R v Prasad - [2009] SASC 131

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v PRASAD
[2009] SASC 131
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Anderson and The Honourable Justice White)
21 May 2009
CRIMINAL LAW - EVIDENCE - COMPLAINTS - ADMISSIBILITY OF DETAILS AND FACT OF COMPLAINT
Appeal against conviction - appellant convicted by jury of choking with intent to commit an offence and rape - complainant gave evidence of an act of violence towards her by appellant - last recollection before losing consciousness was seeing three caucasian men walking towards her - evidence of out of court statement that she had been raped by three men - complaint as to the directions trial judge gave jury about use of this evidence - complaint that trial judge's directions did not draw jury's attention to fact that it may have been the three men who caused complainant's injuries.
Held: Evidence of out of court statement not evidence of recent complaint and therefore no such direction required - statements made by complainant not testimonial - no error in judge's direction identified - appeal dismissed.

CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - IMPEACHMENT OF CREDIT AND ADMISSIBILITY OF EVIDENCE AS TO CREDIT - EVIDENCE IN CONTRADICTION
At trial appellant gave evidence which in one particular was inconsistent with version of events put to complainant in cross-examination - in closing address prosecution drew jury's attention to inconsistency and suggested accused had changed his position - appellant argues trial judge erred in failing to direct jury that there may have been other explanations for appellant's change in position.
Held: No unfairness to appellant had occurred - appellant had opportunity to explain inconsistency - trial judge's diretion focused jury's attention on evidence presented - permission to appeal refused.
Bedi v R (1993) 61 SASR 269; MJW v The Queen (2005) 80 ALJR 329, discussed.
R v Manunta (1990) 54 SASR 17, considered.

R v PRASAD
[2009] SASC 131
Court of Criminal Appeal: Vanstone, Anderson and White JJ

VANSTONE J: After a trial in the District Court before judge and jury, the appellant was convicted for choking with intent to commit an offence and rape. He was acquitted of a third charge of threatening life. He appeals against those convictions. Permission to appeal has been granted in respect of two grounds. The appellant renews his application for permission to appeal in respect of two further grounds. All grounds complain of error or inadequacy in the directions of the learned trial judge to the jury in the course of his summing up.
Background
The prosecution case was that the complainant had gone with her girlfriend and partner, D, to an hotel in Hackham where she met the appellant. The complainant and the appellant had danced and kissed. They had both been drinking liquor.
The appellant offered to take her into the city in his vehicle. At a car park near Christie’s Beach the appellant stopped the car and attempted to touch the complainant’s breasts. She refused his advances and tried to leave. The appellant persuaded the complainant to return to the car and then drove the complainant, via a petrol station, to a secluded car park off Collins Parade, near the Hackham Oval.
The complainant related that there, whilst still inside the car, the appellant sexually assaulted her, grabbing her chest and trying to touch her breasts. The complainant screamed and attempted to leave the car, but was restrained by the appellant who took hold of her shirt, threatened to bash her and told her that he “wanted to see her dead”.
When the complainant managed to escape from the car she tripped and fell. The appellant pursued her and before she could stand he repeatedly kicked her in the back preventing her from getting up. Thereafter the appellant rolled the complainant over, sat on her, and began punching her in the head, whilst choking her until she lost consciousness. This was count 2. She suffered injuries to her face and neck.
The complainant told the jury that her last memory, whilst being choked, and before losing consciousness was of seeing three men approaching her. She said that the pressure applied to her throat, together with punches which the appellant delivered to her caused her to be “knocked out”. She said that the last thing she remembered was seeing three Caucasian men walk up to her. At that point, she thought to herself, “that’s it, I’ve gone”. When asked whether she could describe the three men, she said she could not, that “they looked like spirits actually, like I know it sounds stupid, but they just looked like ghosts”. The complainant had no recollection of having intercourse with anyone. The prosecution case as to rape was based upon the finding of semen matching the appellant’s DNA in the complainant’s vagina, as well as injuries she sustained to her genital area.
When the complainant awakened several hours later, she was still on the ground. She was not wearing her jeans or shoes and could not find them. She discovered her wallet was missing. She started hitchhiking and was picked up by a mother and daughter, Mrs B and Ms B. They took her to a police station where she spoke to officers and then was taken to the Flinders Medical Centre.
The appellant gave evidence in his defence. He agreed that he had met the complainant at the hotel. She had flirted with him and pursued him. At the complainant’s insistence he took her to the Hackham Oval. He said he reluctantly consented to have intercourse with her, despite the fact that he was soon to be married and despite the fact that it was contrary to his ethics. He said that she would not take his refusal for an answer; that she made him have sex with her. After that, he discovered that his wallet was missing and asked her if she had seen it. He searched for it using the headlights of the car, but could not find it. They argued about what she perceived to be an accusation of having stolen it. He slapped her once on the left cheek and she eventually pointed out where it was. About $200 was missing from it. He then left her there, driving to a nearby service station to get some petrol. Leaving the service station, he noticed the complainant sitting on a kerb near to a bus stop. He said he stopped, gave her his zip-fronted shirt because she was cold and apologised for what had happened.
It is convenient to deal first with those two grounds of appeal upon which permission to appeal has been granted. Since they are very much related, I shall deal with them together.
Grounds 3 and 6 – Failure to direct on out of court statements by the complainant and the terms of a direction given about the three men
Ground 3 complains of the failure of the trial judge to give adequate directions to the jury in relation to the permissible and impermissible uses of things said by the complainant to Mrs B and Ms B.
Evidence on this topic, not only from Mrs B, but also from the complainant, was led by counsel for the prosecution, without objection by the defence.
In her evidence-in-chief, the complainant told the jury that she told Mrs B and her daughter that she had been “raped by four men”. However, in cross-examination it was put to her, and she agreed, that she had in fact related that she had been raped by three men. Mrs B herself told the jury that when she stopped her car and let the complainant into it, she asked her what had happened. The complainant told her that she had been raped by “three guys”. She continued that the complainant had said “that they picked her up, or that somewhere along the line they had met at Mick O’Shea’s and that there were three of them”. As to this last, there was later a concession made by prosecuting counsel which effectively ruled out any connection between the appellant and the three men. It can be added that the forensic examinations did not suggest the presence of male DNA apart from the appellant’s.
It was not suggested at the trial that this evidence amounted to evidence of recent complaint. It could not have been viewed as evidence of consistency. Therefore, no direction in terms of recent complaint was called for. That is because the purpose of such a direction is to guard against the jury using the out of court statement as evidence proving the charge. In that respect the ground of appeal fails.
In a sense, neither was the out of court statement demonstrable of inconsistency, because in her evidence the complainant did not purport to describe being raped by anyone. But it was certainly a statement which was markedly different from her position at trial. Not surprisingly, the defence sought to make use of it to undermine the complainant’s credibility. In his address to the jury, counsel questioned whether the complainant could have been unconscious as claimed, if, earlier on, she had in fact recalled being raped. Then, as I understand his submissions, counsel sought to make use of the complainant’s statement that she had been raped by three men, in a testimonial or assertive way, to suggest that if this statement were true, then plainly the accused was not one of the three rapists. He said this:
[The complainant]’s evidence to you was that when she got into the car with [Mrs B] and her daughter, her evidence here in court was she said to them she thought she had been raped by four men.
Given that she said she had been passed out and so on, that might be a bit odd that she said she thought she had been raped when she had no memory, but perhaps she was trying to draw some conclusions from all of the facts she saw when she woke up. But more significantly is [Mrs B]’s evidence about that same conversation, because what [Mrs B] said was that when [the complainant] had got into her car ‘She said to me she had been raped by three men’. And, if you think about it, there is a real point of distinction there. I know it’s only one number, but it makes a difference because [the complainant] says she saw three Caucasian men before she passed out.
She told [Mrs B] she had been raped by three men. Those three men obviously don’t include Mr Prasad who is clearly not Caucasian. When she gave evidence here, he had been included and the number had gone up to four. It might be that significant.
I shall turn to the directions on this topic given by the judge in a moment. First I make this observation. In my view, the first use of the statement of being raped by three men put to the jury by defence counsel was legitimate. It was open to counsel to question whether the woman’s claim of being unconscious from the time when the three men appeared could be genuine, given that she purported to have, at the time when she spoke to Mrs B, a recollection of events thereafter. However, I consider that the second use made of this evidence by defence counsel is questionable. Although the complainant said in evidence that she had told Mrs B that she had been raped by four men – rather than three – she claimed to have no recollection of events subsequent to the appearance of those men. Therefore, what she claimed to have told Mrs B, and what Mrs B related she had said, had no testimonial value. These were not statements which could be used in proof of the assertions made. No doubt the jury would have considered the possibility that the significant injuries sustained by the complainant were inflicted by one or more of the three men, but there was no evidence at all that any of those three men had raped her.
The particular complaint made by the appellant about the judge’s directions developed during the appeal argument. Initially it was put that the evidence was in the nature of a recent complaint and should have attracted a direction of that type; though one highlighting inconsistency rather than consistency. But as the argument developed, it focussed, instead, on the failure to highlight the significance to the defence case of the three men and the possibility that they caused the complainant’s injuries and stole her wallet.
In his summing up to the jury, the judge spoke in general terms of the evaluation of witnesses. He did not give a specific direction about what might be made of any previous inconsistent statement of a witness. The judge summarised the appellant’s evidence at some length. He also summarised defence counsel’s address to the jury, including counsel’s submissions about the out of court claim of rape by three (or four) men. At the end of his summing up the judge encapsulated both the prosecution and defence cases and then gave the impugned direction about the statement regarding three men. He said as follows:
145What then do you make of the evidence of [the complainant] of the three men, assuming that they were actually there? This may be an approach although I add that this is a suggestion only and you are entitled to ignore it if it is of no assistance – it is a matter of fact rather than law. First, if the accused had sex with [the complainant] after violence by him alone or by him and others it may not be difficult to conclude that it was rape. You would have to be satisfied of that beyond reasonable doubt. If it is a reasonable possibility that the accused had sexual intercourse before there was any violence then on the evidence in this trial it could not be rape. The prosecution must prove that sexual intercourse occurred before any violence, in particular it must prove that it did not take place as the accused says it did, and in considering that you will have to consider all of the evidence in the trial.
As regards this direction, the appellant submits that it failed to explicitly draw to the jury’s attention that it might have been the three men who caused the complainant’s injuries. It was put that the direction wrongly reduced the issue before the jury to a question of the order in which violence and sexual intercourse occurred.
There is no doubt that this was, factually, an unusual case. That there should have been out of court statements by the complainant to Mrs B, the basis for which the complainant no longer remembered, was also unusual. I consider that the way in which the trial judge deconstructed the issue for the jury at the end of his summing up was helpful. The direction focussed on the time of the intercourse with the appellant. It admitted of the possibility that others might have been involved in the violence inflicted on the complainant. In effect, the direction tacitly permitted the use of the complainant’s out of court statements in a testimonial manner, as defence counsel had utilised them. Any direction withdrawing that use from the jury would have eroded the force of counsel’s argument. In fact, counsel’s argument before this Court seems to me to be inconsistent with the conduct of defence counsel at trial. There the appellant was allowed to use this item of evidence assertively, to suit his purposes. Now, the appellant complains of the lack of a direction preventing him from so utilising it.
The appellant does not complain that any single aspect of the direction given was inaccurate or incorrect. However, it appears from the transcript that, in the course of the direction, the judge made an error. I think the last sentence should have read: “The prosecution must disprove that sexual intercourse occurred before any violence, in particular it must prove that it did not take place as the accused says it did, and in considering that you will have to consider all of the evidence in the trial.” This point was not raised at any stage by counsel. Some weeks after the appeal was heard the court sought a report from the trial judge as to the correctness of this portion of the transcript. The judge’s response suggested that the error was his, rather than the court reporter’s.
The second part of that sentence immediately corrected the apparent error. In addition, the whole of the direction was only put as a suggested approach and an attempt to assist the jury. It was not a direction of law. Trial counsel raised no complaint about it. Nor did he seek any further direction. I consider that, like counsel, the jury would not have noticed any error, or have been misled by the direction. The direction did not contain any vice so far as the appellant is concerned. The complaints are not made out.
Grounds 3 and 6 must fail.
Ground 2 – Failure to direct adequately on intoxication
I turn then to the grounds in respect of which permission to appeal has not been granted.
Ground 2 is a complaint that the judge’s directions upon the evidence about the complainant’s intoxication failed to bring home to the jury the effect intoxication could have on each of the complainant’s behaviour on the night, her memory subsequently and her credibility. He referred to Bedi v R (1993) 61 SASR 269, arguing that the judge needed to do more than he did in marshalling the evidence on the topic and relating it to the legal issues. A similar, but weaker, complaint was made in relation to the impact of liquor upon the appellant.
There is no doubt that the complainant was extremely intoxicated on this occasion. She gave evidence of the extensive consumption of liquor and, an examination of a sample of her urine, taken at least six hours later, showed an elevated level of alcohol. The judge referred to all this material in the course of his summary of the evidence.
As to whether any further directions were needed, it can be observed that in most cases a jury would need little, if any, assistance from a judge about the impact intoxication might have on sexual behaviour. On neither view was this a failed seduction, nor a case where liquor could have dulled the appellant’s appreciation of lack of consent. On the contrary, the two accounts had almost nothing in common and the injuries to the complainant, notably to her vulva, were not accounted for on the appellant’s evidence. I think the jury could not have failed to appreciate the impact that intoxication, and indeed the injuries, would have had upon the woman. She did not resile from that. There was, in my view, no specific matter which required elucidation by the judge arising from the evidence of intoxication.
As to any direction concerning the accused’s intoxication, I consider that nothing further was needed. The accused’s drinking was not nearly as extensive as the complainant’s. Although he acknowledged he was affected by liquor, he did not complain of being intoxicated as such. This was not a case where liquor could have resulted in any impairment of his understanding of the situation for the reasons already recorded.
I would refuse permission to appeal on this ground.
Ground 4 – Directions arising from the rule in Browne v Dunn
To place this complaint in context, it is necessary to say a little more about the course of the trial.
The complainant gave evidence to the effect that at the time when the appellant was “grabbing” her upper body as they sat in his vehicle at the carpark, she attempted to leave the car. He restrained her. She said that, at one stage during the struggle, her feet came into contact with the front windscreen of the car. In cross-examination she agreed that she had not made such an assertion in her police statement. She said that her memory had been revived by police telling her that a footprint had been found on the windscreen. It was put to her that there was no violence in the car, that she never kicked the windscreen and that her foot at no stage made contact with it.

When the appellant was asked about this topic in evidence-in-chief he said that he “noticed” something that could have accounted for the mark found by police. He said that:
She was putting her legs on the dashboard, that’s where the marks come from. Most probably shoes touching the windscreen so – because she was too drunk and she was trying to relax herself. That’s where she put her legs, up there.”
Prosecuting counsel later asked the appellant about the apparent change in his position. He said:
Q.It was put to her by your counsel that her foot never went onto the windscreen, are you now saying that it did go onto the windscreen?
A.Because I seen her putting her foot on the dashboard, that’s what I’m telling you.
In his address to the jury, prosecuting counsel again raised the apparent inconsistency and suggested that the accused’s position on it had changed since the cross-examination of the complainant.
In the part of his summing up dealing with prosecuting counsel’s address, the judge referred to the point counsel had made. He told the jury that it required some explanation and he gave a brief explanation of defence counsel’s duty to put his case to witnesses in cross-examination. He encapsulated the point made by prosecuting counsel as a suggestion that, because what was put to the complainant was inconsistent with the evidence the appellant later gave, that must mean that the appellant’s position on the issue had changed. He pointed out that the criticism of prosecuting counsel was directed, not at defence counsel, but at the appellant. The judge then went on:
That interpretation is open to you, but that interpretation should not be taken too far because you cannot be sure whether that is in fact what happened.
Perhaps a preferable way of approaching that topic is to ask yourselves whether you are satisfied of [the complainant]’s account of how her footprint came to be on the windscreen or whether it is a reasonable possibility that she was, as the accused says, relaxing in the car with her feet up on the dashboard.
The appellant’s criticism of this direction is that the judge failed to direct the jury in relation to other possible explanations for the apparent change in the appellant’s position. Counsel added that there was unfairness to the accused, inasmuch as prosecuting counsel had not confronted the appellant with the suggestion that he had invented his explanation for any mark on the windscreen after the time when instructions had been given to his counsel. In support of the submission, counsel referred to MJW v The Queen (2005) 80 ALJR 329 to the effect that the principle in Browne v Dunn needed to be applied with “some care when considering the conduct of the defence at criminal trial”: [18]. Counsel also referred to R v Manunta (1990) 54 SASR 17. In that case King CJ warned that commenting on counsel’s failure to cross-examine on some matter to which his client subsequently deposed was “fraught with peril and should therefore be used only with much caution and circumspection”. The Chief Justice went on to point out that there might be many explanations for such an omission which would not reflect upon the credibility of the witness. He enumerated some examples: 23-24.
There are two preliminary points to be made here. This was not a case where prosecuting counsel failed to confront the witness with the apparent change in his position. The appellant had an opportunity to explain the variation. Nor was it a case where the appellant’s counsel had simply failed to put his client’s instructions at an earlier time. On the contrary, defence counsel had clearly put his instructions and they were at variance with the appellant’s evidence on the topic. I note that there was no attempt by counsel, in the absence of the jury, to claim responsibility for any mistake, which might have accounted for the difference.
However, as can be seen from what I have set out of the judge’s direction, it was one which tended to undermine the force of the point made by prosecuting counsel. In that regard it was a favourable direction from the appellant’s viewpoint. I make no criticism of that. The judge effectively warned the jury against reading much into the apparent change of position and advised the jury to concern themselves, not with the question of defence counsel’s instructions, but rather with the evidence as to how the mark might have made its way onto the windscreen. In view of the judge’s direction, I cannot see that any complaint can be made.
I would refuse leave on this ground.
Conclusion
For the reasons given I would refuse permission to appeal on grounds 2 and 4 and I would dismiss the appeal.

ANDERSON J. I agree that the appeal should be dismissed and that permission to appeal should be refused on grounds 2 and 4. I agree with the reasons of Vanstone J.

WHITE J: I agree with the orders proposed by Vanstone J and with her reasons.