R v R, R - [2007] SASC 71

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v R, R & ANOR
Criminal Trial by Judge Alone
[2007] SASC 71
Reasons for the Verdict of The Honourable Justice Layton
2 March 2007
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - TRIAL HAD BEFORE JUDGE WITHOUT JURY
ABORIGINALS - CRIMES BY ABORIGINALS - EVIDENCE
Trial by judge alone - accused both charged with raping the complainant - R charged with anal rape - L charged with vaginal rape - accused and complainant all Aboriginal people living in the AP Lands - consideration of issues of identification - complainant knew both accused - prosecution case relied almost entirely on evidence of the complainant - whether complainant's evidence was inconsistent with earlier statements - whether complainant's evidence unreliable in particular due to a mental condition - whether prosecution's failure to call certain evidence deprived the accused of evidence which was potentially exculpatory - Held: R and L both guilty of the charge of rape.
Criminal Law Consolidation Act 1935 (SA) s 48, referred to.

R v R, R & ANOR
[2007] SASC 71
Criminal
LAYTON J:
Introduction

The accused R, R and R, LJ, whom I shall simply call “R” and “L”, are both charged with raping a woman whom I shall call “C”, between 17 February 2004 and 18 February 2005 at Amata. The particulars of the offence are that R is charged with having anal sexual intercourse with C without her consent. L is charged with having vaginal sexual intercourse with C without her consent.
Both accused elected for trial by judge alone.
Although the case, in terms of days of trial, was relatively short, it took place over a protracted period of time due to a number of physical difficulties, including availability of counsel, availability of witnesses, the releasing of exhibits for the purposes of forensic examination and problems with finding suitable interpreters. The trial therefore commenced on 19 October 2006 and was completed with addresses on 18 January 2007. The trial occupied nine days of hearing.
The prosecution called evidence from the complainant; Constable Macpherson; Constable Dooley-McDonnell; Senior Constable Karen Brumpton; Detective Brevet Sergeant Cunningham; a forensic scientist Mr Silenieks; and a general practitioner Dr Bagar. There were a number of exhibits including photographs, clothing and a video. In addition, there was a Statement of Agreed Facts as well as statements tendered by consent from a forensic scientist Suzanne Whitehall; a nurse Stewart Roper and a Programming Manager of a television broadcasting station, Rondelle Seden. The defendants called a scientist, Mr Dale Carroll, but did not give evidence themselves.
Overview of the Crown case
The Crown case is essentially simple. In summary the case is that on or about 17 February 2005 C was home alone in her house at Amata in the AP Lands. She had watched television and then…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2007] SASC 71
Decision Date: 2 March 2007

CaseChat Overview and Summary

In the case of R v R, R, both accused were charged with raping the complainant, with R charged with anal rape and L charged with vaginal rape. The complainant, R, and both accused were Aboriginal people residing in the Anangu Pitjantjatjara Yankunytjatjara (AP) Lands. The case was tried before a judge alone. The primary legal issues revolved around the reliability and consistency of the complainant's evidence, the potential impact of her mental health on her testimony, and whether the prosecution's failure to call certain witnesses deprived the accused of exculpatory evidence. The court also considered the identification of the accused, given the small community and close relationships between the parties.

The court scrutinised the complainant's evidence due to the lack of corroboration and noted her limited proficiency in English, which might have affected her comprehension and expression during the trial. The complainant's evidence was further complicated by her use of interchangeable pronouns and her apparent discomfort in discussing the sexual encounter. The court recognised the difficulties in assessing the credibility of Aboriginal witnesses in a court environment. Despite these concerns, the court found the complainant's testimony credible on the major elements of the alleged sexual acts and identification of the accused.

The court concluded that both accused committed acts of sexual penetration without the complainant's consent. It held that L committed vaginal rape and R committed anal rape. The court found that the complainant did not consent to these acts, and the accused either knew she was not consenting or were recklessly indifferent to her consent. The court considered the totality of the evidence, including the complainant's manner of giving evidence and the lack of corroboration, and found both accused guilty beyond reasonable doubt.

The court emphasised the importance of the presumption of innocence and the burden of proof resting on the prosecution to establish guilt beyond reasonable doubt. It highlighted the necessity of closely scrutinising identification evidence and the potential for honest mistakes in such cases. The court found that the prosecution had met the required standard of proof, and both accused were convicted as charged.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

I must also closely scrutinise the evidence of C because the case against the accused relies solely on her evidence, which is not corroborated. Again, this is a matter that I will address in more detail in the course of these reasons for verdict.Background evidence – C C was 21 years of age at the time of giving her evidence. She said that on that night she was living in her grandmother’s house at Amata. She was still at school in Year 11 at Amata although she was 19 years of age. Her sister and a person whom she called her “young father” who was in fact her grandmother’s son, namely her uncle, usually lived at her grandmother’s house. The house The evidence given by C about the house was assisted by photographic and video evidence as well as a drawing by C. Without these aids it would have been very difficult to understand the layout of the house as there was confusion about the rooms of which C spoke and the doors to those rooms. The house was simple, made of galvanised iron with windows and doors and a veranda at the front. The front door led in to a large room in which her grandmother and sometimes others slept, including C from time to time. Photographs of the house were tendered and these were derived from stills taken from a video which was tendered and marked Exhibit P10. The first door on the left, viewed from the front of the house, was C’s bedroom (Exhibit P1 Photograph 10). There were two windows in her room (Exhibit P1 Photograph 8). The window on the left in Photograph 8 is the window identified by her as being the one through which she said L entered on the evening of the offence. A close-up of this window is shown in Exhibit P1 Photograph 3, being the first window in the centre of the photograph, closest to the camera. A further photograph of that window is shown in Exhibit P1 Photograph 5, in which Constable Macpherson demonstrates how the screen on the window was able to be lifted. In addition, C drew a plan of the house (Exhibit P2). This drawing shows the layout including the back of the house which has an area marked “kitchen” and two other areas marked “toilet” and “laundry”. The back door is also shown near the toilet area. Knowledge of English C gave evidence that she can read and write in her own language but she can only read or write “a little bit” in English (T58). She usually spoke Pitjantjatjara (T58).Her knowledge of English was also the subject of cross-examination. She said that her writing was better than her reading (T90). In cross-examination her attention was directed to a hand written statement taken by Constable MacPherson which was signed at the bottom of each page with the name "C" (Exhibit D 26).C indicated that the name on the bottom of each page was in her writing. She was asked to look at the two pages of the statement. After a while she was asked whether she had read both pages. C responded, "only a little bit." (T157) I noted that this answer was consistent with the way in which she appeared on the video to look at the two pages. She did not give the appearance of reading the document. She was then asked whether she could read a little bit of what was on both pages (T157) and she responded, "I don't understand it all.” She indicated that she could read "only a little bit” of the first line of the statement (T158).

Evidence

Evidence Before The Court

In short, I am satisfied that C had known both L and R well. She had known them since she was very young, they had all lived together at Amata for various periods of time and had gone to the same school. Evidence was given by Detective Brevet Sergeant Cunningham that Amata is a very small community of 300 people which includes both indigenous and non-indigenous people. This evidence is of some significance when I consider the issue of C’s identification of accused on that night.C – Manner of giving evidence During the course of giving her evidence, C mostly had her head and eyes downwards, looking towards her lap, occasionally glancing sideways at the interpreter. She was quietly spoken, minimalist with words and sometimes slow in answering questions. At times I considered that even though the interpretation appeared to be excellent, there was nonetheless some uncertainty in C’s comprehension of the questions being asked of her. I also noted that she appeared to sometimes use the plural pronoun “they” or “their” or the plural “boys” or “men” when giving her evidence or giving answers to questions regarding that night, when sometimes she was referring to only one of the persons. The plural was therefore on occasions interchangeable and this was often clarified by later questioning or, alternatively, during cross-examination. I note that judicial directions are sometimes given to juries in other Australian States when they are considering evidence given by Aboriginal witnesses, particularly regarding the inter-changeable use of pronouns by some Aboriginal people. I also noted that C appeared to give evidence more easily when she was not dealing with the sexual encounter, which is understandable. At one stage she specifically mentioned during cross-examination that she felt embarrassed about answering questions (T181).Counsel for the accused had submitted in relation to their own clients that traditional Aboriginal men felt shame when speaking about or hearing sexual matters discussed in the presence of women. C in giving her evidence no doubt felt similar shame, particularly knowing her evidence was being heard by the two accused males and, of course, in being cross-examined by two white males. I acknowledge at this point that both counsel for the accused showed considerable sensitivity when questioning C and their manner was at all times polite and respectful. Nonetheless the situation appeared disturbing to C. This should be taken into account when assessing her evidence, and when deciding whether or not I am satisfied beyond reasonable doubt that the prosecution has proved the case against each of the two accused. When dealing with C’s manner of giving evidence, I also have regard to commonly understood features of traditional Aboriginal persons giving evidence in court. The whole court environment, even if giving evidence by video, is very artificial and stressful. The language inevitably used is more complex than they are used to. They also, as a general rule, tend to agree with or answer “yes” to questions which they may not necessarily understand or do not wish to appear contradict. This makes the assessment of Aboriginal witnesses a particularly vexed issue and indeed that was true in this case.

Decision

Reasons for decision

Considering the evidence in relation to the elements of the offence, I find that the accused L committed an act of penile penetration of the vagina of C. I also find that the accused R committed an act of penile penetration of the anus of C. These acts in my view amounted to sexual intercourse. I also find that C did not consent to these acts and that the actions of each of the accused was such that they either knew she was not consenting or they were recklessly indifferent as to her consent. There was no serious challenge by either of the defendants as to whether there was consensual intercourse, the main challenge concerned identification and more particularly whether anal intercourse had taken place. Therefore the offences have been made out.Conclusion It is necessary for me to now notionally stand back and consider the whole of the evidence before me to decide whether each of the accused is guilty of the offence with which he is charged and whether it has been proved beyond reasonable doubt. There are many matters which require my consideration and there are some matters which require particular consideration. It is necessary for me to have regard to them collectively and not just in an individual separate manner as I have discussed earlier in these reasons. I have specifically taken into account the following matters - ·The mental health of C.·The circumstances of the taking of earlier statements from her.·The alleged inconsistencies as to - -other noises-entry into the house-closing and locking of external doors-whether her bedroom door was open or shut -the lighting in her bedroom-the kicking-the complaint of anal and vaginal rape·The evidence of Dr Bagar ·The identification evidence.·The scientific evidence·The overall context of the manner of C in giving evidence. I have carefully scrutinised C’s evidence in view of the lack of corroboration. I have had some concerns about the reliability of some aspects of C’s evidence as previously discussed. However, taking into account all of these matters and the whole of the evidence in the case, I consider that on the major elements of her identification of the accused and the sexual acts which she alleged each of the accused committed, C was both credible and reliable. The areas of alleged inconsistency and unreliability were mostly concerned with matters of detail which understandably were of lesser importance to C, especially given the violent and demeaning activities which later followed. I am satisfied beyond reasonable doubt that L had penile vaginal intercourse with C without her consent. He did so in circumstances which included kicking her and in which he knew she was not consenting. He also treated her with contempt by urinating on her after the event. I am also satisfied beyond reasonable doubt that R had penile anal intercourse with her without her consent. I also find that this occurred in the overall circumstances in which he was present whilst his younger brother, L, vaginally raped C, and then R in turn anally raped her. I find that he did so knowing she was not consenting to his actions. I also find that he kicked C. I therefore find both accused guilty as charged.

Ratio Decidendi

Legal Principle Established

There were considerable problems in obtaining suitable Aboriginal male interpreters for the accused. On one occasion it was necessary for the whole of the evidence on one day to be read out again to the accused, as it was noted that the male interpreter was not translating both the questions and the answers.Legal considerations and general directions Whilst it is not necessary in a case of trial by judge alone for the Court to set out in the verdict the obvious directions, of which any trial judge is bound to be aware, nonetheless I consider it important for me to do so in this case. I remind myself that an accused person comes before this Court with the presumption of innocence in their favour. The law regards a person as innocent unless their guilt on a particular charge has been proved beyond reasonable doubt. The burden of proving a particular charge beyond reasonable doubt lies wholly upon the prosecution. Neither accused in this case has to prove anything and neither accused person is required to give any evidence themselves. The accused are entitled to rely on any weaknesses in the prosecution case. It is not enough for the prosecution to show a mere suspicion of guilt or even to show that the accused are probably guilty. Nothing short of proof beyond reasonable doubt will suffice. The requirement of proof beyond reasonable doubt extends to each and every element of each offence in respect of each accused. I cannot convict either accused of the offence for which they are individually charged if I have a reasonable doubt as to any element of the charge against him. If I am left with a reasonable doubt about the guilt of either of the accused, I must give that accused the benefit of that doubt and find him not guilty. In this case there are two separate charges tried together on the one information in respect of each accused person. It is necessary for me to take special care to ensure that the method by which the guilt of an accused on any one count may be established, is by considering only that evidence which has been produced in respect of that particular offence against that particular accused. In this case identity of each of the accused is the major issue. It is important in this case that I take account of the fact that there can often be problems with evidence of identification and that care should be taken in assessing the reliability of identification. I recognise that honest witnesses can be mistaken in making an identification and that a mistaken witness can be certain and believe in the identification that they have given. In this case it is necessary for me to bear in mind a number of factors which may affect C's identification of each of the accused. I will consider this aspect more specifically in the course of discussing the evidence. I must also closely scrutinise the evidence of C because the case against the accused relies solely on her evidence, which is not corroborated. Again, this is a matter that I will address in more detail in the course of these reasons for verdict.Background evidence – C