R v M, TJ - [2005] SASC 4

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v M, TJ
Reasons for Ruling of The Honourable Justice Perry
20 January 2005
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION
The applicant was convicted in the District Court on counts of unlawful sexual intercourse and attempted unlawful sexual intercourse involving a 14 year old girl - he sought leave to appeal against the conviction on various grounds, including an alleged error on the part of the trial judge in allowing a video tape to be played to the complainant in the course of her examination in chief - the applicant further contended that the convictions were against the weight of evidence, having regard to various discrepancies in the complainant's evidence and in her failure to come up to proof during the course of her evidence in chief, as to various alleged uncharged acts - held that none of the proposed grounds of appeal were reasonably arguable - application dismissed.

R v M, TJ
[2005] SASC 4
Criminal

PERRY J. The applicant seeks leave to appeal from his conviction in the District Court on three counts of unlawful sexual intercourse and one count of attempted unlawful sexual intercourse, all involving a 14 year old girl.
The applicant proposes to advance three grounds of appeal, which may be summarised as follows:
1.That the trial judge erred in allowing a video tape to be played to the complainant in the course of her examination in chief.
2.That the trial judge erred in failing to give appropriate directions to the jury along the lines of a so-called Longman direction.
3.The direction given by the trial judge pursuant to s 285C of the Criminal Law Consolidation Act 1935 was unfair and prejudicial.
4.The convictions were against the weight of evidence.
The prosecution case was that after the complainant had been introduced to the applicant, he supplied her with amphetamines in return for sexual favours, which included consensual acts of intercourse on a number of occasions over several days.
However, on the day the offences were alleged to have been committed, when the complainant came to the applicant’s house, he appeared to be angry, struck her and ordered her to his bedroom. After telling her to take her clothes off, he was alleged to have had sexual intercourse with her against her will, taking the form of digital vaginal intercourse, penile vaginal intercourse, fellatio and an attempt at penetration of her anus.
When police officers subsequently attended at the applicant’s house, they seized a video tape which was played at the trial and which is the basis of proposed ground 1.
The police also found what were described as security cameras and secret cameras or pinhole cameras throughout the house, but the applicant apparently removed them before the police had an opportunity to seize them.
The applicant gave evidence, and denied any physical relationship with the complainant.
Proposed ground 1
The applicant’s evidence was that on the day upon which she first met the applicant, she and some other friends stayed overnight at his house. The next morning, a video tape was recorded depicting the complainant and others smoking marijuana and moving around the house. The video tape did not record any overt sexual activity.
Early in her examination in chief, the complainant volunteered a reference to the recording of the tape that morning.
Later, while still being led in examination in chief, counsel for the Crown referred the complainant to her earlier mention of the video, and after an objection by counsel for the applicant was overruled, played the video to her. The replay of the video was punctuated by pauses when the complainant was asked to identify particular activities which were depicted.
The proposed ground of appeal which challenges the use made of the video tape during examination in chief of the complainant was advanced in several ways.
Broadly speaking, the applicant submitted through his counsel that by allowing the video tape to be shown to the complainant during her evidence in chief, the prosecution “was unfairly able to lead its main witness … through important parts of her examination in chief” (proposed ground 1(3)), and that if the video tape was to be introduced into evidence at all, it should have been tendered through police officers after the complainant had given her evidence.
The applicant submitted that the use of the video tape in the manner objected to, allowed the complainant to “refresh her memory during examination in chief” in an impermissible manner.
In my view, however it is put, this proposed ground of appeal is not reasonably arguable.
I can see no relevant distinction between a video and still photographs.
Ordinarily, still photographs may be shown to a witness, who may be invited to indicate if he or she recognises what is depicted in them.
I recognise that in some circumstances such a course may be done in a manner which amounts to impermissible leading. But in this case, the complainant volunteered a reference to the video before it was shown to her, and the matters depicted in it, which she readily identified, were essentially preliminary to the occasion upon which it is alleged that she was assaulted.
The matters depicted in the video tape could not be said to be unduly prejudicial to the applicant. They depicted what were incontestable events which served to indicate the circumstances in which the complainant began associating with the applicant.
I am unable to accept that the playing of the video cassette could have operated as any sort of prompt with respect to the complainant’s evidence of the later, unrecorded assault upon her.
Proposed ground 2
In her evidence in chief, the complainant failed to come up to proof on the statement which she had given earlier to the police, in which she said that there had been earlier acts of consensual intercourse which amounted to payment for drugs. After giving evidence of the occasion upon which the offences were alleged to have been committed, she indicated that she did not remember any other acts of intercourse with the applicant.
She was cross examined by counsel for the applicant and reminded of the statements which she had made to the police concerning the other uncharged acts.
The trial judge gave a lengthy direction to the jury on the topic, and warned the jury that they must take the various discrepancies in her evidence into account in determining whether they were prepared to accept that there had been other acts of intercourse. She gave a further lengthy direction as to the use which might be made of evidence of other acts of intercourse, should the jury be disposed to find that they had taken place.
It was entirely a matter for the jury to determine what they were to make of the complainant’s evidence, including evidence of the uncharged acts.
I am unable to identify any arguably wrong or inadequate direction from the trial judge as to that aspect of the matter.
Proposed ground 3
This ground reads:
“The direction given pursuant to s 285C of the Criminal Law Consolidation Act was, in all the circumstances, unfair and more prejudicial than probative especially taking into account that the alleged victim was assisted in her evidence in chief by reference to video tape (P2) during examination in chief.”
The applicant’s mother and father were called by him to give evidence that he was at their house at Wallaroo on Boxing Day 2000, which is the date upon which the complainant alleged that the offences occurred at the applicant’s house at Brompton.
No alibi notice, as required by s 285C was given by the applicant. The trial judge directed the jury, after explaining the legal rules relating to the giving of a notice of any proposal to introduce evidence of an alibi at trial, in the following terms:
“You can take into account that notice of the evidence giving the accused an alibi was not given to prosecution, when you assess the reliability of the accused’s evidence and whether or not you accept it.”
She went on to say:
“Ladies and gentlemen, you will bear in mind that the accused does not have to prove an alibi or anything else. It is for the prosecution to prove each element of each offence beyond reasonable doubt. If the accused points to an explanation that would exonerate him, it is for the prosecution to eliminate any reasonable doubt such an explanation may have created.”
I am quite unable to see any connection between the showing of the video tape to the complainant during the course of her evidence in chief and the question whether or not there is any appealable error with respect to the direction given by the trial judge as to the alibi notice, or the absence of it.
In any event, I do not consider that the terms upon which the jury was directed on this topic could give rise to any arguable error.
Proposed ground 4
This proposed ground complains that the verdicts were against the weight of the evidence.
The ground is particularised in terms which refer to the failure of the complainant to come up to proof on the evidence of the uncharged acts; inconsistencies between her evidence and her statement to the police; and what is described as “the alleged victim’s attitude in giving evidence, especially in cross examination”. The jury were adequately directed as to these matters by the trial judge, and it was entirely a matter for them as to how the complainant’s evidence was to be assessed in light of those matters.
In my view, this ground is not reasonably arguable.
I would dismiss the application for leave to appeal. I so order.