R v MACKINDER - [2005] SASC 56

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MACKINDER
Judgment of The Court of Criminal Appeal (ex tempore)
(The Honourable Chief Justice Doyle, The Honourable Justice Duggan and The Honourable Justice Vanstone)
14 February 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
Application for leave to appeal against conviction - appellant found guilty by jury and convicted of three counts of unlawful sexual intercourse - whether the trial Judge erred in allowing the Crown to show the complainant a video recording during her evidence in chief - whether trial Judge erred in directions to jury concerning inconsistency in the complainant's evidence and the question of delay - whether the trial Judge erred in directions to jury concerning the failure of the applicant to comply with the statutory obligation to give notice of evidence of an alibi - whether grounds of appeal reasonably arguable - application for leave to appeal dismissed.
R v M [2005] SASC 4, considered.

R v MACKINDER
[2005] SASC 56
Court of Criminal Appeal: Doyle CJ, Duggan and Vanstone JJ

DOYLE CJ: This is an application for leave to appeal against conviction. A Judge of this Court refused leave to appeal. His reasons are reported as R v M [2005] SASC 4.
The applicant now seeks leave to appeal from the Court of Criminal Appeal. The Court has ordered that the application be heard on oral argument.
The applicant was found guilty by a jury of three counts of unlawful sexual intercourse and one count of attempted unlawful sexual intercourse. In each case, the alleged victim was a girl of 14 years of age, to whom I will refer as “the complainant”.
The single Judge provided written reasons for refusing leave. I refer to those reasons, without repeating them, for a summary of the case, an outline of the circumstances of the offences, and for a summary of the grounds of appeal.
Ground 1 complains that the trial judge erred in allowing the prosecutor to show to the complainant, during her evidence-in-chief, a video recording of events that occurred at the home of the applicant on the occasion when she first met him.
There was no dispute at trial that she went to the home of the applicant on the occasion in question. The events, the subject of the charges, occurred allegedly at his home the next day or a day or so later.
When he gave evidence the applicant denied that the complainant was at his house on the second occasion and gave evidence that he was elsewhere at the time in question.
The video film shows the complainant at the house of the accused with a friend. The video shows the complainant and her friend and tends to support her claim that, on the occasion in question, they were using drugs. The video does not implicate the applicant in the supply of drugs.
The complainant’s evidence about the events on the occasion in question appears to be rather lacking in detail, although clear in general terms. The difficulty that the complainant had in providing details might have been attributable to the consumption of drugs, if they were consumed. In her evidence, the complainant did say that the applicant provided some of the drugs to the complainant and to a friend.
In short, the video film provided some detail in support of the complainant’s evidence that she was present at the home of the applicant on the occasion in question and that drugs were consumed, but appears to go no further than that. Three complaints are made in relation to the film.
The first is that the Judge erred in allowing the video film to be shown to the complainant during the course of her evidence-in-chief and, apparently, in allowing it to be proved in that way.
Second, there is a complaint that the video film was used as a means of leading the complainant’s evidence-in-chief.
Third, there is a complaint that the film caused unfair prejudice to the applicant because it was capable of supporting the complainant’s evidence about the use of drugs and the provision of drugs to her, contrary to evidence given on this topic by the applicant. On this basis, it seems to be argued it should have been excluded.
The first point is completely lacking in substance. If the complainant was able to confirm that the video film depicted her and events in which she was involved, about which she was giving evidence, it was permissible to introduce it into evidence through her. Indeed, as it seems to me, the prosecutor was obliged to do so.
There is nothing in this point at all. I am satisfied that the video was admissible and, indeed, no objection appears to have been taken at trial to its admissibility, only to the leading nature of its use. That leads to the second point.
It is conceivable that the video might have helped the complainant a little to give her evidence-in-chief but, in my opinion, it is not arguable that there was any material prejudice caused to the applicant in this respect. As it was, I gather that the complainant’s evidence was fairly general and, in one significant respect to which I will refer, she did not come up to proof in any event.
The events in question were no more than a preliminary to the events the subject of the charges, doing no more than explaining how the complainant came to know the applicant. There is no suggestion that the consumption of drugs was involved in the events the subject of the charges.
As to the third complaint, the complainant’s evidence was that drugs were being consumed on the first occasion she went to the applicant’s home and that the applicant supplied her with drugs. The video does no more than depict some of the events that occurred, and support her claim that drugs were being consumed, without providing any substantial evidence that the applicant was involved. It is not arguable that the evidence was inadmissible because of what it depicted or, in any sense, unfair or prejudicial to the applicant. Accordingly, I would refuse leave to appeal on ground 1.
Ground 2 raises a complaint about the Judge’s directions to the jury about their approach to the evidence of the complainant. She failed to come up to her proof in one significant respect. She had told the police that on the first occasion she went to the applicant’s home, she agreed to have intercourse with him in return for being provided with drugs.
At trial, her evidence was that, apart from the occasions the subject of the charges, she did not remember any other acts of intercourse with the applicant.
Counsel for the applicant cross-examined her about her earlier statement to the police in which she had alleged other acts of intercourse not the subject of the charges.
The complaint under ground 2, as I understand it, is that the judge should have directed the jury in terms of a so-called Longman warning, having regard to the fact that the incidents in question were alleged to have occurred in December 2000 and the applicant was not aware of the allegations against him until April 2003.
I have read the Judge’s directions. The Judge directed the jury adequately in relation to the discrepancy between the evidence the applicant gave and statement that she made to the police. No complaint can reasonably be made about that aspect of the directions, and no complaint appears to have been made.
In relation to the question of delay, the Judge drew to the jury’s attention the fact that the complainant’s evidence was the only evidence directly in proof of the charges against the applicant. The Judge told the jury that there was no evidence that supported her allegations about the offending conduct. She drew the delay to the jury’s attention. She warned the jury that it would be dangerous to convict the accused on the evidence of the complainant alone, unless, after scrutinising her evidence with great care, and considering the circumstances, they were satisfied as to its truth and accuracy.
The Judge linked this warning to the evidence. She did make the comment that there was no suggestion that the applicant had, in fact, been disadvantaged by the delay. She apparently said that because the applicant agreed the complainant was at his house on the occasion, it was videoed and he was able to give evidence in some detail about events on that occasion. As to the occasion the subject of the charges, his defence was a defence of alibi. It would have been better if the Judge had not made that comment because there is always the possibility that had the matter been raised more promptly, the applicant might have been able to remember things, supporting his evidence, that he had forgotten by the time of trial. But taking the Judge’s directions as a whole, it is not reasonably arguable in my opinion that they were inadequate. I would refuse leave to appeal on this ground.
Ground 3 is a complaint about the manner in which the Judge informed the jury that the applicant had failed to comply with the statutory obligation to give notice in advance of the trial of the evidence of alibi. I have read the Judge’s directions on the point. In my opinion, there is nothing at all in this point.
Ground 4 is a complaint that the verdicts were against the weight of the evidence. As such, it is not a proper ground for appeal. Treating it as a complaint that the verdicts are unsafe and unsatisfactory, because the jury should have had a reasonable doubt about the applicant’s guilt, I am satisfied that this ground is not reasonably arguable.
The inconsistency between the complainant’s evidence and her statement to the police was significant. However, it was adequately brought to the attention of the jury and did not necessarily lead to a conclusion that the jury should have had a reasonable doubt about the complainant’s evidence relating to the charges. The same applies to the evidence of alibi.
In substance, the ground is a claim that the inconsistency in her evidence, and the evidence of alibi led by the applicant, lead to the conclusion that it was not open to the jury to be satisfied of guilt beyond reasonable doubt. In my opinion, that is not reasonably arguable. It remained open to the jury to be so satisfied and so I consider that this ground is not reasonably arguable. For those reasons, I would refuse leave to appeal on all grounds.
DUGGAN J: I agree that leave to appeal on all grounds of appeal should be refused for the reasons given by the Chief Justice.
VANSTONE J: I, too, agree.
HIS HONOUR: Accordingly, the order of the Court is leave to appeal be refused.