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,…

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.

Continue reading R v Rahmanian

Details

AGLC: R v Rahmanian [2010] SASC 137
Case: [2010] SASC 137
Decision Date: 12 May 2010

CaseChat Overview and Summary

The case of R v Rahmanian involved an appeal against the conviction of the appellant for raping MS on 10 June 2006. The appellant's conviction was based on an incident that occurred after MS had attended a farewell party for friends who were leaving for overseas. MS and a group of friends were driven by the appellant in a taxi to a nightclub in Hindley Street. MS, who was intoxicated, indicated that she wanted to go home at some point during the journey. Despite being provided with her address, MS did not exit the taxi at the nightclub, instead continuing with the appellant to his home at Dover Gardens, where the alleged rape occurred. The appellant was convicted of the offence, and the case was brought before the court on appeal on three grounds. The first ground pertained to the trial Judge's ruling that the appellant had a case to answer, which was dismissed. The second ground related to the safety and reasonableness of the verdict, which was also dismissed. The third ground involved the trial Judge's failure to direct the jury on the use of evidence of MS’s distress, which was granted permission to appeal but ultimately dismissed.

The court was required to consider whether the trial Judge erred in ruling that the appellant had a case to answer and whether the verdict was unreasonable or unsatisfactory in light of the evidence presented. Additionally, the court had to determine whether the trial Judge's failure to direct the jury on the use of evidence of MS’s distress constituted a miscarriage of justice. The court's reasoning focused on the sufficiency of the evidence to support the verdict and whether the trial Judge's direction to the jury was adequate. The court concluded that while the trial Judge's direction could have been clearer, it did not amount to a miscarriage of justice. The evidence presented was sufficient to support the jury's verdict, and the court found no basis for overturning the conviction.

The court dismissed the appeal on all grounds. Permission to appeal was refused on the first ground, and the appeal was dismissed on the second and third grounds. The court found no miscarriage of justice and upheld the conviction of the appellant. The final orders of the court were to dismiss the appeal on all grounds, thereby affirming the appellant's conviction for the rape of MS.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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