screaming. He noticed the car reverse, turn left and hit another motor vehicle which was also turning left. The car moved forward, jumped the kerb and hit a post. The passenger managed to jump out of the car before the car moved off. The driver drove off south-bound along Marion Road. Mr Toye parked his car and phoned the police.
Tangea Steansall was a passenger in Mr Toye’s car. She observed the Datsun at the intersection of Henley Beach and South Roads. She saw it again at the Marion Road and Henley Beach Road intersection. It was in the left-hand lane, one car behind the car in which she was travelling. She heard screaming and she saw a girl hanging out of the driver’s window of the Datsun. She observed the driver trying to push her back into the car. There was a slip lane for vehicles intending to turn left. The driver of the Datsun attempted to manoeuvre the car into the left turning lane. He had to reverse. She saw the registration number of the car and wrote it down. The car eventually took off. She saw a girl on the side of the street. She had observed the Datsun collide with another car as it was attempting to turn left. Ms Steansall attended to the complainant, who was distressed. Shortly after, the police arrived.
Nelson Varcoe was driving a Magna motor vehicle which was involved in the collision with the appellant’s car. His car was hit whilst he was turning left from Henley Beach Road on to Marion Road. He heard a woman’s voice calling what sounded to him like, “Rape, rape”. After his car was hit, he alighted and walked back towards the Datsun, which manoeuvred around his car and drove away. He could hear the young woman calling out, “Rape”. He observed her on the footpath. She was shaken. She was repeating, “Rape, rape, rape”. She said, “I’ve been told about strangers, going in strangers’ cars”. She said to Mr Varcoe, “He picked me up at the church and offered me a ride home”. She said the driver had said to her, “All I want is to have sex and then you can go”.
Constable Malpas was the first police officer to attend at the scene. He had been despatched to the scene at 11:57 am. He arrived at the scene at about 12:12 pm and spoke to SF, who said that the person with whom she had been in the car had been trying to force her head into his lap. Constable Buck also attended the scene of the accident. He saw SF, who appeared upset. He attended at the appellant’s premises the following day. He observed some clothing and a pair of sneakers which had recently been washed. A pair of socks had been discarded in the rubbish bin.
Professor White, a pharmacologist, gave expert evidence that sniffing paint has the predominant effect of relaxation and sedation. Initially there is some euphoria and excitation, but that is short‑lived. The person then becomes mildly to heavily sedated and may show signs of intoxication, such as uncoordinated movements, speech impairment and balance problems. The extent to which a person is affected depends on how much they have inhaled. A person with greater tolerance for paint sniffing may be more resistant to these effects. Sometimes people exhibit psychotic‑like symptoms - for example, hallucinations, false beliefs and delusions - and they may act strangely. People can become unconscious as a result of inhaling paint. There can be a change in blood pressure that causes the person to faint. Fainting can be for a short period. If a person is able to give a coherent history of the activities in which they have engaged, the effect of sniffing paint might be relatively low.
The appellant gave evidence and admitted going to his car with SF and her friend. He said that the three sat in the car for a short time. Ms Virgo said she needed to meet her father. He drove her to where she was to meet her father. He said he then drove on to Grote Street and went directly to the Coles supermarket. SF was sniffing paint. He purchased a Sprite energy drink. He returned to the car and drank part of it. SF drank the rest. They left the supermarket and drove along Grote Street. SF was visibly affected by the paint fumes. She seemed intoxicated and her speech was slurred. She said she did not want to go back to the church, that she wanted to drive around for a while. That is how it came about that he was driving along Henley Beach Road. He denied that he had driven around the Adelaide streets, as described by SF. He said SF told him that she needed to collect some clothes from her mother’s house. She talked about her boyfriend. She complained about him having sex with other people. She said that she thought it was her right to have sex with other people as well. At that point she suggested that she and the appellant have sex. He said he did not think that was a good idea. She said that she had to be back at the church at one o’clock. The appellant said that he was filling in time for her. Whilst they were driving along Henley Beach Road, between South Road and Marion Road, SF received a telephone call from her boyfriend. She seemed visibly distressed and she began ‘chroming’ (sniffing paint) vigorously. She emptied one can. She started on another can. She demanded that he return her to the church. He informed her that he would take her back to the church as soon as he could turn around and head back to the city. As they were approaching the intersection of Henley Beach and Marion Roads, she became abusive and started to ‘lash out’ at him. He was attempting to drive the car. He put her in a headlock to try to subdue her. She kept screaming and was grabbing at the gearstick. She demanded that he let go or she was going to cry, “Rape”. By that time they had stopped at the traffic lights at Marion Road. As he let her go, she climbed across the top of him, ‘thrashing’ at him, trying to leap out of the window and screaming, “Rape”. He panicked and tried to move out of the lane of traffic and into the slip lane so he could pull over and let her out. As he was moving the car, she opened the door and tried to jump out. He grabbed her by the neck with his left hand. He was angry at that stage. He was trying to manoeuvre the car into the left-hand lane. His car collided with another car and then with a street sign. He released his grip on SF and she, more or less, fell on to the footpath. He panicked. He drove his car to the Seaford area and burnt it. He then reported the car as having been stolen.

It was not disputed that the appellant telephoned the police at 12:48 pm on 14 November 2004 to report his car as having been stolen. He said it had been stolen from his home. It was not disputed that the appellant had deliberately set his car alight. It was later discovered at Noarlunga, south of Adelaide, in bushland.
The appellant denied the act of trying to force SF’s mouth on to his penis. He denied the act of touching her breast. He agreed that he had lied to the police about his car being stolen. He admitted that he had provided the police with an incorrect address. He agreed that he had destroyed his car. He said he destroyed his car, not to avoid it being examined by the police, but because it had been involved in a collision. He said that the car was damaged beyond repair. He agreed that he washed or disposed of every part of his clothing, including his shoes, but denied that it was part of a plan to try and destroy evidence that SF had been in his car. He said he washed his clothes and sneakers because they smelled. He denied that he was trying to distance himself from the offending.
The appeal – the verdicts
The primary complaint of the appellant is that the verdict of the jury is unsafe and unsatisfactory. The appellant’s argument rests on two propositions. First, the appellant submits the complainant’s evidence was so unsatisfactory that no reasonable jury could have relied on it. Secondly, the appellant contends that the verdicts are inconsistent. Although the appellant’s counsel seeks to argue the two propositions independently of one another, there is an overlap in his argument.
In submitting that the verdict on count one is unsafe and unsatisfactory, Mr Mead, counsel for the appellant, points to a number of features of the evidence of the complainant, which he contends demonstrate that her evidence is so unreliable that the conviction is rendered unsafe.
Before I turn to the specific criticisms made by counsel, it is necessary to consider the function of an appellate court. An appellate court will set aside a verdict of a jury if it is established that the verdict is unreasonable or cannot be supported, having regard to the evidence.[1] In considering whether a verdict should be set aside on this ground, the court is required to make an independent assessment of the evidence. In so doing, the court will ask, notwithstanding that there is evidence upon which a jury might convict, whether it is dangerous in all the circumstances to allow the verdict of guilty to stand.[2]
[1] Criminal Law Consolidation Act 1935 s 353.
[2] Hayes v The Queen (1973) 47 ALJR 603, 604.
If, having considered the evidence, the court has a reasonable doubt, or the court has a doubt which a reasonable jury ought to have entertained, the verdict will be set aside as unsafe and unsatisfactory.[3]
[3] M v The Queen (1994) 181 CLR 487; see also Chamberlain v The Queen (No 2) (1984) 153 CLR 618, 619; Chidiac v The Queen (1991) 171 CLR 432, 434-44.
In M,[4] Mason CJ, Deane, Dawson and Toohey JJ observed:
But it is, we think, possible to make too much both of the view expressed by Barwick C.J. and of the qualification suggested. In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. Although the propositions stated in the four preceding sentences have been variously expressed in judgments of members of the Court in previous cases, we have put aside those differences in expression in order to provide authoritative guidance to courts of criminal appeal by stating the propositions in the form in which they are set out above.[5] (Citations omitted)
[4] M v The Queen (1994) 181 CLR 487.
[5] M v The Queen (1994) 181 CLR 487, 494-5.
I now turn to the specific complaints made by the appellant. The appellant submits that the description by the complainant of the events in the car, as it was driving along Henley Beach Road, are so inherently implausible that this Court should conclude that such a doubt exists as to require the Court to conclude that the verdict is unsafe.
As I have detailed earlier in these reasons, the complainant gave evidence that shortly before 11:30 am the appellant dropped off Ms Virgo near the corner of Waymouth and King William Streets. She then said that she asked the appellant to take her back to the church but, instead, he drove her around the streets of Adelaide for a while before stopping at the Coles supermarket on Grote Street. She said that before the appellant stopped at the Coles supermarket, she received a telephone call from her boyfriend on her mobile. It was during that call that her boyfriend became angry. Mr Mead submitted that the complainant’s evidence about those events cannot be correct. He submitted that, if the evidence of the manager of the Coles supermarket was accepted as accurate, the appellant was filmed leaving the supermarket at about 11:33 am. Mr Mead submitted that the evidence of SF that she was driven around the streets before going to Coles cannot be correct, given that Ms Virgo was dropped off at Waymouth Street at about 11:30 am and the appellant was seen leaving Coles at 11:33 am. He submitted that this casts significant doubt over the complainant’s evidence.
The appellant gave evidence that SF received the telephone call from her boyfriend when he was driving along Henley Beach Road. It was the defence case that it was the telephone call from SF’s boyfriend that caused SF to change her attitude, lose her composure and demand to be driven back to the church. It was when he was in the process of trying to find a suitable place to turn the car around that SF became agitated and tried to climb over him and get out of the car.
Mr Mead submitted that SF’s evidence is so inherently unlikely and unreliable that the jury could not reasonably conclude that the case against the appellant had been proved.
The trial Judge reminded the jury of SF’s evidence and he reminded the jury of the defence case. He directed the jury that they should give special consideration to the telephone call between SF and her boyfriend. He reminded the jury that there was an inference in the defence case that SF was in trouble with her boyfriend and that was the reason why she suddenly wanted to return to the church. The jury was aware of the significance of the timing of the telephone call to the defence case.
Undoubtedly, there were aspects of SF’s evidence which were unsatisfactory. However, juries are often confronted with evidence which is difficult to reconcile. It is not uncommon for witnesses to give different accounts of events, some of which may be crucial to the prosecution case. The mere fact that there may be some aspects of a witness’ evidence which are unsatisfactory is not sufficient reason for an appellate court to overturn a conviction. The jury was directed about the complainant’s evidence. They were aware of the questions which had been raised as to the timing of events and they were directed that they must be satisfied beyond reasonable doubt before they could convict the appellant.
Mr Mead further submitted that if the evidence of Mr Toye was believed and was accurate, he had observed the appellant at the intersection of Henley Beach and South Roads. Mr Toye was aware that there was a person in the front passenger seat of the appellant’s car, yet he saw nothing which specifically drew his attention to her at that time. Mr Mead submitted that the events the subject of the charges must have occurred in the two or three minutes during which the appellant was driving between South Road and Marion Road. He submitted that SF’s evidence about the incident of the appellant holding her head in his lap, which lasted for about five minutes, was not possible. He submitted that if the evidence of Mr Toye is accurate, the events could not have occurred as described by SF.
Again, these are matters which were before the jury. Counsel addressed the jury and defence counsel made a specific submission that the events described by the complainant were inherently improbable. He put the following submission to the jury:
There are a number of issues about this description of events in the car that, looked at individually and certainly looked at collectively – I mean, she is either travelling with an octopus or there are things that don’t make sense; it is physically too difficult. And one option is she has lied to you and the other option is, as a consequence of her chroming she has had a delusional belief that things were different than what they actually were, and if that’s the case then she might pass the prosecutor’s first step of honesty and she falls at the hurdle in reliability. If she falls at the hurdle of reliability, for that reason it goes to the question of the allegations about sexual contact as well in a very fundamental way.
The trial Judge reminded the jury of defence counsel’s submissions. He directed the jury as follows:
The defence says that there are some questions which you should ask yourselves. I have already invited you to use your commonsense and think about this case, I have no doubt that you will do that. The defence says that you should consider the following questions: did the accused grab SF by the back of her neck as she described to you or by the throat as she told the police? How did he choke her if she was grabbed by the back of the neck? How did he push her head down if it was by the throat? How did he hold her with his left hand and grab the backpack and throw it over the pack [sic] with his right hand and still steer the car, at an assumed 60 km/h? Then when he held her with his left hand how could he have stroked her breast with his right hand, that is with the hand being placed under her top from the bottom of the top. How did he hold her down and steer the car and pull his pants up? They are all questions which do require your consideration. The way defence counsel put his client’s case was SF was either travelling with an octopus or the evidence that she gave does not make sense because the events which she described are physically too difficult. That’s why we have a jury, ladies and gentlemen, to decide questions like that. The defence says the options are that she has lied or as a consequence of her chroming she had a delusional belief.[6]
[6] Appeal Book p 38.
The trial Judge reminded the jury of the appellant’s evidence.
Mr Mead submitted that there was no satisfactory explanation as to how SF came to be in the appellant’s lap. He submitted that the prosecution case was not consistent and the explanation of how she came to be in the appellant’s lap was unsatisfactory. He submitted that her suggestion that she was asleep or unconscious was not credible. He submitted that SF gave inconsistent evidence about when she received the telephone call from her boyfriend. Mr Mead pointed out that SF’s evidence that she could not see the appellant’s penis, yet she could observe the appellant’s hand on the steering wheel of the car was irreconcilable. He submitted that SF’s evidence about how her neck was bruised was not credible.
Again, these were all matters which were put to the jury. The trial Judge reminded the jury about the evidence and he reminded the jury about counsels’ submissions.
I accept that there were parts of the prosecution case and, in particular, parts of SF’s evidence which were unsatisfactory. Her memory of the events was unreliable in part. As I have indicated, it is not unusual for the evidence of people who have been involved in traumatic events to be inaccurate in some respects. The judge made it clear to the jury that, in respect of the events which form the subject of the charges, they had only the complainant’s evidence and the appellant’s evidence. He cautioned the jury that, before they could convict the appellant, they must be satisfied beyond reasonable doubt of each element of each charge. He made it clear it was not a case of preferring one version to another. The jury had to be satisfied beyond reasonable doubt that the prosecution had proved the case. In that respect, they had to be satisfied beyond reasonable doubt about SF’s version of the events in the car which were the subject of the charges.
The jury had the benefit of seeing and hearing the witnesses, including the appellant. The jury saw photographs of the bruising to SF’s neck. The appellant’s conduct after the collision was evidence to which the jury were entitled to have regard. The trial Judge identified four significant events which had occurred. First, the appellant fled the scene. Secondly, the appellant made a false report to the police about the disappearance of his car. Thirdly, he set fire to the car. Fourthly, he washed his clothes. The trial Judge directed the jury that they could use these matters as evidence of the appellant’s consciousness of guilt. His directions in this regard have not been challenged.
There were unsatisfactory aspects of the complainant’s evidence, including the description of driving around the Adelaide streets, the timing of events which occurred in the car, her recollection of the sequence of events and her description of some of the appellant’s conduct whilst the car was moving. There were features of the appellant’s evidence which were unsatisfactory, including his description of grabbing the complainant around the neck whilst driving, as well as his explanations for driving away from the city towards the beach, for making a false report and for burning his car and washing his clothes, including his sneakers.
Nevertheless, the jury heard and saw the witnesses. Although this Court is required to review the evidence, it is not the role of the Court to substitute its opinion for the decision of the jury. If this Court considers that there is a significant possibility that an innocent person has been convicted, it will interfere. I am unable to so conclude.
I cannot conclude that I have a doubt that a reasonable jury should have entertained.
Inconsistent verdicts
The appellant contends that the verdicts are inconsistent. Mr Mead submitted that there was no basis for the jury to differentiate between the counts. He submitted that there is no way to rationalise the verdict.
I cannot agree. The jury was directed that they must consider each of the offences charged separately. The two offences related to conduct which was quite distinguishable. The conduct which amounted to attempted rape was a deliberate act of pushing the complainant’s face and mouth towards the appellant’s penis. It lasted for some time and involved holding SF’s head down into the appellant’s groin area. The act said to amount to indecent assault was a brushing of the hand against SF’s breast. It was a momentary act, which SF described as the appellant placing his hand under her jumper but above her other layers of clothing. It was open to the jury to have a reasonable doubt as to whether the appellant’s hand had brushed SF’s breast. It was open to the jury to have a doubt about the accuracy of SF’s description.
It does not follow that, because they may have had a reasonable doubt about count two, there must have been a reasonable doubt about count one. There may be instances where a jury can be satisfied beyond reasonable doubt in respect of one part of an incident, yet have a reasonable doubt in respect of another part. The inconsistency was not such as to demonstrate a fatal incompatibility between the verdicts.[7]
Section 67 of the Evidence Act 1929
[7] See Jones v The Queen (1999) 191 CLR 439, 470.
Prior to the prosecutor’s opening, a preliminary issue arose as to the inspection of documents produced by the Modbury Hospital, pursuant to a subpoena. The subpoena sought records of admissions and/or treatment of the complainant from 9 November 2006 to 1 February 2007. Counsel sought access to the documents. Counsel for the prosecution raised a concern that, because the complainant was an alleged victim of a sexual assault, regard should be had to whether any documents are protected communications under the Evidence Act 1929. Section 67E and s 67F(1) and (2) of the Act provide:
67E – Certain communications to be protected by public interest immunity
(1)     A communication relating to a victim or alleged victim of a sexual offence is, if made in a therapeutic context, protected from disclosure in legal proceedings by public interest immunity.
(2)     However, the following communications are not subject to public interest immunity:
(a)a communication made for the purposes of, or in the course of, a physical examination of the victim or alleged victim of a sexual offence by a registered medical practitioner or registered nurse; or
(b)a communication made for the purposes of legal proceedings arising from the commission of the alleged offence or for commencing such legal proceedings; or
(c)a communication as to which reasonable grounds exist to suspect that the communication evidences a criminal fraud, an attempt to pervert the administration of justice, perjury or another offence.
(3)     A public interest immunity arising under this section cannot be waived by –
(a)the counsellor or therapist; or
(b)a party to the protected communication; or
(c)the victim or alleged victim of the sexual offence or the guardian of the victim or alleged victim.
67F – Evidence of protected communications
(1)     Evidence of a protected communication –
(a)is entirely inadmissible in committal proceedings; and
(b)cannot be admitted in other legal proceedings unless –
(i)the court gives permission to a party to the proceedings to adduce the evidence; and
(ii)the admission of the evidence is consistent with any limitations or restrictions fixed by the court; and
(c)is not liable to discovery or any other form of pre-trial disclosure.
(2)     On an application for permission to adduce evidence of a protected communication, the judge may make a preliminary examination of the relevant evidence if satisfied that –
(a)the applicant has a legitimate forensic purpose for seeking permission to adduce the evidence; and
(b)there is an arguable case that the evidence would materially assist the applicant in the presentation or furtherance of his or her case.
Section 67D defines ‘therapeutic context’:
therapeutic context – a communication relating to a victim or alleged victim of a sexual offence is made in a therapeutic context if –
(a) the communication is made –
(i)to enable a counsellor or therapist to assess the nature and severity of the trauma suffered by the victim or alleged victim, or consequent psychiatric, psychological or emotional harm; or
(ii)for the purposes, or in the course, of psychiatric or psychological therapy provided to the victim or alleged victim; and
(b) the communication is made in circumstances that give rise to a duty of confidentiality or a reasonable expectation of confidentiality.

Counsel for the appellant at trial submitted that it was not appropriate for counsel for the prosecution to raise the issue of public interest immunity but, rather, it was for the hospital to raise the objection, by application. If no such application had been made, he submitted that the Judge should permit the appellant’s legal representatives to inspect the subpoenaed documents.
The trial Judge rejected the submission. He concluded that there is a legislative scheme enacted by Parliament to deal with communications made in a therapeutic context.
Section 67E(3) provides that public interest immunity under s 67E cannot be waived. The trial Judge considered that the court was required to determine whether the documents were subject to public interest immunity and it was not necessary for the hospital to raise an objection. He concluded that if he permitted the inspection of protected communications, that might result in a waiver by default which would be contrary to the scheme of the legislation.
The trial Judge inspected the file from the Modbury Hospital. He ruled that certain notes in a progress report were privileged communications but, in other respects, the file could be inspected. He indicated that he had removed the privileged communications from the file.
Counsel for the appellant submitted that the trial Judge erred in inspecting the subpoenaed documents and ruling them protected communications without a claim being made by the hospital and in the absence of supporting evidence.
Counsel submitted that, as a result of the Judge’s refusal to permit inspection, the defence was deprived of the opportunity to identify any documents which might have been relevant and from which it might have been submitted that the appellant had a legitimate forensic purpose in adducing the evidence.
Counsel relied on the decision of Question of Law Reserved (No 1 of 2000).[8] In that case, subpoenas were issued to a number of organisations, including hospitals, requiring production of documents relating to the child abuse of victims of an alleged sexual assault by the defendant. Each institution responded and was represented by counsel, who informed the court that the institutions had removed documents from the file which they said had been created in a therapeutic context. The defendant applied to inspect the documents which had been removed from the files to consider whether there was relevant material from which there could be evidence in respect of which leave to adduce evidence, pursuant to s 67F, should be sought. The Judge declined the application. He also declined to inspect the documents.
[8] (2000) 77 SASR 345.
The Judge stated several questions for consideration by the Full Court. One question asked was whether there was an entitlement, either as of right or by leave of the court, prior to the determination under s 67F(2), for counsel to inspect documents created in a therapeutic context which are the subject of a subpoena. Lander J, with whom Nyland J agreed, considered that the scheme of the legislation is to protect communications of the kind dealt with in the Act from coming to the attention of anyone apart from the parties to the communication. He concluded that any inspection of prohibited communications by counsel for a defendant, for the purpose of deciding whether to make an application to adduce the evidence, would be contrary to the clear purpose and provisions of the legislation.[9] Lander J concluded that it was unnecessary for a court to inspect the documents to determine whether they contained protected communications. He observed that, ordinarily, the court would be satisfied on evidence by affidavit, or given orally, that the communication is privileged. Nevertheless, the court is entitled to inspect the documents if there is any doubt. Debelle J considered it unnecessary to decide whether a judge may inspect the documents for the purpose of determining whether they are, in truth, protected communications. In that case, there was no dispute that the documents were protected communications.
[9] (2000) 77 SASR 345, 360.
In the present case, once the trial Judge was informed that the subpoenaed material contained documents which may be protected communications and in respect of which there was a public interest immunity, pursuant to s 67E of the Act, which could not be waived, he was obliged to decide whether the files contained such communications. The context in which the issue arose during the trial required the trial Judge to make a decision about inspection of the documents. It would have been preferable if evidence had been put before the court upon which a determination could have been made without having had to inspect the documents. However, that was not the case. The Judge was required to satisfy himself that the material did not contain protected communications. He chose to inspect the documents. He was entitled to do so. The Act obliged him to refuse inspection of protected communications and, in order to determine whether communications had been made in a therapeutic context, he was entitled to inspect the documents.
The direction about recent invention
The trial Judge gave directions about the complaints made by SF which were heard by Mr Varcoe, Constable Malpas and other witnesses. He correctly directed the jury that SF’s statements, heard by the witnesses, were relevant in assessing her credit and that, if made, may indicate that her behaviour at the time was consistent with the occurrence of the events about which she had given evidence. He told the jury that contemporaneous complaints can also tend to negative any notion that the allegation is a later invention.
The trial Judge directed the jury that the evidence of statements made by SF to the witnesses was not evidence of what occurred. He directed the jury that the only evidence of what occurred was the evidence of SF. Later in his directions, the trial Judge said:
In this case the complaints or what was heard by Mr Varcoe, Mr Malpas and the English witnesses, followed more or less immediately after the alleged offence at a time when SF had almost no opportunity to invent a story. The possibility that the defence would put forward is that she had been hallucinating or that it was a delusion and that she believed that events had occurred which had not occurred.
Counsel for the appellant submitted that the direction was a misdirection in that it conveyed to the jury that the evidence gave support to the truth of the allegations made by SF. I do not agree. The direction is to be read in the context of the whole summing up. The trial Judge had correctly directed the jury about how they could treat the evidence of statements made by SF as she got out of the car.
Counsel for the appellant complained that the Judge erred in his direction about SF’s lack of opportunity to invent the story. He correctly submitted that it was never the appellant’s case that SF had recently invented the story. It was the defence case that she had invented the story after the telephone call from her boyfriend.
It is unfortunate that, when directing the jury about the evidence of complaint, the Judge used the terminology of recent invention when he said that SF had almost no opportunity to invent a story. It was unnecessary for him to do so. However, the point the trial Judge was making was that the events, as related, gave little opportunity for the complainant to invent the story. That fact was evident to the jury.
This was not a case of recent invention. Although the direction was unnecessary, it said not more than what was obvious to the jury. The jury could not have misconstrued the direction in the manner suggested by counsel. There is no substance in this ground of appeal.
For the reasons I have given, the appeal is dismissed.
WHITE J: In my opinion, the appeal should be dismissed. I agree with the reasons of Sulan J.
DAVID J: I agree the appeal should be dismissed for the reasons given by Sulan J.