R v Pollitt
[2007] SASC 103
•29 March 2007
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v POLLITT
[2007] SASC 103
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Gray and The Honourable Justice White)
29 March 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT
Appellant found guilty by a jury of one count of attempted abduction with the intention to have sexual intercourse, and one count of indecent behaviour - consideration of the history and elements of the offence of attempted abduction - s 59 Criminal Law Consolidation Act 1935 - whether sufficient evidence upon which jury could be satisfied beyond reasonable doubt that the incidents had occurred and if so, that the appellant had attempted (a) to take the complainant by force (b) with the intention of having sexual intercourse with her - whether the trial judge adequately directed the jury in relation to the specific intent required - whether verdicts safe in light of the evidence of one witness.
Held: (by majority) sufficient evidence upon which the jury could be satisfied beyond reasonable doubt that all elements of the offence proved - (by majority) the trial judge erred in failing to direct the jury adequately in relation to intention to have sexual intercourse - appeal allowed and (by majority) retrial ordered in relation to the offence of attempted abduction - (unanimously) appeal dismissed in relation to offence of indecent behaviour.
Criminal Law Consolidation Act 1935 (SA), s 4, s 48, s 59, s 270A; Summary Offences Act 1953 (SA), s 23; Evidence Act 1929 (SA), s 34; Sexual Offences Act 1956 (UK), s 17, referred to.
R v Morris (1987) 163 CLR 454; R v Manwaring [1983] 2 NSWLR 82; R v Storey (1978) 140 CLR 364; R v Wellard [1978] 3 All E R 161; R v Campbell and Brennan (1981) Qd R 516; Stephens v The King (1929) 32 WALR 9; TKWJ v The Queen (2002) 212 CLR 124; Nudd v The Queen [2006] HCA 9; R v Birks (1990) 19 NSWLR 677; Griffiths v The Queen (1994) 69 ALJR 77; R v Billick (1984) 36 SASR 321, applied.
Maric v The Queen (1978) 52 ALJR 631; R v Rowley (1986) 23 A Crim R 371; R v Penney [1997] SASC 6071; R v Ayles (1993) 66 A Crim R 302; R v Rankine [1993] SASC 3990; R v Hussey (1980) 23 SASR 178; R v Webb (1996) 186 LSJS 184; Leuschel v Police (1999) 75 SASR 231; R v O'Neill (2002) 81 SASR 359; R v IAS (2004) 89 SASR 159; Papastamatis v Police (2003) 85 SASR 241; R v Winters [1998] SASC 6595; R v Gillard (2003) 219 CLR 1; R v Chapman [1959] 1 QB 100; R v Jones [1973] Crim LR 710; Question of Law Reserved on Acquittal (No 2 of 1993) (1993) 61 SASR 1, considered.
R v POLLITT
[2007] SASC 103Court of Criminal Appeal: Duggan, Gray and White JJ
DUGGAN J. The facts of this matter are set out in the judgment of White J.
I am in complete agreement with the view expressed by White J that the verdicts are not rendered unsafe by reason of the evidence of Mr Williams.
The next question is whether a reasonable jury could be satisfied beyond reasonable doubt of that element of the offence of attempted abduction which requires the use of force.
In my view, there was sufficient evidence of the intended use of force in order to take the complainant away from the place where she wanted to remain. It is clear that the appellant wanted her to get into his car. When she refused, the appellant got out of the car, walked to the rear of the vehicle, exposed himself and said “Get in the fucking car”. The complainant said she moved to her left to try and move away and the appellant grabbed her bag and threw it against the car. The complainant was asked about her reaction to this and she said:
Well, I thought that he went to grab me, so I jumped up and then he took a step towards me to get me and I pulled my scissors out my pocket and I said “Fuck off or I will stab you”.
The appellant persisted and, as he left, he said “I will be back to get you, you little slut”.
In my view, the demeanour of the appellant, his insistence that the complainant get into the car, his intimidating demand that she enter the vehicle, his actions in stepping towards her when she refused and his apparent decision to desist only when he was threatened with the scissors, provided a sufficient basis for the jury to infer that his intention was to use physical force to get her into the vehicle.
The further element of the offence of abduction is the requirement that the appellant intended to have intercourse, as defined in s 4 of Criminal Law Consolidation Act 1935, with the complainant. At the hearing of the appeal, the court invited argument as to whether there was sufficient evidence to support a finding by the jury that this element of the offence had been proved.
In order to answer this question, it is necessary to consider the combined effect of the circumstances deposed to by the complainant. In particular, it is of relevance to take into account the appellant’s insistence that the complainant enter the car, the exposure of the appellant’s penis which discloses an obvious sexual purpose and his reference to the complainant as a “slut”.
It is clear to my mind, that the appellant intended to continue with his sexual purpose and that this required the presence of the complainant in the vehicle. There was a preparedness to use force in order to achieve his object. Although the evidence to support the inference is not particularly strong, I think there was enough upon which the jury could find the necessary intention to have sexual intercourse with the complainant.
However, it is also necessary to consider whether the instructions to the jury on the element of intention to have intercourse were adequate. In considering this question it is important to have regard to the conduct of the trial by the prosecution and the defence.
The central issue of contention in the trial was whether the appellant was involved in the incident. He denied involvement and the defence placed considerable emphasis on the evidence of Mr Williams in support of the argument that the appellant could not have been at the scene at the relevant time.
Despite the conduct of the defence case and the emphasis which it placed on a complete denial of involvement, it remained for the jury to decide whether it had been established beyond reasonable doubt, not only that the appellant was present, but that the elements of the offences were satisfied. In the case of attempted abduction, the elements of the offence included the intention to have intercourse. I agree with White J’s conclusion that the conduct of the defence case did not remove this issue from the jury. If the jury were satisfied that the complainant’s version was truthful and accurate, it became necessary to consider whether the circumstances supported the inference beyond reasonable doubt that the appellant intended to have sexual intercourse with the complainant. It would not be enough for the prosecution to prove a sexual purpose which did not include sexual intercourse as defined in the Criminal Law Consolidation Act 1935.
In his opening address, the prosecutor quite properly told the jury that the offence involved taking the complainant away by force “with the intent to have sexual intercourse with her”. He went on to say:
Briefly, you’ll see that count 1, the first charge that has been mentioned, talks about an attempted abduction. The prosecution for this charge must prove that on this day, 29 June, at Greenock, the accused attempted to take [the complainant] away by force. I’ll repeat that; the accused attempted to take [the complainant] away by force with the intent to have sexual intercourse with her.
The prosecution say that the accused’s behaviour at the bus stop of stopping, demanding that she get in, approaching her, obviously to take her physically to his car which was only repelled by her holding up her scissors, was the attempt to take her by force to his car. The prosecution say that the obvious sexual element or overtones to this behaviour can be gleaned by him exposing his penis completely to her.
As I have pointed out, the prosecution evidence would have to go beyond proof of a general sexual purpose or the existence of a sexual overtone. The intention required is more specific and required proof that the appellant intended to have intercourse with the complainant.
The closing addresses of both counsel concentrated on the question whether the complainant’s version was truthful and accurate and, in particular, whether the appellant was the person involved. The prosecutor made no submissions to the jury on the evidence which might support a finding that the intention of the appellant was to have intercourse with the complainant.
In his address to the jury, Mr Borick QC, for the appellant, submitted that the prosecution had not proved that the appellant was involved in the incident. At the conclusion of his address he said:
[The trial judge’s] directions on the law are a little difficult in this case because you haven’t been told much about what the law is from the prosecution and there is nothing really that I can deal with here because the case that I put forward for my client, his case is that he wasn’t there so I don’t have to deal with the law of attempt or the law of abduction but his Honour will have to.
You’ll have to listen carefully because the law of what amounts to an attempt and what amounts to abduction is not straightforward.
The other task that his Honour has in his direction is to remind you of the two fundamental features of our criminal law. The first is the presumption of innocence. You, as the jury, have to give Mr Pollitt that and the second is proof beyond reasonable doubt. Nothing else will suffice, so unless you can say that, beyond reasonable doubt we accept that woman and we totally reject what Williams says, only then can you convict Mr Pollitt and the defence say that that would be an impossibility.
I do not understand Mr Borick’s last comment to be a concession that there was sufficient proof of a forcible taking with the intention to have intercourse with the complainant. In my view, he was doing no more than saying that a finding that the offence had been committed could not be made without a total rejection of Mr Williams’ evidence.
In his summing-up the trial judge confined his remarks on the intention to have intercourse to the following directions:
The next element of this offence of abduction is that the Crown must prove not only that he intended to take [the complainant] by force into the car, but that he did so for the purpose of having sexual intercourse with her.
Sexual intercourse in this context has a wider meaning than you may think. It is including any activity consisting of or involving penetration of the vagina or anus of a person by any part of the body of the accused and it also includes the acts of fellatio or cunnilingus.
In this matter the Crown point to an intention to have sexual intercourse as being proved by the exposure of the penis and testicles by the accused which they say show the true purpose behind the actions of the accused. If you are satisfied beyond reasonable doubt that this was an attempted abduction, then that is evidence from which you could infer the purpose or intention of the attempt. That is, in some way the intention to have sexual intercourse.
In a case in which an attempt to commit an offence is charged, the task of the jury in inferring a specific intention is often difficult, and this was such a case. The completed offence had not been committed and it was necessary to determine whether the intent could be inferred from actions which did not constitute the completed offence.
In these circumstances, it was necessary for the jury’s attention to be directed with some precision to the evidence upon which the necessary inference might be drawn. Furthermore, it is my view that the particular circumstances of the case required a direction that it was not enough for the prosecution to prove a general sexual purpose, as opposed to the specific purpose of sexual intercourse.
In my view, the act of exposure was insufficient, by itself, to establish the intention to abduct the complainant for the purpose of having sexual intercourse with her. I think it was necessary for the jury to be instructed to consider that act along with the sequence of events which, according to the complainant, took place. As I have said, it was appropriate to bring to the jury’s attention to the fact that a general sexual purpose which did not necessarily involve sexual intercourse was insufficient to prove this element of the offence.
Although the trial judge dealt with the circumstances as deposed to by the complainant when considering the element of attempted force, the tenor of his remarks on the purpose of the abduction was that the act of exposure, by itself, could establish the intention to abduct for the specific purpose of sexual intercourse. These remarks are to be considered in the context of a trial in which counsel for the prosecution and the defence made no comment on the facts relating to the intention to have sexual intercourse, with the exception of the prosecutor’s remark that “the obvious sexual element or overtones to his behaviour can be gleaned by him exposing his penis completely to her”.
There is no doubt that the exposure of the appellant’s penis gave rise to a sexual element in his behaviour. However, as I have attempted to point out, this did not necessarily lead to the conclusion that the appellant attempted an abduction for the purpose of sexual intercourse. It was necessary for the jury to receive more instruction on this essential element of the charge.
For these reasons, I am of the view that the conviction for attempted abduction should be set aside and a re-trial on that offence ordered.
I would dismiss the appeal against the conviction on the charge of indecent behaviour.
GRAY J:
Introduction
On 15 September 2006, the defendant and appellant, Ian Gerald Pollitt was convicted by jury verdict of the offences of attempted abduction and indecent behaviour.
The Information alleged:
Attempted Abduction. (Section 59A and Section 270A of the Criminal Law Consolidation Act, 1984).[1]
Particulars of Offence
Ian Gerald Pollitt on the 29th day of June 2005, at Greenock, attempted to take [the complainant] away by force with intent to have sexual intercourse with her.
Indecent Behaviour (Section 23 of the Summary Offences Act, 1953).
Particulars of Offence
Ian Gerald Pollitt on the 29th day of June 2005, at Greenock, behaved in an indecent manner, by exposing his penis, in a public place.
[1] This is a reference presumably to section 59(a).
The facts have been set out in the reasons of White J. I refer to the facts only where necessary for the understanding of my reasons.
The Prosecution Case
On the prosecution case, the defendant attempted to abduct the complainant from a bus stop at Greenock at about 7.30am on 29 June 2005. It was said that he did so intending to have sexual intercourse with her. The complainant was aged 16 years and was on her way to school. It was said that the defendant was driving through Greenock and stopped his vehicle at the bus stop. He alighted. The defendant exposed his genitals to the complainant and repeatedly demanded that she get in his vehicle. He referred to her in sexually disparaging terms. The defendant only desisted in his approaches to the complainant when she threatened to stab him with a pair of scissors. He then drove away. On the prosecution case, there was an obvious sexual overtone to the attempted abduction.
The complainant made an immediate complaint about what had happened. She sent her boyfriend a text message and then contacted the police. The police on attendance, observed the complainant to be distressed.
At the time of the incident, the complainant made a note of the registration number of the vehicle. That vehicle was registered to the defendant. The complainant later identified the defendant from photographs.
The complainant provided evidence as to the time over which the entire incident had occurred. She estimated that between 90 and 120 seconds passed between the defendant’s vehicle stopping and then being driven away after the incident. The complainant said that she was very scared and in shock. She had not kept track of time and indicated that her estimates were approximations.
The complainant gave a description of her assailant that was generally consistent in a number of respects with the appearance of the defendant. This included height, facial hair and clothing, including the wearing of a cap. As earlier observed, she later identified the defendant from a photograph.
John Williams had driven past the complainant very shortly before the attack. He was driving a Kombi van at a slow speed and saw the defendant’s vehicle approaching the location of the complainant. On the evidence of Mr Williams, the defendant was as close as approximately 30 metres behind him at about the time that Mr Williams drove past the complainant.
The Defence Case
The defendant gave evidence. In substance, he recalled driving through Greenock at about 7.30am on 29 June 2005. He gave evidence that he did not stop and had no contact of any sort with the complainant. That evidence accorded with the tenor of his police interrogation. The defendant also tendered a video showing generally the route that he travelled that day. Cross- examination of the complainant elicited a history of dishonesty, including the making of a bomb hoax.
The Offence of Attempted Abduction
Before coming to discuss the course of the trial and the summing up, it is convenient to discuss the terms of section 59 of the Criminal Law Consolidation Act 1935 (SA). That section provides:
A person who takes away by force, or detains against his will, any other person—
(a) with intent to marry, or to have sexual intercourse with, that other person; or
(b) with intent to cause that other person to be married to, or to have sexual intercourse with, a third person,
is guilty of an offence.
It is to be observed that section 59 has its origins in the eighteenth century. This Court in Hussey,[2] discussed the legislative history of the section. Jacobs J referred to that history in the following terms: [3]
But there can be no doubt from the language of the section, and in particular the reference to taking by force for the purpose of marriage, that its origins can be traced to the Statute on Forcible Marriage, 3 Hen. 7 Ch. 2, a statute designed for the protection of heiresses: Hawkins (1824), vol. 1, p. 123. It may be doubted whether the conduct of which the present applicant is guilty was ever an offence at common law, except in so far as it involved an assault, although it would be a rare case in which either the taking of a person or his detention against his will was not accompanied by some force or threat of force amounting to an assault (Roscoe's Criminal Evidence, 16th ed. (1952), p. 337).
It is not necessary for present purposes to trace in detail the subsequent statutory development of the offence of forcible marriage. It found expression in s 53 of the Offences Against the Person Act, 1861 (UK), to which was added the offence of fraudulently taking or detaining a woman under the age of twenty-one out of the possession and against the will of her father or mother for the purposes of marriage or sexual intercourse, although again, the concept of protection of heiresses was preserved by a provision which rendered any person convicted of an offence against the section incapable of taking any estate or interest in any real or personal property of such a woman. At the same time, there was added the more general offence of taking or detaining any woman by force and against her will with intent to marry or have sexual intercourse (s 54). That was the prototype of s 60 of the Criminal Law Consolidation Act, now repealed. One of the underlying concepts in the offence of forcible marriage is, of course, now obsolete, for a married woman's property no longer vests in her husband. The offences of forcible marriage and forcible abduction are therefore now combined in England in s 17 of the Sexual Offences Act, 1956, which makes it an offence for a person "to take away or detain a woman against her will with the intention that she shall marry or have unlawful sexual intercourse if she is so taken away or detained either by force or for the sake of her property or expectations of property."
[2] R v Hussey (1980) 23 SASR 178.
[3] R v Hussey (1980) 23 SASR 178 at 183-184.
Section 17(1) of the Sexual Offences Act 1956 (UK), referred to by Jacobs J, was then in the following terms: [4]
It is an offence for a person to take away or detain a woman against her will with the intention that she shall marry or have unlawful sexual intercourse with that or any other person, if she is so taken away or detained either by force or for the sake of her property or expectations of property.
[4] Sexual Offences Act 1956 (UK).
Archbold’s Criminal Pleading Evidence & Practice commentary includes the following:[5]
“Unlawful” sexual intercourse in section 17 (1) means “illicit” sexual intercourse (i.e. outside the bond of marriage), see R. v. Chapman [1959] 1 Q.B. 100. Accordingly, an intention to commit rape is not a necessary ingredient for an offence of abducting, by taking away a woman for unlawful sexual intercourse: R. v. Jones [1973] Crim.L.R. 709, C.A.
[5] Archbold, Criminal Pleading Evidence & Practice (42nd ed, 1985) §20-395, §20-397.
Chapman[6] involved the interpretation of the words “unlawful sexual intercourse” in section 19 of the Sexual Offences Act 1956 (UK). Donovan J, speaking for the Court, observed:[7]
We reject the argument that in section 19 of the Act of 1956 the word “unlawful” connotes intercourse contrary to some positive enactment. The argument, at once, prompts the question why, if the intercourse in question is already positively forbidden, section 19 should do it again. The answer suggested on behalf of the appellant is that under section 19 the law can step in before unlawful intercourse actually occurs and so prevent the mischief. This is perhaps a little imaginative when one considers the circumstances of most abductions; but the answer seems to us to be this: the plain purpose of section 19 is to protect young unmarried girls. That protection would be largely, if not wholly, illusory if in every case it were incumbent on the prosecution to prove that she was taken from her parents for the purpose of intercourse of a kind positively forbidden by some enactment, and not for intercourse not so forbidden. We do not think that such can have been Parliament’s intention.
...
If the two interpretations suggested for the appellant are rejected, as we think they must be, then the word “unlawful” in section 19 is either surplusage or means “illicit.” We do not think it is surplusage, because otherwise a man who took such a girl out of her parents’ possession against their will with the honest and bona fide intention of marrying her might have no defence, even if he carried out that intention. In our view, the word simply means “illicit,” i.e., outside the bond of marriage. In other words, we take the same view as the trial judge. We think this interpretation accords with the common sense of the matter, and with what we think was the obvious intention of Parliament. It is also reinforced by the alternatives specifically mentioned in sections 17 and 18 of the Act, that is, with the “intent that she shall marry, or have unlawful intercourse ..”
[6] R v Chapman [1959] 1 QB 100.
[7] R v Chapman [1959] 1 QB 100 at 104-105.
The decision of Jones[8] is only reported as a case-note in the following terms:[9]
Court of Appeal (Criminal Division): Lord Widgery C.J., James L.J. and Phillips J.: The Times, August 1, 1973.
J was convicted of abduction by taking away a woman for unlawful sexual intercourse contrary to section 17(1) of the Sexual Offences Act 1956. He forced a girl aged 17 into his car, his intention being to have sexual intercourse with her. She managed to escape. The judge directed that an intent to rape was not necessary.
Held, dismissing the appeal, the direction was right. Unlawful in the section meant illicit. Considering section 19 of the Act, Chapman (1959) 42 Cr.App.R,. 257 and section 24 of the Offences against the Person Act 1861. [W. G.]
Commentary. If it had been intended that an intention to rape should be required, the section would surely have said so. The term “rape” is used in section 1 of the Act and the expression “unlawful sexual intercourse” is used in several other sections where it is plainly not intended to mean rape. It appears that, for the purposes of the Act, all sexual intercourse outside matrimony is “unlawful.”
[8] R v Jones [1973] Crim LR 710.
[9] R v Jones [1973] Crim LR 710 (footnotes omitted).
The decisions of Chapman and Jones are relevant to the interpretation of section 59. The reference to “intent to have sexual intercourse” should be interpreted as having the same effect. This interpretation is further supported by the absence of the word “unlawful” in section 59.
Counsel for the defendant submitted that the reference in section 59 to “intent to have sexual intercourse” was a reference to “intent to rape”. Having regard to the history of section 59 and the interpretation of its progenitors, this submission should be rejected.
It is to be observed that section 59 also includes the word “force”. As Jacobs J noted in Hussey, this is a reference to force or a threat of force amounting to an assault. In this context it is relevant to note that the term “assault” can be used to include both an assault and a battery. This can lead to confusion between the two offences. An assault is an independent offence. An assault is any act by which a person intentionally or recklessly causes another to apprehend immediate and unlawful violence. The act must be accompanied by a hostile intent calculated to cause apprehension in the mind of the victim.
The Course of the Trial
Evidence Excluded as a Matter of Discretion
At the outset of the trial, counsel for the defendant raised a preliminary issue. Apparently, counsel had been informed that the prosecution wished to tender material found by the police on attending the defendant’s home. That material included a book described by counsel for the prosecution as being probative of the defendant’s intentions:
I’m seeking to lead the book about an abduction on a New York model from her apartment block and, to put it bluntly, it’s a pornographic book where she is – and I use this word as it’s used in the book – frigid and she turns – another word which is used in the book – into a nympho.
...
That is a book, as I’ve just described, with that basic plot, with lurid sexual acts being described in the book. Basically, turning the model from someone who was very frightened about sexual episodes into someone that loves them and that her captor was the subject of her affections. The person that kidnapped her ended up –
...
[T]hat was found on the day that the attempted abduction occurred and which is in line with the Crown case. It was done on the Crown case obviously for a sexual purpose.
Defence counsel in support of the application to exclude the book submitted that the only possible relevance of the book to the case was to show propensity. The Judge commented:
There is a propensity aspect to it – I don’t think [counsel for the prosecution] suggests otherwise – but they suggest there is another purpose; namely, to prove the sexual motive behind the attempted abduction which is a necessary element they have to prove.
Later in the course of argument, the following interchange took place between defence counsel and the trial Judge:
His Honour: All evidence is prejudicial if it’s relevant, by its nature. What do you say is the intrinsic prejudice of the book?
Defence counsel: You haven’t heard anything from the accused as to where it was. They are saying it was found on the day. The police have to say where it was. They will be forced to read it against his or her will; by the end of the book they will think ‘Well, he is the cause of me having to read this. Occluding my mind’. That’s all – it has got no other relevance to this case.
His Honour: I don’t want to be flippant about it either. What you’ve got is a serious allegation. Your client stopping, effectively attempting to abduct and exposing himself. You’ve got a book which I don’t think goes to the question of exposure but it goes to the question of abduction in a sexual context and the Crown have to prove beyond reasonable doubt that this was not just a flashing. For example, the jury could find it occurred, that your client pulled up and exposed himself but had no intention of dragging her into the car.
Defence counsel: In my view, it’s a little unreal. If the jury find this happened and he exposed himself, [sic of] course it’s got a sexual content. By exposing himself and ‘Get into the fucking car’, what was he wanting [sic – her] to ‘Get into the fucking car’ for?
His Honour: You say it follows.
Defence counsel: It follows.
His Honour: No need to elaborate.
Defence counsel: Yes.
It would appear that at this time defence counsel conceded that if the jury accepted the complainant’s evidence that the defendant had conducted himself in the way that she described, it followed that the relevant intent was made out. However, it is to be acknowledged that the exchange was not explicit. There was the possibility of confusion and ambiguity.
Following this exchange, and later during the trial, the Judge in the exercise of his discretion ruled that he would not permit the book to be tendered.
The prosecutor opened this aspect of the case as follows:
Briefly, you’ll see that count 1, the first charge that has been mentioned, talks about an attempted abduction. The prosecution for this charge must prove that on this day, 29 June, at Greenock, the accused attempted to take [the complainant] away by force. I’ll repeat that: the accused attempted to take [the complainant] away by force with the intent to have sexual intercourse with her.
The prosecution say that the accused’s behaviour at the bus stop of stopping, demanding that she get in, approaching her, obviously to take her physically to her [sic – his]car which was only repelled by her holding up her scissors, was the attempt to take her by force to his car. The prosecution say that the obvious sexual element or overtones to this behaviour can be gleaned by him exposing his penis completely to her.
These opening remarks almost immediately followed the exchange between defence counsel and the trial Judge.
No Case to Answer
At the conclusion of the prosecution case, counsel for the defendant submitted that there was no case to answer having regard to the evidence of Mr Williams and the estimates of the duration of the incident as given by the complainant. The defendant’s case was that it was not possible for the defendant to stop his vehicle, undertake the conduct alleged and then catch up to Mr Williams and pass him at the point that Mr Williams claimed.
The test to be applied when considering a no case submission is well settled.[10] On the assumption that all the evidence of primary fact considered at its strongest from the point of view of the prosecution is accurate, and on the further assumption that all inferences available to the prosecution which are reasonably open, are drawn, the question is - in the mind of a reasonable person is the evidence capable of proving the guilt of the defendant beyond a reasonable doubt?
[10] R v Billick (1984) 36 SASR 321 at 385 – referred to with approval in Question of Law (No 2 of 1993). (1993) 61 SASR 1 at 4-5.
In the circumstances of the present case, there was a case to answer. The complainant had provided a description of her assailant consistent with the appearance of the defendant, including the clothing that he had been wearing, she had identified the defendant from photographs and had noted the registration number of the defendant’s vehicle. There was no dispute that the defendant had driven past on the morning in question.
Any shortcomings in the complainant’s description of her attacker compared to the appearance of the defendant were minor and explained by the nature of the incident. The fact remained that the complainant selected the defendant’s photograph and noted the registration number of his vehicle. In addition, the complainant’s prior character could not, of itself, undermine the balance of the prosecution case.
The evidence of Mr Williams did not lead necessarily to the conclusion that the offence could not have been committed. The evidence of time and speed were no more than estimates. Such estimates may be unreliable – that is notorious. If Mr Williams’ evidence was accurate, then the defendant would have reached the complainant moments after Mr Williams had gone past her. That being so, it was open for a jury to conclude that there was sufficient time for the defendant to stop, commit the offences and then pass Mr Williams at the point that Mr Williams alleged.
During the no case submission, nothing was said about the elements of force and intent. This was understandable if one has regard to the apparent concessions made by defence counsel.
Final Submissions and Summing Up
In the course of his final address, counsel for the prosecution was even shorter than in opening on the topic of intent. He said:
And he tried to get her into the car. And that, members of the jury, if you accept what her description is of that, in my submission, that proves the charges against the accused beyond reasonable doubt.
Defence counsel in his final address did not deal directly with the issue of intent to have sexual intercourse at all, and was content to put to the jury:
[The Judge’s] directions on the law are a little difficult in this case because you haven’t been told much about what the law is from the prosecution and there is nothing really that I can deal with here because the case that I put forward for my client, his case is that he wasn’t there so I don’t have to deal with the law of attempt or the law of abduction but his Honour will have to.
You’ll have to listen carefully because the law of what amounts to an attempt and what amounts to abduction is not straightforward.
The other task is that his Honour has in his direction is to remind you of the two fundamental features of our criminal law. The first is the presumption of innocence. You, as the jury, have to give [the accused] that and the second is proof beyond reasonable doubt. Nothing else will suffice, so unless you can say that, beyond reasonable doubt we accept that woman and we totally reject what Williams says, only then can you convict [the accused] and the defence say that that would be an impossibility.
[emphasis added]
This portion of defence counsel’s final address appears to accord with his exchange with the Judge at the time of the challenge to the admissibility of evidence of the book.
The directions of the trial Judge with respect to the elements of force and intent on the charge of attempted abduction included the following:
The elements in relation to count [one] are that there must be an attempt to abduct [the complainant]. There are two aspects to this and as [counsel for defence] has already highlighted in his address, they are not necessarily straightforward. The Crown must first establish that the accused intended to commit the particular crime of abduction. Then, the Crown must establish that the accused, to prove an attempt, did some act towards committing the intended crime and which was immediately connected with committing the crime and which cannot be reasonably regarded as having any purpose other than to commit the crime of abduction. That is important in this case for reasons that I will get to in a minute. So I will just repeat that to you. There are two aspects to just the first element. It is incumbent on the Crown to prove beyond reasonable doubt that the accused intended to commit abduction and, secondly, they have to prove beyond reasonable doubt the attempt. That is, he did some act towards committing the intended crime which was immediately connected with committing that crime and cannot reasonably be regarded as having any purpose other than committing the crime.
An abduction is simply a taking away by force and that is what is alleged here, by force. The force required is not necessarily physical violence but it is sufficient, whatever is done, to take the victim against her will. For example, pointing a pistol at someone may be sufficient to have them get in the car, that would be taking by force, even though there is no physical violence. You must remember in this case there is no suggestion of a weapon of any kind.
...
The next element of this offence of abduction is that the Crown must prove not only that he intended to take [the complainant] by force into the car, but that he did so for the purpose of having sexual intercourse with her.
Sexual intercourse in this context has a wider meaning than you may think. It is including any activity consisting of or involving penetration of the vagina or anus of a person by any part of the body of the accused and it also includes the acts of fellatio or cunnilingus.
In this matter the Crown point to an intention to have sexual intercourse as being proved by the exposure of the penis and testicles by the accused which they say show the true purpose behind the actions of the accused. If you are satisfied beyond reasonable doubt that this was an attempted abduction, then that is evidence from which you could infer the purpose or intention of the attempt. That is, in some way the intention to have sexual intercourse.
With respect to count two, the trial Judge provided the following direction:
The second offence, ladies and gentlemen, is indecent behaviour in a public place. The first element is that the behaviour must be in a public place, and not surprisingly, I direct you that the bus stop and road area at Greenock is a public place. So if you find the act occurred beyond reasonable doubt then you would have no difficulty in finding this element proved.
Here the act alleged is that the accused exposed his penis and testicles. So what does ‘indecent’ mean in this context? The word indecency is a word which is well-known to all of us. Obviously there are many kinds of conduct. Average people might differ as to what is and what is not indecent.
Some things might be a matter of taste but putting those matters aside, there are other kinds of conduct which by any reasonable contemporary standards can only be described as indecent and that is a matter for you as the members of the jury to decide by reference to those standards whether you consider any conduct proved in this case to have been indecent. It is a matter for you, ladies and gentlemen, but it is not here simply a question of exposure of the penis and testicles. It is the surrounding circumstances that are at least as important, that is, exposing the penis and testicles to a young girl in the main street.
For example, if all that was alleged was that the accused had perhaps exposed himself to urinate against a tree in a public place, it might be another offence but you might not think that is indecent behaviour in the circumstances. It is not the allegation here. If you accept beyond reasonable doubt the allegations of [the complainant], then it was exposure of penis and testicles to a young girl in that area and it is a matter for you as to whether you consider that indecent by contemporary standards.
Issues Arising on the Appeal
On appeal, it was complained that there was inadequate evidence of force or of the defendant’s intent to have sexual intercourse, to establish those elements of count one. Counsel for the defendant submitted that the evidence fell short of proving either element beyond reasonable doubt.
Counsel for the Crown submitted that on the evidence the jury were entitled to infer that the defendant had attempted to force the complainant into his vehicle for the purpose of sexual intercourse. That inference was open, counsel said, having regard to the following evidence:
-the complainant was a young woman waiting alone at a bus stop;
-the defendant had regularly attempted to interact with the complainant on prior occasions even though she never reciprocated;
-the defendant stopped and offered the complainant a lift;
-the defendant told the complainant to – “get in the fucking car”;
-the defendant became aggressive;
-the defendant got out of his vehicle although the complainant had repeatedly refused to get into the vehicle;
-the defendant, having exited his vehicle, made a further demand that the complainant get into the vehicle, and the defendant then exposed his genitals;
-the defendant threw the complainant’s bag over towards his vehicle, perhaps in an effort to have her retrieve her bag and therefore go closer to the vehicle;
-the defendant stepped towards the complainant so that she formed the impression that he was going to grab her;
-the defendant desisted only when the complainant threatened to stab him with a pair of scissors;
-the defendant referred to the complainant in a sexually disparaging way – as a slut - and threatened to return to get her.
As earlier observed, the elements of force and intent received little attention from either counsel in their final addresses. The issues were only addressed briefly by the Judge in his summing up. This situation in my view may be explained by the apparent concessions made at the time of the evidentiary argument at the start of the trial.
The evidence of the complainant disclosed an attempt to take by force. Force is to be understood as a hostile intent calculated to cause apprehension in the mind of a complainant, together with the acts that caused the complainant to apprehend immediate and unlawful violence. I agree with Duggan J that there was sufficient evidence of the intended use of force. I also consider that there was sufficient evidence of the use of force if the jury accepted the complainant’s account of what had occurred.
The issue of the defendant’s intent was for the jury to resolve. The jury had to be satisfied beyond a reasonable doubt that the intent of the defendant was to have sexual intercourse with the complainant.
Assuming the exchange between defence counsel and the Judge involved a concession about intent, the issue still remained one for the jury. However, as earlier observed, the concession by defence counsel was not explicit. There was the possibility of confusion and ambiguity. The terms of the concession should have been clarified. Had that occurred, the jury could have been informed by the Judge of the concession, its precise terms, and then directed as to the use that could be made of the concession in their consideration of the element of intent. The question for the jury would then be - having regard to the concession and all of the other evidence of the trial were they satisfied that the relevant criminal intent of the defendant had been established beyond a reasonable doubt?
It was important that the jury be directed in clear and unequivocal terms about the element of intent. That did not occur in this case.
The evidence identified by counsel for the Crown, and referred to earlier was, if accepted, sufficient to sustain a conviction on the charge of attempted abduction. The conduct of the defendant in the exposure of his genitals indicated a sexual purpose. This exposure was accompanied by directions to the complainant to get into the car. The attempt to grab the complainant following exposure is further evidence of the defendant’s intent as was his reference to the complainant as a “slut”.
These circumstances called for a clear direction about the element of intent and the evidence to be considered and weighed by the jury on that topic. Directions were required to assist the jury on how they might deal with circumstantial evidence and the inference to be drawn from that evidence. There should also have been a direction about any concessions made by the defence and as earlier observed, if there was any confusion and ambiguity about any concession, that matter should have been clarified with the counsel.
I agree with Duggan J that the terms of the Judge’s directions on intent were inadequate. I have reached the conclusion there is a risk that a miscarriage of justice may have occurred with respect to the charge of attempted abduction with intent to have sexual intercourse.
Unsafe Verdicts
The defendant complained that both verdicts were unsafe and unsatisfactory. In this respect reliance was placed on the evidence of Mr Williams and the complainant’s evidence as to the time of the events. White J has dealt with this issue in detail in his reasons and I agree with those reasons and with the conclusion that this ground of appeal should be rejected.
Conclusion
I would set aside the verdict on count one and order a re-trial. I would dismiss the appeal against conviction on count two.
WHITE J: The appellant was found guilty by a jury of two offences committed at Greenock on 29 June 2005. The first was an offence of attempted abduction, contrary to ss 59(a) and 270A of the Criminal Law Consolidation Act 1935 (SA) (“CLCA”), and the second an offence of indecent behaviour contrary to s 23 of the Summary Offences Act 1953 (SA) (“SOA”).
The appellant appeals to this Court on three grounds. The grounds of appeal, as amended after the presentation of the original argument, are that the trial judge erred in rejecting a submission of no case to answer; that the verdicts of the jury are unsafe; and that there was insufficient evidence upon which the jury could have been satisfied beyond reasonable doubt that the appellant intended to use force to abduct the complainant.
The Prosecution Allegations
In June 2005, the appellant (then aged 42) lived near Kapunda but worked for an employer who was based in Tanunda. Although there were various alternative routes by which he could travel from Kapunda to Tanunda, for the most part he travelled a route which took him through Greenock.
The complainant was a 16 year old school girl who lived in Tanunda but attended Kapunda High School. It was customary for her boyfriend to drop her at a bus stop in the main street of Greenock at about 7.15 am. She would then wait for a bus, which arrived at about 8.00 am, to take her to Kapunda.
The complainant’s evidence was that at about 7.30 am on Wednesday 29 June 2005, she was waiting at the bus stop in Greenock when the appellant stopped his sedan adjacent to the bus stop with the front passenger door nearest to her. The appellant leant across from the driver’s seat, wound down the front passenger window and asked if she would like a lift. She declined. The invitation was repeated more than once with the appellant saying words to the effect that he would take the complainant to where she was going and she, on each occasion, declining. The appellant then demanded forcibly that the complainant get into the car (“Get in the fucking car”). He then got out of the driver’s door, walked around the car and stood at a position near the rear passenger door. While he was doing this the complainant said that she removed some scissors from a pencil case in her school bag and put them in her pocket.
Whilst standing near the rear passenger door, the appellant again told the complainant to get into his car. She declined. The complainant said that the appellant then undid the belt and zip of his trousers and exposed his penis and testicles for about 15 seconds. She then moved to her left but was still within the bus shelter. When she did this the appellant grabbed her bag by its handle and threw it against the back of his car. He took a step towards her and was then only a few metres from her. The complainant then produced the scissors and said words to the effect that the appellant should leave or she would stab him (“Fuck off or I will stab you”). Detecting some indecision, the complainant took a step towards the appellant, waving the scissors at him. The appellant, it was said, then “put his private parts away” and got back into the driver’s seat of his car and moved away, saying as he left “I will be back to get you, you little slut”. The complainant was able to see the registration number of his car.
At 7.32 am the complainant sent a text message to her boyfriend which said “this bloke tried 2 get me in his car. I’m so scared babe. His numba plate is SNZ 684. Ring me!!” At her boyfriend’s suggestion, the complainant then rang the police who attended in Greenock shortly afterwards. The police officer who attended, Snr Const King, described the complainant at that time as being upset and distressed.
The complainant gave a description of the driver of the car which was in a general sense consistent with that of the appellant. The registration number of the vehicle noted by the complainant matched that of the appellant’s vehicle.
The appellant gave evidence at his trial. He denied the complainant’s allegations. Although he admitted that he had travelled through Greenock at about 7.30 am that morning, he denied seeing the complainant at the bus stop.
Statutory Provisions
Section 59 of the CLCA provides:
A person who takes away by force, or detains against his will, any other person—
(a) with intent to marry, or to have sexual intercourse with, that other person; or
(b) with intent to cause that other person to be married to, or to have sexual intercourse with, a third person,
is guilty of an offence.
Maximum penalty:
(a) for a basic offence—imprisonment for 14 years;
(b) for an aggravated offence—imprisonment for 18 years.
Section 270A of the CLCA makes it an offence for a person to attempt to commit an offence.
The conduct of the appellant in telling the complainant forcibly to get into his car and his throwing of her bag against the car was said to comprise the attempted abduction. The conduct in exposing his genitals was said to comprise the offence of indecent behaviour.
Submission of No Case to Answer
It was submitted that the judge had erred in rejecting a submission of no case to answer made at the conclusion of the prosecution case. This submission tended to merge with the appellant’s submission that the verdicts were unsafe.
It has been said in some cases that when a submission of no case to answer is rejected and the accused gives evidence, an appeal against that rejection is not available. Instead the only question on appeal is whether there has been a miscarriage of justice in the verdict. See for example Maric v The Queen[11]; R v Rowley[12]; R v Penney[13]; R v Ayles[14]; and R v Rankine.[15] However, no question about the competence of this ground of appeal was raised in this case.
[11] (1978) 52 ALJR 631 at 634 per Gibbs ACJ.
[12] (1986) 23 A Crim R 371 at 375 per Young CJ.
[13] [1997] SASC 6071 at [75]-[79] per Perry J.
[14] (1993) 66 A Crim R 302 at 320-1 per Perry J.
[15] [1993] SASC 3990 at [13] per Legoe ACJ; at [45] per Matheson J.
I think it appropriate to approach the matter by considering whether the verdicts are unsafe. If that issue is resolved adversely to the appellant, then it could not be held that the trial judge was in error in dismissing the submission of no case to answer. If, on the other hand, the verdicts are unsafe, then it will be unnecessary to consider the appellant’s submission in this respect.
Mr Williams’ Movements
When the appeal was first argued Mr Borick QC, who appeared both at the trial and on appeal with Mr Hegarty for the appellant, effectively confined his oral submissions to one point. That was that the evidence of a prosecution witness, Mr Williams, meant that there was insufficient time for the events described by the complainant to have occurred. At the very least, it was submitted, the evidence of Mr Williams meant that a reasonable doubt about the reliability of the complainant’s account could not be excluded.
Mr Williams was a resident of Greenock who worked in Tanunda. He travelled to and from his work in an old Volkswagen. The condition of this vehicle was such that on cold mornings Mr Williams had to travel slowly until the engine warmed up. Mr Williams was accustomed to taking the same route from Greenock to Tanunda as did the appellant and at about the same time as did the appellant.
On the morning of 29 June 2005 Mr Williams saw the appellant’s vehicle approaching from Kapunda but had sufficient time to turn his vehicle onto the main street of Greenock ahead of the appellant. He passed the complainant waiting at her bus stop. Mr Williams then travelled, without stopping, through Greenock at slow but increasing speed, then through an 80 kph zone and approached the sign indicating a change to a speed limit of 100 kph. At that time his speed was of the order of 80 kph. As he approached the 100 kph zone, he was overtaken by the appellant’s vehicle which, he said, was travelling quite fast. There was no challenge to any of Mr Williams’ evidence.
A police officer gave evidence that the 100 kph sign was 1.5 kms from the bus stop at which the complainant was waiting for her bus.
The complainant saw Mr Williams’ vehicle that morning. She said that it had driven past her at slow speed shortly before the approach of the appellant’s vehicle. In her evidence-in-chief she said that “a minute, a minute and a half” had separated the two vehicles, but in cross-examination she said that it was more like 30 seconds.
The appellant said that he too had seen Mr Williams’ vehicle turn into the main street of Greenock and travel ahead of him. He recognised the vehicle from previous mornings. The appellant said that he followed Mr Williams through Greenock. This was necessarily at a slow pace because of Mr Williams’ slow speed. There was a period during which he could not overtake because of the nature of the road conditions, and because of two oncoming vehicles. He overtook Mr Williams at the first opportunity which was on the outskirts of Greenock near a “Welcome to Greenock” sign. Other evidence suggested that the “Welcome to Greenock” sign was about one kilometre from the bus stop at which the complainant was waiting.
The Timing Issue
The appellant’s principal submission was that there was insufficient time for him to have stopped his vehicle at the bus stop after Mr Williams had already passed it, to have engaged in the conduct alleged by the complainant, to have re-entered his vehicle and driven away, and yet to have been able to overtake Mr Williams at a point which was only about 1.5 kms from the bus stop. It was submitted that, at the very least, Mr Williams’ evidence should have been regarded as establishing a reasonable doubt about the reliability of the complainant’s evidence.
The precise time which it took Mr Williams to travel the distance of 1.5 kms to the 100 kph sign is not known and cannot be calculated. Mr Williams was not travelling at a constant speed. Instead, the speed of his vehicle increased as the speed zones changed and as the engine of his vehicle warmed up. However, if one uses a range of speeds which may approximate the possible average speed at which Mr Williams travelled the distance of 1.5 km, it seems likely that it would have taken him between 90 and 120 seconds to travel from the bus stop to the point at which he was overtaken.
Mr Borick QC placed considerable emphasis on various estimates of time given by the complainant. The first was her estimate that the appellant’s car had arrived either 30 seconds or one to one and a half minutes after Mr Williams’ vehicle had passed the bus stop. Another was her estimate that she had been able to see the appellant’s genitals for approximately 15 seconds. The third was her estimate that over 10 seconds had elapsed between the appellant getting back into his car and the car then moving off. I do not attach much significance to those estimates and doubt very much whether the jury did. Witnesses’ estimates of time, speed and distance are notoriously unreliable. There was no evidence that the complainant had any particular experience or practice in judging matters of time and, on her account, she could hardly have been concentrating on the length of time which was elapsing at each individual stage of the incident.
However, analysis of the conduct attributed to the appellant by the complainant suggests that it is unlikely to have taken less than one minute. That being so, it seems, on Mr Williams’ evidence, that there was little time within which the appellant could have approached the bus stop, committed the alleged offences, and then caught up with Mr Williams’ vehicle over a distance of about 1.5 kms.
The issue of timing arising from Mr Williams’ evidence was the area of contest at the trial. The trial was in effect conducted about the timing issue as a single issue. It featured predominantly in the respective submissions of prosecution and defence counsel. The trial judge’s directions to the jury addressed the timing issue in detail. The judge told the jury that the prosecution case was on the horns of a dilemma. The more time within which the appellant had to catch up with Mr Williams’ vehicle, the less time available in which the offences could have occurred. The less time which the appellant had to catch up with Mr Williams, the less likely that it was that he had spent time in an interaction with the complainant.
Mr Borick QC referred to some other matters which, it was said, reflected upon the reliability of the complainant. She had received a formal caution when 13 years old for ringing a school at which a former boyfriend was a student and making a hoax bomb threat. Since that time the complainant had also been formally cautioned for two offences involving dishonesty. Each of these matters was elicited in the cross-examination of the complainant and was the subject of submissions to the jury.
Consideration of the Timing Issue
The submission of Mr Borick QC seemed to assume that because the evidence of Mr Williams had been adduced by the prosecution, and had not been challenged, the jury was bound to regard it as reliable, or at the very least, to have regarded it as giving rise to a reasonable doubt about the complainant’s evidence. In the case of the complainant, the submission of Mr Borick QC was that her previous dishonest conduct should have been regarded as by itself creating a reasonable doubt about the reliability of her evidence about the subject incident.
However, it was for the jury to determine the evidence which it regarded as reliable. It was the trier of fact. The jury had an absolute right to accept or reject the whole or part of any witness’ evidence.
The question for this court on this aspect of the appeal is whether the jury, acting reasonably, should have entertained a sufficient doubt about the guilt of the appellant.[16] A verdict may be set aside on the ground that it is unsafe notwithstanding that there was, as a matter of law, evidence upon which the accused person could have been convicted[17] but this Court should not disturb the verdict simply because it disagrees with the jury’s conclusion. This Court must first be satisfied that a reasonable jury should have entertained a reasonable doubt.
[16] R v Morris (1987) 163 CLR 454 at 461 per Mason CJ.
[17] Ibid.
Were the matters emphasised by Mr Borick QC concerning the timing issue the only matters creating a cause for concern, I would not conclude that the jury, acting reasonably, could not have been satisfied of the appellant’s guilt. The timelines involved are tight but the jury, acting reasonably, may not have accepted Mr Williams’ evidence in full, or may have thought that only a slight mistake by him about his speed, or as to the place at which he was overtaken by the appellant, would still have left the appellant with sufficient time to commit the offences and then to catch up with Mr Williams’ vehicle. Alternatively, the jury might have thought that the whole incident happened much more quickly than the account of the complainant suggests. Further again, the jury might have attached significance to the fact that Mr Williams said that after turning into the main street of Greenock, he did not see the appellant’s vehicle again until shortly before he was overtaken. If the appellant had been tailing him, it is to be expected that Mr Williams would have had at least some view of his vehicle in his rear vision mirror while travelling through Greenock. The jury might have concluded that the fact that the appellant was not seen was because he had stopped, as alleged by the complainant.
I am not satisfied that the evidence of Mr Williams indicates that the verdicts are unsafe.
This makes it necessary to consider the third ground of appeal and a further matter affecting the safety of the verdict.
The Elements of the s 59(a) Offence
Section 59 creates two offences: one being the forcible taking or detaining of a person by the accused with the intention of marrying or having sexual intercourse with that person (s 59(a)), and the second being the forcible taking or detaining of a person by the accused with the intention of causing the person to be married to, or to have sexual intercourse with, someone else (s 59(b)).[18]
[18] Cf R v Manwaring [1983] 2 NSWLR 82 at 89 per Miles J.
Section 59(a) makes unlawful an abduction or a detention for one or other of the identified purposes. The elements of a completed offence pursuant to s 59(a) are the forcible taking away of a person with a contemporaneous intention to marry, or to have sexual intercourse with, that person.[19] It is not necessary to establish that an accused intended that sexual intercourse should occur contemporaneously with the taking away but the intention to have sexual intercourse at some stage must exist at the time of the taking away. The offence is complete when the taking away by force occurs, provided that the intention for which the abduction was being effected was to have sexual intercourse with the victim.[20]
[19] R v Storey (1978) 140 CLR 364 at 368 per Barwick CJ, at 398 per Mason J.
[20] R v Manwaring [1983] 2 NSWLR 82 at 84 per Begg J.
The appellant’s written outline of argument included a submission that the prosecution had to prove not only an intention to have sexual intercourse, but an intention to rape the complainant, ie, an intention to have sexual intercourse with her at a time when he knew she was not consenting, or was recklessly indifferent as to the existence of consent.[21] This submission was not developed in oral argument. It cannot be accepted. It is inconsistent with the language of s 59 and with its history.[22]
[21] CLCA s 48.
[22] R v Hussey (1980) 23 SASR 178.
In the present case, the appellant was charged with an attempted s 59(a) offence. This means that for the appellant to be convicted, the prosecution had to satisfy the jury beyond reasonable doubt of the following:
(i) an intention by the appellant to take the complainant away by force;
(ii)the doing of some act or series of acts to give effect to that intention, ie, the doing of some act or series of acts immediately directed towards, and not merely remotely connected with, carrying the intention into effect;
(iii)the contemporaneous intention to take the complainant away in order to have sexual intercourse with her;
(iv) the absence of any lawful excuse for those acts.
The “taking away” of a person involves the removal of the person from one place to another.[23] It has been said that the “taking” does not have to involve a significant time or distance and that it is sufficient if there has been some interference with the victim’s liberty.[24] In relation to the offence of taking an unmarried girl out of the custody or protection of her mother with the intention that she might be carnally known, the Full Court of the Western Australian Supreme Court has said that “taking” means “taking in the nature of taking against the will of the other, or by some means which are not exactly merely persuasive”.[25]
[23] R v Wellard [1978] 3 All ER 161 at 162 per Lawton LJ.
[24] R v Campbell and Brennan (1981) Qd R 516 at 521 per Demack J.
[25] Stephens v The King (1929) 32 WALR 9 at 10 per Burnside J.
By Force
Section 59(a) has an additional requirement, namely that the taking away be by force.
The notion of force in the criminal law is generally taken to involve the application of physical force or at least the threat of application of physical force. That notion has been applied in the context of s 59(a). In R v Webb[26] Cox J said in relation to s 59(a) “I think many lay people would consider that the notion of force requires some degree of physical violence”.[27] Cox J accepted in the circumstances of that case that the action of picking up a child and moving her to a vehicle was capable of comprising sufficient force.[28]
[26] (1996) 186 LSJS 184.
[27] Ibid at 185.
[28] Ibid.
In the present case the trial judge directed the jury on this topic in the following terms:
An abduction is simply a taking away by force and that is what is alleged here, by force. The force required is not necessarily physical violence but it is sufficient, whatever is done, to take the victim against her will. For example, pointing a pistol at someone may be sufficient to have them get in the car, that would be taking by force, even though there is no physical violence. You must remember in this case there is no suggestion of a weapon of any kind.
It has to be the Crown case that if [the complainant] did not get in the car voluntarily, the accused was in some way going to physically bundle her or drag her into the car.
It was not suggested at trial, or on appeal, that the trial judge had been wrong in telling the jury that the Crown case was that if the complainant did not get into his car voluntarily, the appellant intended in some way to bundle her, or to drag her, physically into the car.
Although it clear enough on the complainant’s evidence that the appellant wished her to get into his car, the evidence that he intended to accomplish that by force, if necessary, was slight. The appellant had no weapon, and at no stage did he threaten the complainant. When he got out of the car, he did not move to grab the complainant or to make contact with her. Instead he stood near his own car. Apart from one step towards the complainant from his position near the rear passenger door, the appellant made no attempt to make any contact with the complainant and did not do so. The appellant had not opened any of the car doors so as to facilitate the forced entry of the complainant into his car. His demands that the complainant get into the car, even if expressed forcibly, do not comprise force of the relevant kind. Moreover, on the complainant’s account, the appellant had undone his belt and lowered the zip of his trousers and had exposed his genitals. It seems that his trousers were slightly lowered. It is reasonable to suppose that in this situation, the security of the appellant’s trousers was compromised, and that the appellant was in a somewhat awkward condition from which to attempt a physical manoeuvre of the complainant into his car. It is true that the appellant did take the complainant’s bag and throw it against the rear of his car. That was an action involving the use of force. But to my mind, that is equivocal conduct. It is consistent with being an attempt to induce the complainant to move closer to his vehicle or with being a gesture of frustration. It is also true that the complainant was apprehensive that the appellant might grab her. But that evidence does not take the issue much further. Furthermore, when the complainant produced the scissors, the appellant withdrew almost immediately. In all these circumstances, while it cannot be said that there was no evidence at all from which an intention to use force could be inferred, my opinion is that a reasonable jury could not have been satisfied beyond reasonable doubt of the appellant’s intention to use force. This is not simply a disagreement with the jury’s verdict. I consider that a reasonable jury must have had a reasonable doubt about this element of the offence.
On this ground alone, I am satisfied that the guilty verdict on Count 1 is unsafe.
The Intention to have Sexual Intercourse
As already noted, an essential element of the attempted s 59(a) offence charged against the appellant was that at the time of the conduct alleged, the appellant had an intention to have sexual intercourse with the complainant. It was not sufficient for the prosecution to prove that the accused had some general purpose of a sexual nature in mind, or that the offending had some sexual overtones. An intention by the appellant to have sexual intercourse with the complainant had to be proved. It is the intention to have sexual intercourse (or in an appropriate case, the intention to marry the victim) accompanying the act of taking away which is the distinctive feature of a s 59(a) offence.
As the appellant denied (both when interviewed by the police and in the witness box) that the incident alleged by the complainant had occurred at all, there was no relevant admission from which the nature of his intentions could be obtained or otherwise inferred. This meant that the appellant’s state of mind had to be inferred from his conduct at the time, as described by the complainant. As the appellant’s conduct, on the prosecution case, did not go beyond an attempt, this presented additional difficulties for the jury. It meant that there was a limited amount of conduct from which any inference could be drawn.
The judge’s direction to the jury on the topic of the necessary intention was as follows:
The next element of this offence of abduction is that the Crown must prove not only that he intended to take [the complainant] by force into the car, but that he did so for the purpose of having sexual intercourse with her.
Sexual intercourse in this context has a wider meaning than you may think. It is including any activity consisting of or involving penetration of the vagina or anus of a person by any part of the body of the accused and it also includes the acts of fellatio or cunnilingus.
In this matter the Crown points to an intention to have sexual intercourse as being proved by the exposure of the penis and testicles by the accused which they say showed the true purpose behind the actions of the accused. If you are satisfied beyond reasonable doubt that this was an attempted abduction, then that is evidence from which you could infer the purpose or intention of the attempt. That is, in some way the intention to have sexual intercourse.
It is clear enough, on the complainant’s evidence, that the appellant had a sexual interest in her, and it is natural to think that that may have been an interest in sexual intercourse. However, a sexual interest can be of various kinds and, when given expression, may take a variety of forms. It was necessary for the prosecution to negative any sexual purpose other than sexual intercourse as a reasonably possible explanation for the appellant’s conduct.
The action of the appellant in exposing his genitals to the complainant was one form of sexual expression. In some respects, its occurrence presented difficulties for the prosecution case because “flashing” by males, when it occurs, is often in a context unrelated to any intention of sexual intercourse.
Mr Kimber, who appeared for the Director, submitted that sufficient evidence of an intention to have sexual intercourse in this case could be inferred from the following combination of circumstances: the fact that the complainant was approached when waiting alone at a bus stop; evidence that the appellant had, on previous mornings, endeavoured to engage the complainant in some interaction as he drove past the bus stop; the invitation, and later aggressively expressed demands, that the complainant get into the car; the appellant’s getting out of his car when the complainant declined the initial requests that she should get into the car; the evidence suggesting that the appellant wished to take the complainant away by force and in particular the throwing of the complainant’s bag towards his car and his stepping towards the complainant; and the reference to the complainant in a sexually disparaging way immediately before the appellant drove away.
In my opinion, the inferences which can be drawn from these features of the appellant’s conduct are equivocal. They do indicate that the appellant wished the complainant to get into his car, and that he attempted to induce her to do so in a rather brusque way. They also indicate a sexual interest of some kind. But in my opinion, a purpose of sexual intercourse is not the only reasonably possible explanation for that behaviour. It is just as consistent, in my opinion, with some other purpose, eg, the appellant engaging in a form of sexual bravura, or seeking an opportunity to importune the complainant, or to kiss or fondle her, or perhaps to engage in some form of indecent assault. I repeat again that the action of the appellant in showing his genitals (in the circumstances in which it occurred) which appears to have been the most overt piece of sexual behaviour is seemingly inconsistent with the existence of sexual intercourse as a purpose of the appellant’s behaviour.
In my opinion, it was not open to a jury, acting reasonably, to find proved beyond reasonable doubt that the appellant had an intention to have sexual intercourse. It was not possible for a jury, acting reasonably, to exclude all other sexual connotations for the conduct described by the complainant.
The Conduct of the Trial
There remains to be considered whether effect should be given to this conclusion having regard to the conduct of the trial.
The appellant’s defence at trial was conducted in a way which did not put the existence of an intention to have sexual intercourse in issue. In the course of a submission during a pre-trial argument, the appellant’s counsel made a submission which, although not express, appeared to indicate that the evidence that the appellant exposed his genitals was sufficient, if accepted, to evidence the existence of the relevant sexual purpose. More importantly, the appellant’s counsel did not separately address this element of the offence at all in his submissions to the jury. Instead, on one view, the jury was, in effect, encouraged by the appellant’s counsel to treat the timing issue as the sole issue for their determination. Counsel said:
His [the trial judge’s]directions on the law are a little difficult in this case because you haven’t been told much about what the law is from the prosecution and there is nothing really that I can deal with here because the case that I put forward for my client, his case is that he wasn’t there so I don’t have to deal with the law of attempt or the law of abduction but his Honour will have to.
You’ll have to listen carefully because the law of what amounts to an attempt and what amounts to abduction is not straightforward.
The other task that his Honour has in his direction is to remind you of the two fundamental features of our criminal law. The first is the presumption of innocence. You, as the jury, have to give [the appellant] that and the second is proof beyond reasonable doubt. Nothing else will suffice, so unless you can say that, beyond reasonable doubt we accept that woman and we totally reject what Williams says, only then can you convict [the appellant] and the defence say that that would be an impossibility.
The last sentence of the passage just quoted may reasonably have been understood by the jury as an acceptance by the appellant’s counsel that if, contrary to his submission, the jury did not regard Mr William’s evidence as giving rise to a reasonable doubt about the occurrence of the incident altogether, it was open to them to find the appellant guilty. That may not have been the intention of the appellant’s counsel as he had, earlier in the passage just quoted, told the jury that the judge would be addressing them on “the law of attempt” and “the law of abduction”. Counsel did give the jury an explanation for not addressing those issues himself, namely, “because the case that I put forward for my client, his case is that he wasn’t there so I don’t have to deal with the law of attempt or the law of abduction”. It is not clear to me why counsel should have felt constrained, given his emphasis on the timing issue, from also addressing the issue of abduction by force and the issue of intention. Counsel appears to have made a tactical decision that the evidence of Mr Williams gave the appellant his strongest chance of acquittal and that that evidence should be emphasised to the exclusion of other issues.
This gives rise to the question of whether the appellant should now be bound by the conduct of his defence.
The general rule is that a party is bound by the conduct of counsel.[29] The judgment of Gleeson CJ in R v Birks[30] is frequently cited in this context. Gleeson CJ said:
As a general rule, a party is bound by the conduct of his or her counsel, and counsel have a wide discretion as to the manner in which proceedings are conducted. Decisions as to what witnesses to call, what questions to ask or not to ask, what lines of argument to pursue and what points to abandon, are all matters within the discretion of counsel and frequently involve difficult problems of judgment, including judgment as to tactics. The authorities concerning the rights and duties of counsel are replete with emphatic statements which stress both the independent role of the barrister and the binding consequences for the client of decisions taken by a barrister in the course of running a case.[31]
[29] TKWJ v The Queen [2002] HCA 46 at [8]; (2002) 212 CLR 124 at 128 per Gleeson CJ; Nudd v The Queen [2006] HCA 9 at [79] per Kirby J.
[30] (1990) 19 NSWLR 677.
[31] Ibid at 683.
Later, Gleeson CJ summarised the principles relating to the circumstances in which an appellate court will intervene to prevent a miscarriage of justice arising from the conduct or omission of counsel in a trial in the following terms:
1.A Court of Criminal Appeal has a power and a duty to intervene in the case of a miscarriage of justice, but what amounts to a miscarriage of justice is something that has to be considered in the light of the way in which the system of criminal justice operates.
2.As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence.
3.However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of “flagrant incompetence” of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention.[32]
[32] Ibid at 685.
In Leuschel v Police[33] Doyle CJ addressed a similar issue in case in which counsel at first instance had not adduced relevant and available evidence. Doyle CJ said:
There are many cases that consider the approach to be taken to an appeal against conviction that relies for its success upon evidence, tending to disprove guilt, that was not presented at the trial. Usually a court will not set aside a conviction on the basis of such evidence if, with reasonable diligence, the evidence could have been presented at the trial: … This approach is not required by a rule of law. The ultimate issue for an appellate court is whether there has been a miscarriage of justice. The approach that a court usually takes, in deciding if there has been a miscarriage of justice, reflects an aspect of our system of trial, and a practical approach to the administration of justice. At trial the prosecution and the defence each have the opportunity to present their case. It is at trial that the evidence upon which innocence or guilt is to be decided must be presented. There are powerful reasons of justice and efficiency for holding each party to the course adopted at trial. Failure by the defence to present available evidence will usually mean that a court of appeal will hold that the evidence cannot be relied upon in support of an appeal. But, as I have already said, the ultimate issue involves considering the requirements of justice.[34] (Citations omitted and emphasis in the original)
[33] [1999] SASC 409; (1999) 75 SASR 231.
[34] Ibid at 232-3.
The principles discussed in Birks and in Leuschel have been applied in this State in a number of cases. See for example R v O’Neill,[35] R v IAS,[36] and Papastamatis v Police.[37]Applying these principles, courts have frequently refused to find a miscarriage a justice when counsel have made decisions about evidence or procedure or have made strategic decisions about the manner of conduct of a trial.
[35] [2002] SASC 53 at [47]-[50]; (2002) 81 SASR 359 at 367-9 per Martin J.
[36] [2004] SASC 240 at [50]; (2004) 89 SASR 159 at 172 per Besanko J.
[37] [2003] SASC 102 at [13]; (2003) 85 SASR 241 at 243-4 per Duggan J.
However, the present case is of a different kind. Proof that the appellant’s purpose in the attempted abduction was that of sexual intercourse was an element of the offence about which the jury had to be satisfied beyond reasonable doubt. The necessity for the jury to be satisfied of the existence of that state of mind could not be waived by counsel. The plea of not guilty put all elements of the offence in issue and no element could be withdrawn from the jury’s consideration.[38] Whatever counsel said, the jury had to be satisfied itself of each element. In the same way, counsel cannot waive the requirement for a direction required by law to be given[39] and cannot waive the possible verdicts which should, as matter of law, be left to the jury.[40] In addition, the evidence at trial had to be capable of satisfying the jury to the requisite degree of each element of the offence. If that evidence was lacking, then, absent an admission of the kind contemplated by s 34 of the Evidence Act 1929 (SA), a concession by counsel in final addresses was not capable of making it good. A jury’s verdict is to be reached having regard to the evidence proved in the trial, together with any formal admissions made at the trial. Putting the matter slightly differently, matters such as the elements of the offence, and the sufficiency of the evidence to prove each element of the offence, are not matters of counsel’s discretion or judgment such that an accused person should be bound by the conduct of counsel at trial in relation to them.
[38] Griffiths v The Queen (1994) 69 ALJR 77 at 79 per Brennan, Dawson and Gaudron JJ.
[39] See for example R v Winters [1998] SASC 6595 per Cox J.
[40] R v Gillard [2003] HCA 64; (2003) 219 CLR 1.
Accordingly, I do not regard the conduct by the appellant’s counsel at trial in this case as precluding a finding by this Court that the jury’s verdict on Count 1 is unsafe.
Conclusion
For the reasons given above, I am satisfied that the appeal against the conviction on Count 1 should be allowed and that conviction quashed. I would direct a judgment and verdict of acquittal on Count 1 as there is insufficient evidence upon which a jury could conclude that the appellant had an intention to take the complainant away by force, or to have sexual intercourse with her.
The matters which have led me to the conclusion that the verdict on Count 1 is unsafe do not affect the verdict on Count 2. I would dismiss the appeal with respect to Count 2.
The effect of the orders I propose is that the sentence imposed on the appellant with respect to both offences should be set aside and the appellant re‑sentenced with respect to Count 2 only. I would refer the matter back to the trial judge for this purpose.
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