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R v Mustafa

R v Mustafa

Case [2005] SASC 66 23 February 2005

Appeal

Admissibility of Evidence

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SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MUSTAFA
Judgment of The Court of Criminal Appeal
(The Honourable Justice Debelle, The Honourable Justice Besanko and The Honourable Justice White)
23 February 2005
CRIMINAL LAW - EVIDENCE - COMPLAINTS
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - PREJUDICIAL EVIDENCE
CRIMINAL LAW - EVIDENCE - SIMILAR FACTS - ADMISSIBILITY
Appeal against conviction for rape - where appellant assaulted complainant 24 hours after the rape - where trial Judge admitted evidence of the assault - whether evidence of the assault should have been excluded on the basis that it was more prejudicial than probative - where trial Judge admitted evidence of prior incidents of violence by appellant against complainant but gave a propensity warning - whether evidence of prior incidents should have been excluded on the basis that it was more prejudicial than probative - where appellant gave evidence and was cross-examined as to the prior incidents - whether cross-examination infringed s 18(1)(d) of the Evidence Act 1929 (SA) - where complainant waited more than 30 hours after the rape before lodging a complaint - whether complaint was made at the first reasonable opportunity and was spontaneous - whether trial Judge must be satisfied on the balance of probabilities that the complaint was made at the first reasonable opportunity and was spontaneous, or whether trial Judge need only be satisfied that there is evidence which is capable of being regarded by the jury as satisfying these requirements - appeal allowed, conviction quashed and charge remitted to the District Court for retrial.
Criminal Law Consolidation Act 1935 s 48; Evidence Act 1929 s 18, referred to.
R v Duke (1979) 22 SASR 46; R v Corrigan (1998) 74 SASR 454; Wilson v The Queen (1970) 123 CLR 334; R v Hissey (1973) 6 SASR 280; R v Olasiuk (1973) 6 SASR 255; R v Etherington (1982) 32 SASR 230; R v Garrett (1988) 50 SASR 392; R v Nieterink (1999) 76 SASR 56; R v Beserick (1993) 30 NSWLR 510; R v Lock (1997) 91 A Crim R 356; Harriman v The Queen (1989) 167 CLR 590; Attwood v The Queen (1960) 102 CLR 353; R v Vuckov & Romeo (1986) 40 SASR 498; Jonkers v Police (1996) 67 SASR 401; R v Peake (1974) 9 SASR 458; R v Gallagher (1986) 41 SASR 73; R v Szejnoga (1998) 199 LSJS 97; Wendo v The Queen (1963) 109 CLR 559; R v Freeman [1980] VR 1; R v Timm [1981] 2 SCR 315; MacPherson v The Queen (1981) 147 CLR 512; R v King (1995) 78 A Crim R 53; R v Blayney [2001] SASC 211; R v GG [2004] VSCA 238, considered.

R v MUSTAFA
[2005] SASC 66
Court of Criminal Appeal: Debelle, Besanko and White JJ

DEBELLE J. I have read the draft reasons…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Mustafa

Details

AGLC: R v Mustafa [2005] SASC 66
Case: [2005] SASC 66
Decision Date: 23 February 2005

CaseChat Overview and Summary

In the matter of R v Mustafa, the appellant contested his conviction for the crime of rape. The case came before the court as an appeal against the conviction, with the appellant arguing several points, including the admissibility of evidence pertaining to an assault on the complainant occurring 24 hours after the alleged rape, the admissibility of evidence of prior incidents of violence, and the manner in which the trial judge handled the evidence of the complaint. The case hinged on the admissibility and impact of certain pieces of evidence on the jury's perception of the case.

The legal issues before the court involved the judicial discretion to admit or exclude evidence, specifically whether the evidence of the assault and prior incidents was more prejudicial than probative. The court also examined whether the cross-examination of the appellant regarding the prior incidents contravened section 18(1)(d) of the Evidence Act 1929 (SA). Furthermore, the court considered the timing and nature of the complainant's report of the rape, questioning whether it was made at the first reasonable opportunity and whether it was spontaneous. The overarching issue was whether the trial judge applied the correct standard in assessing the admissibility and weight of the evidence of the complaint.

In addressing these issues, the court concluded that while the challenges to the complaint were largely without merit, the admissibility of the assault evidence could have influenced the trial judge's decisions on the complaint and its weight. The court found that the trial judge must consider the admissibility of the complaint afresh on retrial, particularly in light of how the evidence of the complaint would be presented without the assault evidence. The court held that the appellant's conviction was quashed and the matter was remitted to the District Court for retrial, adhering to the findings and reasoning of Besanko J.

The final orders were to allow the appeal, quash the conviction, and remit the charge to the District Court for retrial, in accordance with the earlier decision of 21st December 2004.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

DEBELLE J WHITE J

I reject the appellant’s various challenges in relation to the complaint insofar as they were put independently of the decision to admit the evidence of the assault. However, the evidence of the assault affected or may have affected the decision to admit the evidence of the complaint and the weight the jury placed on the evidence of the complaint. On a retrial it will be necessary for the Judge to consider the admissibility of the complaint having regard to the evidence put before him and, in particular, how the Director proposes to lead the evidence of the complaint absent the evidence of the assault.Conclusion It was for these reasons that I agreed with the orders made by the Court on 21st December 2004. I agree with the reasons of Besanko J.

Ratio Decidendi

Legal Principle Established

Established by: DEBELLE J, WHITE J

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Actions

Citations

R v Mustafa [2005] SASC 66

Most Recent Citation

R v VR, E [2006] SADC 113

Cases Citing This Decision

R v Hill and May [2018] SADC 67
Citation 1

…80; R v Soteriou (2013) 118 SASR 119; R v Hill and Young [2014] QCA 107; Martin v Osborne (1936) 55 CLR 367; R v Schanker [2018] VSCA 94; R v Mustafa (2005) 91 SASR 62; R v Hulse (1971) 1 SASR 327; R v Derwish [2016] VSCA 72; Twining v Samuels (1971) 2 SASR 50; Whitmore v Harding (1974) 9 SASR 312; Dimitriou v Samue…
R v VITOR [2017] SADC 85
Citation 2

…annon v The Queen (1995) 181 CLR 1; khalid Baker v The Queen (2012) HCA 27; R v Martin (2002) QCA 443; R v Stasi & Makris (2005) SASC 241; R v Errigo (2005) 91 SASR 62; Ridgeway v R (1995) 184 CLR 19; Shirvanian v DPP (1998) 44 NSWLR 129; R v Walton (1989) 166 CLR 283; Batistas v Roads & Traffic Authority of NSW (20…
R v Maiolo (No 3) [2014] SASCFC 89
Citation 3 (Para 29)

…R 119 in which evidence of a complaint made by an adult complainant either a day or a week after the event, was admitted. [61] In R v Mustafa (2005) 91 SASR 62 Besanko J summarised a number of matters relevant to the issue of admissibility of complaints which are of particular relevance in cases involving those made…
R v Joseph [2010] SADC 27
Citation 4 (Para 32)

…ortunity, namely the first occasion he was alone with mother.[10] [10] See R v Gallagher (1986) 41 SASR 73 per King CJ at p 77-8, R v Mustafa (2005) 91 SASR 62 at [56], R v Humble [2009] SASC 378…
R v Seigneur [2009] SASC 59
Citation 5 (Para 12)

…approach of the common law to evidence of complaints was conveniently summarised by Besanko J in Mustafa [9] in the following terms: [9] R v Mustafa (2005) 91 SASR 62 at [56]-[57]. In considering if a complaint in relation to a sexual offence is admissible, a judge is required to decide if it was a complaint as dis…
R v Humble [2009] SASC 51
Citation 6 (Para 1)

…In R v Mustafa (2005) 91 SASR 62 Besanko J summarised a number of matters relevant to the issue of admissibility of complaints which are of particular relevance in cases involving those made by children. He said at [56]: …Relevant matters in the case of the requirement of first reasonable opportunity include the comp…
R v Wallace [2008] SASC 47
Citation 7 (Para 17)

…f conduct.[19] [18] See the discussion of this question by King CJ in R v Gallagher (1986) 41 SASR 73, 76-78. [19] R v Mustafa (2005) 91 SASR 62, 76, [2005] SASC 66, [56].…
R v P, LB [2008] SADC 6
Citation 8 (Para 22)

…turn to this evidence of complaint after I have dealt with the complainant’s cross-examination on this topic. [4] See, for example, R v Mustafa (2005) 91 SASR 62 at [56]-[57] per Besanko J with whom White J agreed.…
C, GM v Police [2007] SASC 310
Citation 9 (Para 26)

…d by the jury as making out these requirements. In a number of subsequent cases that is the approach which has been taken.[3] [citations omitted] [1] (2005) 91 SASR 62. [2] Ibid, 76 [56]. [3] Ibid, 77 [60]. See also R v King (1995) 78 A Crim R 53; R v Blayney [2001] SASC 211; R v GG (2004) 151 A Crim R 92.…
R v Abela [2007] VSCA 22
Citation 10

…[9] R v Mustafa (2005) 91 SASR 62 at 65 per Debelle J.…
R v VR, E [2006] SADC 113
Citation 11 (Para 18)

…is applicable in this case, is whether there is “some evidence which, if believed by the jury, would constitute a complaint”[6]. [6] R v Mustafa (2005) 91 SASR 62…
R v Wannan [2006] SASC 151
Citation 12 (Para 19)

…e part of the complainant: The Queen v Gallagher (1986) 41 SASR 73 at 76-79 King CJ; R v Szejnoga (1998) 199 LSJS 97 at 101-103 Doyle CJ; R v Mustafa [2005] SASC 66; (2005) 91 SASR 62 at [1] Debelle J, at [56]-[62] Besanko J. That requires that the statement express or imply a grievance, and that what is said is…

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Cases Cited

R v Duke [2020] NSWDC 341
Citation 1 (Para 1)

…ce must be additional to, or distinct from, the detriment to the appellant’s interests involved in the probative force of the evidence. In R v Duke (1979) 22 SASR 46 per King CJ (47 – 48): “The general principle is that the prosecution is entitled to have placed before the jury all evidence which is legally admissib…
R v Peake [2017] SASC 10
Citation 2 (Para 1)

…satisfying the conditions for the admissibility of a complaint; it is the task of the jury to determine whether it is in fact a complaint: R v Peake (1974) 9 SASR 458 at 461; R v Gallagher (1986) 41 SASR 73 at 77 – 78 where King CJ adopted the statement of law in the reasons of the Full Court of the Supreme Court o…
R v Gallagher [2013] NSWSC 1102
Citation 3 (Para 1)

…sibility of a complaint; it is the task of the jury to determine whether it is in fact a complaint: R v Peake (1974) 9 SASR 458 at 461; R v Gallagher (1986) 41 SASR 73 at 77 – 78 where King CJ adopted the statement of law in the reasons of the Full Court of the Supreme Court of Victoria in R v Freeman [1980] VR 1 at…
R v Garrett [2005] SASC 58
Citation 4 (Para 8)

…( Wilson v The Queen (1970) 123 CLR 334; R v Hissey (1973) 6 SASR 280; R v Olasiuk (1973) 6 SASR 255; R v Etherington (1982) 32 SASR 230; R v Garrett (1988) 50 SASR 392; R v Nieterink (1999) 76 SASR 56; R v Beserick (1993) 30 NSWLR 510; R v Lock (1997) 91 A Crim R 356).…
R v GG [2004] VSCA 238
Citation 5 (Para 10)

…ents. In a number of subsequent cases that is the approach which has been taken ( R v King (1995) 78 A Crim R 53; R v Blayney [2001] SASC 211; R v GG [2004] VSCA 238).…
R v Corrigan [2001] QCA 401
Citation 6 (Para 1)

…the manner of its presentation which would render it gravely prejudicial in the sense referred to above.” (See also R v Corrigan (1998) 74 SASR 454 per Doyle CJ at 460).…
Jonkers v Police [1996] SASC 5956
Citation 7 (Para 1)

…which the jury should consider in determining whether the complaint was made at the earliest reasonable time” and he referred to Jonkers v Police (1996) 67 SASR 401.…
Harriman v the Queen [1989] HCA 50
Citation 8 (Para 11)

…e was to “examine” her vagina whether she consented or not. In my opinion, that was a permissible non-propensity purpose ( Harriman v The Queen (1989) 167 CLR 590 per McHugh J at 630 – 633). This conclusion is reinforced by the fact that the Judge clearly warned the jury not to use the evidence of the prior incidents…
Wilson v the Queen [1970] HCA 17
Citation 9 (Para 8)

…may be admissible other than as similar fact evidence or propensity evidence if it is probative of some other issue in the case ( Wilson v The Queen (1970) 123 CLR 334; R v Hissey (1973) 6 SASR 280; R v Olasiuk (1973) 6 SASR 255; R v Etherington (1982) 32 SASR 230; R v Garrett (1988) 50 SASR 392; R v Nieterink (1999…
Wendo v The Queen [1963] HCA 19
Citation 10 (Para 8)

…The Judge is to decide the question of admissibility on the balance of probabilities ( Wendo v The Queen (1963) 109 CLR 559; R v Szejnoga (supra)). The appellant submitted that the Judge must be satisfied that the complaint was made at the first reasonable opportunity and was spontaneous, and that it is not enough th…
Attwood v The Queen [1960] HCA 15
Citation 11 (Para 18)

…I think the Director’s submission is correct and is supported by the decision of the High Court in Attwood v The Queen (1960) 102 CLR 353. In that case the Court said (at 361): “The exclusory words in s. 399 ( e ) do not naturally relate to a fact, matter or circumstance which is in itself directly relevant to the pr…
MacPherson v The Queen [1981] HCA 46
Citation 12 (Para 9)

…the Supreme Court of Canada in R v Timm (1981) SCR 315 and, as I understand it, is consistent with the approach adopted in the case of confessions ( MacPherson v The Queen (1981) 147 CLR 512). However, I note that in R v Gallagher (supra) King CJ (at 77) approved the following statement of the law in R v Freeman (supra) (at 5)…
R v Nieterink [1999] SASC 560
Citation 13 (Para 8)

…R 334; R v Hissey (1973) 6 SASR 280; R v Olasiuk (1973) 6 SASR 255; R v Etherington (1982) 32 SASR 230; R v Garrett (1988) 50 SASR 392; R v Nieterink (1999) 76 SASR 56; R v Beserick (1993) 30 NSWLR 510; R v Lock (1997) 91 A Crim R 356).…
R v Blayney [2001] SASC 211
Citation 14 (Para 10)

…aking out these requirements. In a number of subsequent cases that is the approach which has been taken ( R v King (1995) 78 A Crim R 53; R v Blayney [2001] SASC 211; R v GG [2004] VSCA 238).…
Supreme Court of Canada in R v Timm (1981) SCR 315
Citation 15 (Para 9)

…complaint was made at the first reasonable opportunity and was spontaneous. That was the approach adopted by the Supreme Court of Canada in R v Timm (1981) SCR 315 and, as I understand it, is consistent with the approach adopted in the case of confessions ( MacPherson v The Queen (1981) 147 CLR 512). However, I…
MacPherson v The Queen [1981] 2 SCR 315
Citation 16

…9 SASR 458; R v Gallagher (1986) 41 SASR 73; R v Szejnoga (1998) 199 LSJS 97; Wendo v The Queen (1963) 109 CLR 559; R v Freeman [1980] VR 1; R v Timm [1981] 2 SCR 315; MacPherson v The Queen (1981) 147 CLR 512; R v King (1995) 78 A Crim R 53; R v Blayney [2001] SASC 211; R v GG [2004] VSCA 238, considered.…

Legislation Cited

Criminal Law Consolidation Act 1935 (SA) 48
2 mentions (from Para 3)
Evidence Act 1929 (SA) 18
2 mentions (from Para 14)