R v Moss

Case [2011] SASCFC 93

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v MOSS

[2011] SASCFC 93

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Doyle, The Honourable Justice Anderson and The Honourable Justice Peek)

26 August 2011

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - ALTERNATIVE VERDICTS

EVIDENCE - WITNESSES - CROSS-EXAMINATION - AS TO CREDIT - ON FORMER STATEMENTS - TENDERING OR CALLING EVIDENCE AS TO FORMER INCONSISTENT STATEMENT

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - EFFECT OF MISDIRECTION OR NON-DIRECTION

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - INCONSISTENT VERDICTS

Appeal against conviction - the appellant was found guilty by a jury on charges of aggravated assault (count 1), attempted rape (count 3), indecent assault (count 4) - the appellant was found not guilty of rape, but guilty of attempted rape - the appellant was found not guilty on a charge of assault (count 2).

The complainant was a prostitute that the appellant had hired for her services - the complainant told the appellant that it was a condition of her services that he wear a condom - the prosecution case was that after the appellant had consensual sexual intercourse with the complainant using a condom, the appellant threatened the complainant with a pistol (count 1) and assaulted her (count 2), intending to intimidate and frighten the complainant so that she would have sex with the appellant without requiring him to use condom - the appellant had sexual intercourse with the complainant, without using a condom, overcoming the complainant's resistance and she being frightened by the events comprising count 1 and count 2 - the act of sexual intercourse without a condom was count 3 - as the complainant was waiting to be picked up by her driver, the appellant masturbated himself and touched the complainant on the buttocks (count 4).

The issues were:  (1) whether the trial Judge erred in leaving the alternative offence of attempted rape to the jury;  (2) whether the trial Judge refusing defence counsel permission to cross-examine a prosecution witness on a particular topic meant that the verdicts on count 3 and count 4 could not stand;  (3) whether the trial Judge erred in directing the jury as to the elements of the offence the subject of count 4 and, therefore, whether the guilty verdict on count 4 was unreasonable;  and (4) whether the guilty verdict on count 1 was inconsistent with the not guilty verdicts on count 2 and count 3 so as to make the verdict of guilty on count 1 unreasonable.

Held (Doyle CJ with Anderson and Peek JJ concurring):  (1) the alternative verdict of attempted rape was not reasonably open on the evidence;  (2) the trial Judge erred in refusing to permit defence counsel to cross-examine the prosecution witness - the intended cross-examination was to question the prosecution witness as to a prior inconsistent statement -…

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AGLC
R v Moss [2011] SASCFC 93
Case
[2011] SASCFC 93
Decision Date

CaseChat Overview and Summary

The appeal concerned a conviction against the appellant, Mr Moss, by a jury on charges of aggravated assault, attempted rape, and indecent assault. Mr Moss was acquitted of rape but found guilty of attempted rape, and acquitted of a separate charge of assault. The dispute arose from an encounter between Mr Moss and a prostitute, Ms F, where the prosecution alleged that after consensual sexual intercourse with a condom, Mr Moss threatened Ms F with a pistol and assaulted her, intending to force her to have sex without a condom. The prosecution further alleged that Mr Moss then had sexual intercourse with Ms F without a condom, overcoming her resistance, and subsequently masturbated and touched her buttocks. The appeal was heard by the Full Court of the Supreme Court of South Australia.

The court was required to determine several legal issues. Firstly, whether the trial judge erred in leaving the alternative offence of attempted rape to the jury. Secondly, whether an error in refusing defence counsel permission to cross-examine a prosecution witness on a specific topic rendered the verdicts on attempted rape and indecent assault unsafe. Thirdly, whether the acquittals on assault and rape were inconsistent with the convictions for aggravated assault and indecent assault, thus rendering those convictions unreasonable. Finally, the court considered whether the convictions for aggravated assault and indecent assault were unreasonable in light of criticisms of the prosecution's case and the trial judge's handling of a jury question regarding the indecent assault charge.

The court found that the trial judge had erred in leaving the alternative charge of attempted rape to the jury. The judge's reasoning, based on Ms F's initial complaint to police, was flawed because the complaint was not evidence of the truth of its contents, and the witness had testified that Ms F had complained of being "raped," not "attempted rape." Furthermore, there was no reasonable basis in the evidence to support an alternative verdict of attempted rape, as Ms F's evidence was unequivocal about penetration having occurred, and the defence had not suggested an unsuccessful attempt at intercourse without a condom. The court noted that the prosecution had not presented any basis for a finding of attempted rape other than the possibility of the jury being unsatisfied about penetration, for which no reason was identified.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The following issues were argued on appeal. First, whether the Judge should have left the alternative offence of attempted rape to the jury. Second, whether an error by the Judge in refusing defence counsel permission to examine a prosecution witness on a particular topic meant that in any event the verdicts on count 3 and count 4 could not stand. Third, whether the not guilty verdicts on count 2 and count 3 were inconsistent with the guilty verdicts on count 1 and count 4, leading to a conclusion that the verdicts on these counts were unreasonable and should be set aside. Fourth, whether, in any event, the verdicts on count 1 and count 4 were unreasonable having regard to certain criticisms that could be made of the prosecution case and, in relation to count 4, having regard to the manner in which the Judge dealt with a question by the jury.Summary of the evidence by Ms F and by Mr Moss This summary is drawn from the Judge’s summing up. I begin with the evidence relied on by the prosecutor. Mr Moss rang the premises where Ms F worked, and arranged for her to come to his unit at about 2.45 am one morning. She was driven to the unit. There was no attempt by Mr Moss to conceal his identity or address. Mr Moss paid Ms F $250. They showered together and engaged in some foreplay. Mr Moss asked if Ms F would do anything without a condom, and she said that she would not. They then went to the bedroom where, on the bed, there was further sexual foreplay. Again Mr Moss asked if she would do anything without a condom, and again she said no. She did agree to masturbate him. Again he asked if she would do anything without a condom and she said she would not. She then got a condom from her bag and put it on Mr Moss. They had sexual intercourse for a few minutes. Mr Moss then went to another room to change the music that was playing. The room was dark and when he returned he suddenly pointed a gun at Ms F’s face and pulled the trigger. That was the subject of count 1. Ms F was scared. Mr Moss laughed. Then he pulled the trigger to show her that the pistol was not loaded. He put the pistol into her hands, and she held it for a couple of seconds, because she was curious. Then Mr Moss roughly pushed her on to her front on to the bed, put his right arm around her throat and then pulled back on her throat in such a way as to have a choking effect. She had difficulty breathing. That was count 2. She said that by now she was scared, and did not know if it was best to try to leave or to stay. Ms F got up and was kneeling on the bed. Mr Moss pushed her on to her back. At about this time she saw him remove the condom. He held her arms down above her head. Her knees were up, and he was lying between her legs with his groin between her legs. She told him again that she did not have sex without a condom, and he replied that he was just trying to have fun. She was using her legs to prevent him getting any further or any closer, but he kept pushing. This persisted for several minutes and then her legs gave out. She felt his penis go into her vagina. He penetrated a distance of a centimetre or two, and only for a few seconds. That was count 3.

Decision

Reasons for decision

In this summary I have not attempted to capture all the details of the evidence. In particular, I have not concerned myself with the suggested inconsistencies between Ms F’s evidence and previous out of court statements. The decision to leave attempted rape as an alternative verdict (Ground 1) After the completion of the evidence the prosecutor asked the Judge to leave a charge of attempted rape to the jury as an alternative to the charge of rape. The application was made to the Judge relying on a complaint to a police officer by Ms F, in which she made no reference to intercourse. The prosecutor said that the jury for that reason might not be satisfied beyond reasonable doubt of the fact of penetration. Counsel for Mr Moss objected to that course. The Judge agreed to the submission by the prosecutor, referring to the fact that in her first complaint Ms F had said that Mr Moss had attempted to rape her. She had explained in evidence that she said that because she did not think that what she was complaining about amounted to rape. On the hearing of the appeal Mr Preston, counsel for the Director of Public Prosecutions (DPP) acknowledged that the reason given by the Judge for his decision was wrong. The evidence of the complaint by Ms F was admissible only to demonstrate consistency on the part of Ms F. It was not led as evidence of the truth of its contents. As well, the witness who gave evidence of the compliant said that Ms F complained that she was “raped” and did not give evidence of a complaint in terms of an attempted rape. In this respect the Judge erred. Nevertheless, Mr Preston submitted that the alternative verdict of attempted rape was open on the evidence, and so was properly left to the jury. In the prosecutor’s address in relation to attempted rape, the prosecutor did not put to the jury any basis for a finding that Mr Moss was guilty of attempted rape, other than the possibility that they might not be satisfied that there was penetration of Ms F’s vagina. But no reason was identified why the jury might fail to be satisfied beyond reasonable doubt of the fact of penetration. The duty of a trial judge is to leave to the jury any verdict which is open as a matter of law on the charges laid (that is, any verdict which may be returned as an alternative to the offence charged) provided that there is a reasonable basis in the evidence for that alternative, or provided that the alternative verdict is reasonably open on the evidence: Benbolt v The Queen (1993) 60 SASR 7 at 18-19 King CJ, at 23 Perry J and at 26-27 Duggan J; R v Perdikoyiannis [2003] SASC 310; (2003) 86 SASR 262 at [36]-[48] Doyle CJ, Besanko J and Sulan J agreeing at [62]-[64]. With all respect to the trial Judge, I consider that he erred in leaving the alternative charge of attempted rape. In her evidence Ms F was adamant that penetration had occurred. There is nothing in her evidence to suggest an attempt at intercourse not involving penetration. She did not admit to any uncertainty about the penetration. It was not part of the defence case that Mr Moss had attempted to have sexual intercourse not using a condom, but had been unsuccessful in that attempt. Until the matter was raised by the prosecutor, it had not been part of the prosecution case that the case might be one of attempt only.

Ratio Decidendi

Legal Principle Established

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