R v Nand No. Sccrm-96-358 Judgment No. S6040

[1997] SASC 6040

R  v  NAND

Court of Criminal Appeal:  Prior, Perry and Duggan JJ (extempore)
        In this appeal the appellant complains that four guilty verdicts returned against him are unsafe and unsatisfactory.
The appellant was tried by judge alone.  The trial judge found the appellant guilty of three counts of rape and one count of threatening the life of his wife.  The three counts of rape were alleged to have occurred on 3 successive days in December 1995.  The threat to life was said to have occurred two days after the third alleged rape.
The principal evidence called before the trial judge came from the appellant and his wife.  She detailed the history of the relationship between them.  Much of that evidence was not disputed by the appellant.  They married in December 1994 in Fiji.  The marriage was an arranged marriage.  That is not an uncommon practice amongst members of the Hindu religion.  The appellant is a Fijian of the Hindu religion, his wife an Australian citizen.  She professed to an acquaintance with both Christianity and the Hindu religion in the evidence before the trial judge.
When the couple came to Australia after the marriage, they lived with the wife's parents.  The evidence was that the marriage deteriorated in about August 1995.  The appellant did not like living with his wife's parents.  That much is plain from the evidence before the trial judge.  The close relationship between the appellant's wife and her father was the subject of apparent resentment by the appellant. There were arguments.  Some of this was disputed but the appellant did, in the course of his evidence, admit having slapped his wife on an occasion in late October. 
As to the particular charges of rape, whilst the wife gave evidence of forced sexual intercourse on each of those three occasions, the appellant's evidence was that no intercourse occurred on any of these three occasions referred to in the information.  He denied ever having had forced intercourse with his wife.  It was his evidence that at about 4 am on the morning following the date referred to in the third count, he had consensual intercourse with his wife.  As to the charge of threatening life, the trial judge accepted what the wife had to say and disbelieved the appellant, who denied ever threatening his wife in that way.  He admitted to swearing on occasions, but that was all.
In his reasons for verdicts, the trial judge said that he found the wife's evidence convincing, particularly her explanations when pressed in cross-examination.  His Honour described the wife as "a reliable and careful witness", the appellant "a less than impressive witness".  Early in his reasons the trial judge said that he took particular note of the demeanour of the appellant, and his discomfort with questions which emerged during cross-examination.
His Honour said that in his view the wife told the truth, whilst the accused lied upon the crucial facts where their evidence differed. His Honour made plain that he found that the incidents giving rise to the four counts contained in the information occurred in the manner described by the wife. His Honour acknowledged that this was a case which depended upon the uncorroborated evidence of one witness. After referring to the provision of s34i(5) of the Evidence Act 1929, His Honour said that he was not inhibited from scrutinising the wife's evidence "with reference to the possibility of hidden motives for giving false evidence, or the making of a false allegation.".
His Honour made reference to the remarks of King CJ in Reference Question of Law Number 1 of 1993 , and then said that whilst reviewing the evidence against the observations then made by King CJ, he had "no doubt as to the truth and reliability of (the wife's) evidence".
His Honour said there was no element of fabrication, or exaggeration in what the wife told the court on oath.  It is important to notice that finding against the submissions put to us by Ms Nelson QC, with respect to a diary.  That was the subject of some evidence and powerful submissions to His Honour by counsel for the appellant in the court below.  His Honour spoke of one stage in the course of the wife's evidence where she disclosed what His Honour perceived to be "genuine distress and humiliation".  As to that, His Honour observed that that did not stand in the way of her giving an accurate and complete account of events.  Equally, it appears to me from what His Honour said towards the end of his reasons, that the issue with respect to the diary did not affect the reliability and honesty of what the wife alleged and said in the witness box.
In this appeal it is said that the trial judge should have drawn an inference consistent with innocence, or, at the very least, raised a reasonable doubt.  The trial judge should have drawn an inference adverse to the wife and the prosecution case, in that witnesses capable of corroborating aspects of the wife's evidence were not called.
I deal with this last ground of appeal first.  Besides that of the appellant and his wife, the only other material before the trial judge was contained in statements from a police officer, who put the allegations to the appellant on 18 December 1995, and evidence of a medical practitioner consulted by the wife a day later.  The trial judge properly acknowledged that that evidence was not put forward by the prosecution as advancing the wife's evidence at all.
At the opening of the trial the Prosecutor told the trial judge that the parents of the complainant were available to be called if required.  The prosecution chose not to call the parents.  The defence did not request the Prosecutor to call either parent.  No complaint was made in the trial about the failure to call them.  Plainly submissions were made about the absence of evidence coming from the parents on matters that could have provided some form of support for her story.  I use that language, and not the language of corroboration, to identify  and reject a point sought to be advanced in this appeal.  Corroboration is one thing; evidence which might support some of the wife’s relationship evidence, as it might be called, is another.  To conclude what the Prosecutor told His Honour at the beginning of the trial I refer to the transcript at p53.
Before us Ms Nelson QC referred to evidence which was said to be inconsistent with the truth of the wife's allegations. Submissions were made about the absence of, or a failure to call other evidence.  The presence of four other people in the house when these events were said to have occurred was common ground.  There was no complaint made about the allegations, until after the alleged threat to life, even though the wife agreed she could have gone to the police after the first alleged incident of rape.
Also it was submitted that entries in a diary, regarding the alleged actions of the appellant, were said to have been made the day after each incident, when, in fact, on the face of each diary entry this could not have been so.  Whilst that submission was put to us in this way, again, the trial judge made plain in his own reasons that he, in effect, accepted that submission, but nonetheless made a positive and favourable credibility finding of the appellant, notwithstanding the criticism that was advanced with respect to that.  As counsel for the respondent put it, her evidence about the diary was open to the interpretation of reconstruction by the witness as to what she did, affected perhaps by the agony of the moment, that moment being the giving of evidence and being subjected to cross-examination. Nevertheless, it seems to me that His Honour has made plain that that did not shake his conviction about the truth of what the wife was saying in evidence.
I reject the submission that the trial judge should have drawn an inference adverse to the prosecution case on the basis that witnesses potentially capable of corroborating aspects of the complainant's evidence were not called.
Corroboration is a very demanding concept.  The law is that the wife's evidence did not require corroboration.  The judge acted consistent with authority, by nonetheless adverting to the possibility of fabrication. I add, in addition to the observations of King CJ, cited by the trial judge, those of Duggan J who, with Perry J, comprised the majority with respect to answers given.  Duggan J said :
"It remains appropriate in a sexual case for a trial judge to canvass with the jury the issues such as motives for fabrication, the fact, if it be so, that the case is one of oath against oath and any other factors which might touch upon credibility.
        In many cases of alleged rape within marriage, for example, there may well be reference in the summing up to the cross-currents of emotion, which could be relevant to the assessment of the evidence of the principal participants. In some of these cases it may be necessary to go as far as warning the jury of the dangers of convicting on the evidence in the case, but, as I have attempted to explain, the justification for such a warning would have to depend upon circumstances beyond the mere fact that the complainant was a witness in a sexual case. "
The trial judge was conscious of the need for special care in this case.
Although corroboration was referred to and maintained in submissions before us, I am still far from persuaded that there was any basis upon which one could properly say that there was potentially corroborative evidence available and withheld from the court.  Counsel referred to the fact that the wife had spoken of complaining to her father after 17 December.  The fact is that that complaint, as detailed in the evidence, was not a complaint with respect to a sexual assault.  That complaint would not have been admissible at all, whether particularised by the wife or from the father, had he been called as a witness for the prosecution.  It could never be corroborative of the wife’s evidence.
Nothing can be made of the appellant's assertion that the bedroom door was open, in face of the adverse credibility finding made by the trial judge and the wife's evidence that the bedroom door was closed when the alleged rapes occurred.  It was suggested that if these things had occurred, the parents, whose bedroom shared an adjoining wall with the bedroom occupied by the appellant and his wife, would have heard.  That submission made to us was made to the trial judge.  There was an explanation given by the appellant's wife.  Plainly the trial judge accepted that explanation. It was open to the trial judge to do so.
Reliance was placed upon the well-known principles of Jones v Dunkel .  I cannot see this is a case where the absence of the wife's parents as witnesses for the prosecution called for any adverse inference at all.  Nonetheless, counsel made submissions consistent with that principle.  The prosecution made plain the parents were available if required. In that situation I see no objection to what occurred nor any basis upon which this court should feel troubled by the course taken in the trial at the hands of the prosecution or in the ultimate decision of the trial judge.
The assumption to be made with respect to the proximity of bedrooms was plainly that the evidence from the parents would be to the effect they heard nothing by way of noise coming from the marital bedroom.  In that sense the evidence would have been favourable to the defence and that submission, as I say, was clearly put in the course of the trial. That evidence was, nonetheless, consistent with the prosecution's case as much as that of the respondent's.  It was not made clear as to how the evidence of the wife about blood being on the bed linen could have been supported in any way by a witness not called by the prosecution. Reference was made to that in Ms Nelson QC's outline of submissions. She did not pursue the matter before us.  I repeat, in my view I cannot identify any material that could be said to be corroborative.  Again, it is the law that corroboration is not required.
In all the circumstances, I am not persuaded that any other witness could have given corroborative evidence or evidence of some substantial significance to buttress the credit of the wife.  The fact is that the law does not require corroboration of her evidence.  The trial judge properly understood and applied the law to the facts as they were before him. 
I reject the argument advanced that the trial judge should have drawn an inference consistent with innocence or at the very least raised a reasonable doubt. The trial judge was said to have placed too much emphasis on his preference for the wife's evidence.  I think preference is one thing.  Disbelief of the appellant is another.  I agree with the respondent's submission this ground almost implies that because the only evidence for the prosecution came from the wife the trial judge should have entertained a reasonable doubt.  Such a submission is misconceived. 
The complaint that a verdict is unsafe and unsatisfactory calls for this court to review the evidence conscious of the advantage the trial judge had in seeing and hearing the witnesses. It is for this court to consider whether there is a significant possibility that an innocent person has been convicted.  On the whole of the evidence was it open to the trial judge to be satisfied beyond reasonable doubt that the accused was guilty ?  This is a case where the trial judge, as the fact finder, had the advantage of hearing the evidence as it was given and assessing the demeanour of the appellant and his wife. That critical advantage is not shown to have been palpably misused by any of the reasons His Honour gave for finding the charges proved upon evidence which he found to be convincing and reliable.  I add a reference to Knight v R , with respect to demeanour.  I reject the complaint that the verdict is unsafe and unsatisfactory.  In my view, the appeal should be dismissed.

Perry J
In my opinion no ground has been made out upon the basis of which it would be proper to interfere with the conclusions reached by the learned trial judge.  I agree substantially with the reasons given by Prior J and that the appeal should be dismissed

Duggan J
I agree that the appeal should be dismissed for the reasons given by Prior J. I add that in view of the ground of appeal that the verdicts are unsafe and unsatisfactory I have considered for myself, the matters which the High Court laid down in M v R as being necessary to take into account by members of an appellate court when considering such a ground.  As I have said, however, I agree that this ground, and the  grounds of the appeal, have not been made out.
Prior J
Order of the court is therefore appeal dismissed.

JUDGMENT CITATIONS LISTED IN ORDER OF APPEARANCE IN JUDGMENT OWING TO FAILURE OF FOOTNOTE TRANSFER TO JURIS

(1993) 59 SASR 214 at 218

1. (1993) 59 SASR 214 at 235

2. (1959) 101 CLR 298

3. M v R (1994) 181 CLR 487, at 494 and 495

4. (1992) 175 CLR 495 at 512