R v Mokmargana

[2017] ACTSC 164

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Mokmargana

Citation:

[2017] ACTSC 164

Hearing Date:

6 July 2017

DecisionDate:

6 July 2017

Before:

Elkaim J

Decision:

The applications for a discharge of the jury and for a ‘Prasad’ direction are both refused.

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – No case submission – attempt to engage in sexual intercourse without consent – whether the evidence is capable of supporting a verdict of guilty.

Legislation Cited:

Criminal Code 2002 (ACT) s 44

Cases Cited:

Doney v R (1990) 171 CLR 207

R v Prasad (1979) 2 A Crim R 45

Parties:

The Queen (Crown)

Juswan Mokmargana (Accused)

Representation:

Counsel

Ms E Beljic (Crown)

Mr J Stewart (Accused)

Solicitors

ACT Office of the Director of Public Prosecutions (Crown)

ACT Legal Aid (Accused)

File Numbers:

SCC 245 of 2016 and SCC 246 of 2016

ELKAIM J:

1. At the conclusion of the Crown case, on behalf of the accused, Mr Stewart made an application that the jury should be directed to acquit the accused because he had no case to answer. If this application was not successful, Mr Stewart submitted that I should give the jury what is known as a Prasad direction (derived from The Queen v Prasad (1979) 2 A Crim R 45).

1. Mr Stewart very helpfully provided written submissions in support of his application. The submissions commence by setting out the relevant section of the Criminal Code 2002 (ACT) and then look at some of the applicable authorities, noting that there are not many authorities that specifically deal with s 44.

1. In his oral submissions, Mr Stewart explained the relevance of the geographical distance between the pub and the hotel, being a little over 1 kilometre. He said that whatever happened at the pub could be no more than merely preparatory because the complainant could not have, at the pub, been in a position to be sexually interfered with.

1. In addition, Mr Stewart pointed to the sexual dysfunction suffered by the accused in support of the proposition that, until he had an erection, he could not proceed with any unlawful intent. This required the accused to have consumed a Viagra tablet and for the tablet to have taken effect.

1. In summary, Mr Stewart submitted that whatever happened in the pub could, at its highest, be seen as the accused preparing for the offence. It could not be more than mere preparation until the complainant was stupefied to an extent that she could not consent and the accused was physically able to carry out sexual intercourse, by having an erection.

1. A submission of no case to answer is usually made when it is submitted that the evidence that the Crown has called is not sufficient to prove the relevant offence. In such a circumstance, I have the power to direct a verdict. I should only do so, however, if “there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty”: Doney v R (1990) 171 CLR 207 at 214.

1. Mr Stewart emphasised that the prosecution relies upon evidence of the condoms and Viagra that were found in the accused’s bag at the QT Hotel. He said that they were items of mere preparation awaiting possible use, but on the facts of this case their possible use was remote.

1. The Crown does ask the jury to draw an inference from the presence of the condoms and the Viagra. I intend to direct the jury on the necessary requirements for drawing inferences.

1. If the Crown solely relied upon the presence of these items, then its case would be weak. The Crown, however, relies on a great deal more and, in particular, on the direct evidence of the complainant.

1. If the complainant is accepted, her evidence, together with that of the CCTV footage from the pub, could be relied upon by the jury as indicating that the accused not only inserted two Stilnox tablets into her drinks but did so with the intention of rendering the complainant incapable of giving consent to sexual intercourse.

1. The accused’s own words to the police in the record of interview, where he states that no sexual intention was present with the complainant, are themselves an indication that he knew, firstly, that she did not consent and, secondly, that absent some form of subterfuge or deceit he could not overcome that lack of consent.

1. Knowing she would not voluntarily consent is the preliminary stage to the accused putting into train his plan to render the complainant incapable of providing consent. The insertion of a first, and then a second, tablet into the complainant’s drink is capable of being viewed as the implementation of the plan to not only take away the complainant’s capacity to consent but also to allow, with the assistance of the items in the hotel room, sexual intercourse to take place.

1. In my view, the level of preparation that the accused has submitted needs to have been achieved goes beyond the requirements of the law. I think that it is open to the jury to find that the actions taken by the accused, combining his preparations at the pub and his possession of the items in the hotel room, are sufficient to constitute an attempt to commit the offence.

1. I think the Crown has presented a strong case, which includes evidence that should go to the jury, and that there is evidence upon which a jury could properly convict the accused.

1. Accordingly, the application for a finding of no case to answer is rejected.

1. What I have said above also determines my attitude to the application for a Prasad direction. As Mr Stewart says in his submissions, this direction is given when the prosecution case is weak or flawed.

1. I think that the case is neither weak nor flawed. Accordingly, I decline to give a Prasad direction.

I certify that the preceding seventeen [17] numbered paragraphs are a true copy of the Reasons for Judgment of His Honour Justice Elkaim.

Associate:

Date: 6 July 2017