R v Rahmanian - [2010] SASC 137

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v RAHMANIAN
[2010] SASC 137
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Sulan and The Honourable Justice Layton)
12 May 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT - CONSENT
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - PRIMA FACIE CASE OR CASE TO ANSWER
Appeal against conviction - appeallant convicted of rape - whether Judge erred in ruling that appellant had a case to answer - whether verdict unsafe and unsatisfactory - whether Judge erred in failing to direct jury as to the use to be made of evidence of complainant's distress.
Driscoll v The Queen (1977) 137 CLR 517; R v Blayney & Blayney (2003) 87 SASR 354, applied.
Doney v The Queen (1990) 171 CLR 207; R v Lang (1975) 62 Cr App Rep 50; R v Malone (1998) 2 Cr App Rep 447; R v Francis [1993] 2 Qd R 300, considered.

R v RAHMANIAN
[2010] SASC 137
Court of Criminal Appeal: Doyle CJ, Sulan and Layton JJ

DOYLE CJ: I agree with the orders proposed by Sulan J, and with the reasons that he gives for making those orders. There is nothing that I wish to add.
SULAN J: The appeal raises the issue of lack of consent when a complainant has no memory of the events surrounding an act of sexual intercourse with a defendant.
The underlying facts in this case are not in dispute. The area of dispute is what inferences and conclusions can properly be drawn from the evidence.
The appellant was convicted of raping MS on 10 June 2006 at his home at Dover Gardens. There are three grounds of appeal. First, that the trial Judge erred in ruling at the close of the Crown case that the appellant had no case to answer. Permission to appeal was refused on this ground. Secondly, that the verdict was unsafe and unsatisfactory and not supported by the evidence. At the hearing of the appeal, counsel for the appellant sought permission to add a third ground of appeal, that there has been a miscarriage of justice in that the trial Judge erred in failing to direct the jury as to the use to be made of evidence of MS’s distress.
The facts
MS was 19 years of age at the relevant time. On Friday, 9 June 2006, she attended a farewell party for a group of friends who were leaving to travel overseas. The group drank alcohol at various places, eventually moving to the Oxford Hotel at North Adelaide. At about 1.30 am, a number of the group, including MS left the hotel and caught a taxi driven by the appellant. They were driven to a nightclub in Hindley Street. All those in the car were intoxicated to a degree.
When the taxi stopped in Hindley Street, MS indicated that she wanted to go home. She lived at Goodwood Road, Unley Park. She was in the back seat. Her friends described her as being intoxicated and tired. She had been sleeping for some of the trip between the Oxford Hotel and Hindley Street.
The witnesses variously described MS’s condition. Witness Mr B said:[1]
[1] T 50.
Q.During the taxi ride did you see or hear from M at all.
A.Yes.
Q.How did she appear to you.
A.Tired and like she wanted to go home, like her night had finished pretty much.
Q.Was she awake.
A.Yes.
Q.When the taxi stopped you got out, I assume.
A.Yes.
Q.Did the others get out of the taxi.
A.Yes.
Q.All of them.
A.Except M, yeah.
Q.How did M appear when she was still in the taxi and you’d gotten out.
A.We – I asked her if she wanted to come out with us and she said no, so she had obviously had enough.
Q.What did the group decide to do then.
A.We told the taxidriver her address and told him to take her home and we went into the club.
Q.Do you recall who spoke to the taxidriver.
A.I gave him her address.
Witness Mr F said:[2]
[2] T 104.
Q.Whereabouts did you get that taxi.
A.Just outside of the Oxford. I sat in the middle, M sat on my right, Brett sat on my left and Shari was in the front.
Q.How was M in the taxi.
A.Passed out on me five seconds after we got in.
Q.How long was the taxi trip.
A.10 or 15 minutes.
Q.Did M remain passed out for the journey.
A.Not completely passed out but she was asleep on my shoulder most of it.
F said that when the taxi stopped in Hindley Street, MS awoke. She told him that she wanted to go home. F directed the appellant to her address at Goodwood Road.
Mr H gave evidence that, when the group arrived at Hindley Street, he and others attempted to persuade MS to get out of the taxi, but she was too intoxicated. He said she was not particularly responsive.
As to her state of intoxication, MS gave evidence that she had been drinking alcohol throughout the night. She had a partial and vague memory of being at the Oxford Hotel. She did not recall getting into the taxi or arriving at the appellant’s house. Her first memory is of waking up and seeing the appellant standing in the doorway of a bedroom. She was lying on the bed.
The appellant, who was 56 years of age at the time, drove away from Hindley Street with MS in the rear of the taxi. The time at which the taxi left Hindley Street was 1.57 am. The taxi is equipped with a GPS tracking system which was able to track the movements of the taxi between 1.57 am and 2.22.45 am, when the system was shut off.

It is not disputed that the taxi left Hindley Street and travelled towards Goodwood Road. It diverted away from the area near MS’s home, and travelled towards the suburb where the appellant lived.
The movements of the taxi were as follows. At 1.57.31 am, the taxi was in the city area. At 1.58.38 am, the taxi had moved from the city zone to the Goodwood zone. At 2.02 am, the taxi was in the Cumberland Park zone, which is near MS’s home. The taxi then moved away to the Marion zone, and finally logged off at 2.22.45 am. The appellant’s home is at Joyner Street, Dover Gardens, which is near the Marion zone.

MS had no memory of any of those events. Her memory is that she awoke to find herself under a quilt on a bed. Her jeans were on, but the zipper was unzipped. She was wearing underpants and a top, but her bra had been removed. When she realised that she was away from her home in a strange bed, she begged the appellant to take her home, which he eventually did.
When she arrived home, she was met by her flatmate, who described her as being very distressed. It was both the prosecution and defence case that MS was distressed because she had no memory of the events of that evening after she had left the Oxford Hotel. It was never part of the prosecution case that her distress was due to her knowledge or belief that she had been sexually assaulted. Later that day, after urging from her friends to report the incident, MS was medically examined and sperm of the appellant was found in a sample taken from her during the examination. There was no dispute that the appellant had sexual intercourse with MS on the night.
On 12 June 2006, MS’s shoes, which had been left in the taxi, were left on her front porch. In February 2007, a jar of honey was left at the doorstep of MS’s residence. The honey was addressed to Kylie S-S. Kylie is a friend of MS’s and had loaned her mobile phone to MS on the night of the incident. MS had removed Kylie’s SIM card and replaced it with her SIM card. MS had lost the phone and the SIM card during the evening. Because the phone belonged to Kylie, when it was switched on, the screen displayed “Kylie’s phone”. In February, about the time the honey had been delivered, Kylie had received telephone calls during the night. She returned the call the following day. A person with a thick accent answered and spoke about a jar of honey being dropped off at MS’s address. The honey had been addressed to Kylie. It is apparent that the appellant, having found the phone which MS had lost, thought MS’s name was Kylie, because that was the name programmed into the phone.
It was not until February 2007, after the appellant had called Kylie’s number, that the police eventually tracked him down.
One of the arguments of counsel for the appellant is that the appellant’s conduct was not consistent with a person who had knowingly raped MS. Counsel for the Crown submits that, by the time the appellant actually phoned Kylie, some months had gone by and he may well have felt it was safe to make contact.
The prosecution case is that MS was too intoxicated to have made a voluntary decision to consent to the appellant having sexual intercourse with her.
The trial
Counsel for the appellant at trial submitted no case to answer. The trial Judge rejected the submission. The trial continued and the appellant did not give evidence, nor did he call any witnesses. In rejecting the submission of no case to answer, the trial Judge referred to Doney v The Queen,[3] in which the High Court stated that:
… if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision.
[3] (1990) 171 CLR 207, 214-5.
In my view, the evidence was capable of supporting a conviction. It is beyond dispute that a complainant may be so drunk, or so tired and, therefore, asleep, that she may be incapable of freely and voluntarily giving consent.[4]
[4] See R v Lang (1975) 62 Cr App Rep 50; R v Malone (1998) 2 Cr App Rep 447; R v Francis [1993] 2 Qd R 300; R v Blayney and Blayney (2003) 87 SASR 354.
The evidence in this case established that MS was intoxicated, that she was asleep for some of the time whilst travelling in the taxi from the Oxford Hotel to Hindley Street, that she was very tired and, even though awake when the taxi stopped in Hindley Street, she wanted to go home immediately. The taxi proceeded towards her home. It then diverted and eventually must have arrived at the appellant’s home. Some time between 2.22 am and about 5 am, the appellant had sexual intercourse with MS, who had no memory of any of the events of that night after she left the Oxford Hotel.
The inference that she was asleep and not conscious of her surroundings at the time that she arrived at the appellant’s home until she awoke later that morning, after which time sexual intercourse had occurred, was open upon the prosecution case. MS’s evidence, together with the forensic evidence, which established that the appellant’s sperm was found in MS’s vagina, was capable of supporting the prosecution case. It was open to the jury, as the jury eventually did, to conclude that she did not consent to the act or acts of sexual intercourse and that, because of her condition, the appellant must have been aware that she had not given her consent.
I would refuse permission to appeal for the reason that it was not reasonably arguable that the Judge was in error in refusing the application of no case to answer.
Is the verdict unsafe and unsatisfactory?
The test of whether a verdict is unsafe and unsatisfactory leading to a miscarriage of justice is whether the court is satisfied that no reasonable jury, properly directed, could have failed to return a verdict of not guilty on the evidence before it, had it applied itself to the task in a proper manner, making in favour of the accused the presumption of innocence and, bearing in mind the necessity that the charge be proved beyond reasonable doubt. Put another way, that no reasonable jury, properly directed, could fail in the performance of their duty on the evidence before them, to have acquitted the accused of the charge laid against him.[5]
[5] See Driscoll v The Queen (1977) 137 CLR 517, 524.
Counsel for the appellant submits that, on the evidence presented to the jury, it was not open to them to have been satisfied beyond reasonable doubt that MS did not consent. Counsel submits that the evidence cannot exclude the reasonable possibility that MS was conscious and consenting, or appearing to consent, during the act of sexual intercourse. It is submitted that MS’s lack of memory cannot assist in excluding that reasonable possibility.
Counsel for the appellant relies upon a number of matters in support of his submission. He places particular weight upon a number of photographs which were taken of MS whilst she was at the Oxford Hotel on the night. He submits that those photographs demonstrate that, at that time, MS was conscious and able to respond and react to others around her, which negates the suggestion that, when she was in the taxi shortly thereafter, she was so intoxicated that she fell asleep. He submits that the fact that the complainant has no memory of the act of sexual intercourse cannot exclude, as a reasonable possibility, that she consented to sexual intercourse taking place at the appellant’s home. Counsel points to a number of additional facts which support his primary submission being, first, that the appellant drove MS to his own home, rather than another location; secondly, that MS was dressed when she awoke, suggesting she had dressed herself; thirdly, that the appellant returned her shoes to her home some two days after the incident; fourthly, that some weeks later he delivered a jar of honey to her home; and, fifthly, that he attempted to contact MS by telephoning the mobile phone to talk to her about delivering the honey.
Counsel for the appellant contends it was not open to a jury to be satisfied beyond reasonable doubt of the guilt of the accused. Counsel for the prosecution submits that there was evidence from which the jury could, and must, have been satisfied beyond reasonable doubt that MS did not consent to the appellant’s conduct.
The prosecution case was circumstantial. The prosecutor relied on the following evidence. First, the intoxication and tiredness of MS. Secondly, her expressed desire to be driven home. Thirdly, that the appellant was considerably older and a complete stranger to MS. MS had been in the back of the taxi when it left Hindley Street and, up to that time, had shown no interest in continuing to socialise with her friends. Her wish was to go home. There is an inherent unlikelihood of MS changing her mind en route and agreeing to go with a stranger to his home and agreeing to have sexual intercourse with him without knowing anything about him, including his name or where he lived.
No explanation was given by the appellant of what had occurred that evening. The jury were required to decide the case upon the prosecution evidence. I accept that no inference against the appellant can be drawn from the failure of the appellant to give evidence. Nevertheless, when considering whether it was open to the jury to draw the conclusion beyond reasonable doubt that MS was not consenting, or that the appellant could not have reasonably believed that she was consenting, the fact that there was no explanation by the appellant of what occurred that evening is significant when the question is whether a jury, properly directed, could conclude beyond reasonable doubt that the appellant was guilty.
The appellant makes no complaint about the directions given to the jury by the trial Judge. The trial Judge directed the jury that they could only convict the appellant if they were satisfied that his guilt was the only reasonable inference that could be drawn from the evidence. She made it clear that if on the facts, as the jury found them, there was any reasonable explanation consistent with the appellant’s innocence, then he must be acquitted.
In my view, without an explanation from the appellant of how it came about that MS went with him to his home, it was open to the jury to be satisfied beyond reasonable doubt of his guilt. It does not follow that the fact that there was no direct evidence from MS that she did not consent, that the prosecution case is flawed. The law is clear that consent must be actual consent, that is, a positive decision by a victim that he or she is consenting.[6]
[6] See R v Blayney and Blayney (2003) 87 SASR 354.
No adequate basis has been established to conclude that the verdict of the jury is unsafe and unsatisfactory and that it should be overturned. I would dismiss the appeal on this ground.
Distress
Counsel for the appellant submits that when MS awoke in a strange bed, she was confused. On arrival at her home in the evening, she was upset. Later, after the medical examination, she felt disgusting. She was sobbing when she arrived at her home. The trial Judge referred to the evidence of distress, but gave no direction to the jury about how the evidence is to be used on the issue of consent. Counsel submits that the appellant’s emotional state required a direction by the trial Judge that evidence of her distress could not be used as indicative of MS’s lack of consent. The basis of his submission is that, as she could not recall the events of the night and, in particular, that the appellant had sexual intercourse with her, her distress when she arrived home could not have been referable to the appellant having had sexual intercourse with her, or to her lack of consent to his conduct.
Counsel for the Crown submits that the evidence of distress was led to demonstrate a genuine absence of memory. It was not led to show that the conduct of MS was consistent with a person who had been raped. The prosecution case was simply that the evidence was relevant to support her contention of a lack of memory. Counsel submits that there was no dispute in the case that MS had no memory of the events at the appellant’s home.
The defence case and the prosecution case were at one, that MS had no memory. There was no dispute that she was distressed. Her state of distress was led to support her contention that she had no memory. It is not surprising that the Judge did not direct the jury in the usual way that distress could be used to show consistency in relation to lack of consent. Neither the prosecution nor the defence suggested that MS’s distress was relevant to consent. It was never disputed that her distress was because she could not recall the events of the night. There was no requirement to give the direction that the appellant now claims should have been given. The jury’s attention was drawn to the circumstantial evidence upon which the prosecution relied to established lack of consent. MS’s distress when she arrived home was not referred to as part of the circumstantial case against the appellant.
This was a case in which it was not necessary for a direction from the trial Judge about the use that can be made of the evidence of distress to the issue of consent.
There was no miscarriage of justice. I would grant permission to the appellant to include ground 3 in the grounds of appeal. I would grant permission to appeal on ground 3, but dismiss the appeal on that ground.
Conclusion
As to ground 1, permission to appeal is refused.
As to ground 2, the appeal is dismissed.
As to ground 3, permission to appeal is granted. The appeal is dismissed.

LAYTON J: I agree that the appeal should be dismissed and I respectfully agree with the reasons given by Sulan J.