R v R, R & R, LJ

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SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v R, R & R, LJ

[2008] SASC 35

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice White)

20 February 2008

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT - WHERE APPEAL DISMISSED

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 - CONDUCT OF LEGAL PRACTITIONERS

Permission to appeal and appeals against conviction - appellants each convicted of rape following trial by judge alone - appellants and complainant Aboriginals living on the Anangu Pitjantjatjara Lands - whether trial judge adequately directed herself - whether recent complaint evidence improperly used - whether identity established on the evidence - whether verdict unreasonable and unsupported by the evidence - whether complainant's mental health so affected her reliability and credibility that her uncorroborated evidence should not have been accepted - whether verdict unsafe and unsatisfactory as a result of the manner in which the trial was conducted by counsel - whether inadequacy of police investigation causative of a miscarriage of justice.

Held:  Appeals dismissed.

Ali v R (2005) 214 ALR 1; Nudd v R (2006) 225 ALR 161; Penney v R (1998) 155 ALR 605; R v Birks (1990) 19 NSWLR 677; R v Green (2000) 78 SASR 463; R v Heeremans (2007) 249 LSJS 49; R v Hughes [2007] SASC 318; R v Keyte (2000) 78 SASR 68; The Queen v Apostilides (1984) 154 CLR 563; TKJW v The Queen (2002) 212 CLR 124, applied.
Gipp v The Queen (1998) 194 CLR 106; Jago v District Court (NSW) (1989) 168 CLR 23; Jones v The Queen (1997) 191 CLR 439; M v The Queen (1994) 181 CLR 487; R v R, R & Anor [2007] SASC 71; Richardson v The Queen (1974) 131 CLR 116; Whitehorn v The Queen (1983) 152 CLR 657, considered.

R v R, R & R, LJ
[2008] SASC 35

Court of Criminal Appeal:       Gray, Sulan and White JJ

GRAY J.

Introduction

  1. These are appeals against conviction.

  2. On 2 March 2007, following a joint trial by judge alone in the Supreme Court, each appellant, R, R and R, LJ, was convicted of a separate offence of rape.[1]  Each has appealed with leave against his conviction on the ground that the verdict was unreasonable and unsupported by the evidence.  Each has also sought permission to appeal on other grounds.

  3. On the hearing of the appeal, the Court directed that the applications for permission to appeal be fully argued so that in the…

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Details
Case
[2008] SASC 35
Decision Date

CaseChat Overview and Summary

The case of R v R, R & R, LJ concerns appeals by the appellants, R, R and R, LJ, who were convicted of the rape of W, a female aged 19, by a judge sitting without a jury. The incidents occurred at Amata on the Anangu Pitjantjatjara Lands. The appellants challenged their convictions on multiple grounds, primarily focusing on the adequacy of the trial Judge's directions, the reasonableness of the verdict, and the conduct of their legal counsel. The appeals were heard and dismissed by the court. The primary issues before the court were whether the trial Judge's self-directions and findings concerning the complainant's evidence were inadequate or erroneous, and whether the verdicts of guilt were unreasonable and unsupported by the evidence. Additionally, the appellants argued that the verdicts were unsafe and unsatisfactory due to the alleged failure of trial counsel to investigate and lead certain evidence. The court examined the trial Judge's directions and found that she had closely scrutinised the complainant's evidence, taking into account the lack of corroboration, the complainant's mental health, and the inconsistencies in her evidence. The court concluded that the trial Judge's scrutiny of the evidence was thorough and that it was open to her to accept the complainant's evidence. The court also found that the verdicts were supported by the evidence and were not unreasonable. In light of this, the court refused permission to appeal and dismissed both appeals.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In this case, the trial Judge used the forumla of warning herself and directing herself as if she was the jury. It is open to a trial Judge to adopt that formula. However, there is no requirement to do so. If the reasons are sufficient so as to explain why evidence was admitted, what use was made of the evidence, the inferences drawn from the evidence and the approach of the judge to the evidence so that an appellate court can ascertain the judge’s reasoning, that is sufficient. There is no rule as to the test of the adequacy of a judge’s reasons. Each case will depend upon its circumstances. I now turn to the directions in this case.The complainant’s evidence Counsel for R complains that the trial Judge’s warning, to herself, in relation to W’s evidence was not sufficiently strong given the absence of any corroborative evidence, the mental health of W and the inconsistencies in W’s evidence regarding the circumstances surrounding the rapes and the manner in which they took place. It is plain, from the reasons of the trial Judge, that she was acutely aware of the need to closely scrutinise the evidence of W in arriving at her verdict. Early in her reasons, the trial Judge said: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 [W]'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 [W] 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.[24][24] R v R, R & Anor [2007] SASC 71, [17]-[18]. Later, the trial Judge said: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 [W].·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 [W] in giving evidence.I have carefully scrutinised [W]’s evidence in view of the lack of corroboration. I have had some concerns about the reliability of some aspects of [W]’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, [W] 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 [W], especially given the violent and demeaning activities which later followed.[25][25] Ibid, [152]-[154].

Decision

Reasons for decision

GRAY J
The appellate court does not have the advantage of seeing and hearing the witnesses. The complainant was fully tested in cross-examination and it was open to the trial Judge to accept her evidence, having regard to all of the evidence in the trial. My review of the evidence has allowed the conclusion that the verdicts of guilty were not unreasonable. The verdicts were supported by the evidence. The review confirms that the verdicts were the appropriate verdicts on the evidence. Conclusion I would refuse permission to appeal as sought. I would dismiss both appeals. SULAN J: On 2 March 2007, the appellants, R, R and R, LJ, to whom I shall refer as ‘R’ and ‘L’ respectively, were each convicted by a judge sitting without a jury of the rape of W, a female aged 19. R was found guilty of committing anal sexual intercourse against W without her consent; L was found to have committed vaginal sexual intercourse against her without consent. R, L and W are all young Pitjantjatjara Aboriginals. The rapes were alleged as having been committed at Amata on the Anangu Pitjantjatjara Lands (‘the AP Lands’). Each appellant appeals against his conviction. The history of the appeals may be summarised as follows. On 25 May 2007, a Judge heard each appellant’s application for permission to appeal his conviction. In broad terms, both appellants sought permission to appeal on two bases. First, that the trial Judge’s self-directions and findings in relation to W’s evidence were inadequate and or erroneous and, secondly, that the verdict of guilty was unreasonable and could not be supported having regard to the evidence. Each appellant was granted permission to appeal on the basis that the verdict of guilty was unreasonable and unsupported by the evidence. The Judge refused permission to appeal on the ground that the trial Judge had misdirected herself and that her findings were inadequate in relation to W’s evidence. Before this Court, each appellant sought permission to appeal on those grounds which had been rejected. In addition, counsel for each appellant sought permission to appeal on the basis that the verdict was unsafe and unsatisfactory having regard to the failure of trial counsel to investigate and lead evidence on a number of matters relating to the complainant and the investigation conducted by police and other agencies. The Court granted leave to amend the notices to add a further ground of appeal along these terms, however, counsel for L subsequently advised the Court that his client was not pursuing the additional ground. Before turning to the grounds of appeal in detail, it is appropriate to observe the manner in which the trial unfolded.The trial In her reasons for verdict of 2 March,[15] the trial Judge summarised the Crown case as follows:The Crown case is essentially simple. In summary the case is that on or about 17 February 2005 [W] was home alone in her house at Amata in the AP Lands. She had watched television and then went to bed. She was woken by noises and woken again when a person, who said his name was “L”, came through the window of her bedroom. Shortly after, she saw his brother, R, come through the door of her bedroom. She was still in bed. Both of them kicked her and her clothing was torn off. First, L had penile/vaginal intercourse with her without her consent, and then R had penile/anal intercourse with her without her consent. They then left.[16][15] R v R, R & Anor [2007] SASC 71.[16] Ibid, [5].

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

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