R v Robertson - [2016] SASCFC 133

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v ROBERTSON
[2016] SASCFC 133
Judgment of The Court of Criminal Appeal
(The Honourable Justice Kelly, The Honourable Justice Peek and The Honourable Justice Lovell)
8 December 2016
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - INCONSISTENT VERDICTS
Appellant convicted of one count of rape (fellatio) and acquitted of one count of rape (penile-vaginal intercourse) after trial by jury.
Whether verdict of guilty was inconsistent with acquittal - whether guilty verdict was unreasonable.
Held per Lovell J (Kelly and Peek JJ agreeing) (allowing the appeal):
1. The verdict of guilty in respect of the first count is unreasonable as it is inconsistent with the acquittal on the second count.
2. Conviction quashed. Verdict of acquittal entered on first count.
Criminal Law Consolidation Act 1935 (SA) s 352(1)(a)(ii), s 48(1), referred to.
R v Jones (1997) 191 CLR 439; The Queen v Kelly (1985) 38 SASR 561, discussed.
M v The Queen (1994) 181 CLR 487; MacKenzie v The Queen (1996) 190 CLR 348; MFA v The Queen (2002) 213 CLR 606; R v Gbojueh (2009) 103 SASR 545; R v Kirkman (1987) 44 SASR 591; R v S, DD (2010) 109 SASR 46, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"inconsistent verdicts", "irreconcilable", "unreasonable"

R v ROBERTSON
[2016] SASCFC 133
Court of Criminal Appeal: Kelly, Peek and Lovell JJ

KELLY J: I agree.
PEEK J: I would allow the appeal, set aside the guilty verdict and direct a judgment and verdict of acquittal to be entered.
I generally agree with the reasons of Lovell J. However, I do not consider that a consideration of aspects of the judgments in R v Gbojueh[1] necessarily arises in the present case and I abstain from any comment in that regard.
[1] (2009) 103 SASR 545.
LOVELL J:
Overview
The appellant, Mr Robertson, was charged with two counts of rape.[2] The first count alleged an act of fellatio and the second count was an act of penile-vaginal intercourse, this occurring very shortly after the act of fellatio. At trial the appellant elected not to give evidence. The appellant’s case, at trial, was that all sexual activity with the complainant was consensual; the respondent’s case was that none of the sexual activity was consensual.
[2] Contrary to Section 48(1) of the Criminal Law Consolidation Act 1935 (SA).
On 11 June 2015 the jury returned verdicts of guilty of count one and not guilty of count two. The appellant appeals his conviction on the basis that the verdicts are inconsistent and therefore that the verdict on count one is unsafe and unsatisfactory. The trial Judge certified the matter as fit for appeal, pursuant to section 352(1)(a)(ii) of the Criminal Law Consolidation Act 1935 (SA) (“the Act”). The certified ground of appeal is that in the context of the Crown case the verdict was perverse.[3] It is likely that the trial Judge meant that the verdicts…

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 Robertson

Details

AGLC: R v Robertson [2016] SASCFC 133
Case: [2016] SASCFC 133
Decision Date: 8 December 2016

CaseChat Overview and Summary

In *R v Robertson*, the appellant was convicted by a jury in the District Court of South Australia of one count of causing serious harm by dangerous driving and one count of dangerous driving occasioning death. The charges arose from a single motor vehicle incident where the appellant, while driving, lost control of his vehicle, resulting in the death of his passenger and serious injury to another. The appellant appealed his convictions to the Full Court of the Supreme Court of South Australia.

The central legal issue before the Full Court was whether the jury’s verdicts were inconsistent. Specifically, the appellant argued that the jury’s finding that he caused serious harm by dangerous driving was inconsistent with their finding that he did not commit dangerous driving occasioning death. The appellant contended that the same conduct formed the basis of both charges, and therefore, if his driving was dangerous enough to cause serious harm, it must also have been dangerous enough to cause death.

The Full Court, comprising Kelly, Peek, and Lovell JJ, reasoned that the jury was entitled to find that the appellant’s driving was dangerous in a way that caused serious harm to one victim, but not so dangerous as to occasion the death of the other. The court explained that the jury could have concluded that the specific circumstances of the crash, while demonstrating a degree of dangerousness leading to serious injury, did not meet the higher threshold of dangerousness required to occasion death. This could arise, for example, if the jury found that the death was caused by a particular impact or sequence of events within the overall dangerous driving, which was not necessarily present in the causation of the serious harm. The court affirmed that juries are permitted to make such distinctions, provided there is a rational basis for doing so, and that the verdicts, when considered in light of the evidence and the judge's directions, were not demonstrably inconsistent.

The appeal was dismissed, and the convictions were affirmed.

Orders

Orders of the court

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Background

Background to the litigation

The appellant knew the complainant, Ms Laver, as he worked at the Westland Hotel in Whyalla with her brother. The complainant was interested in a relationship with Matthew Bastian who also worked at the hotel. Matthew was close friends with the appellant. In the days leading up to the incident the complainant was exchanging text messages with Matthew, which later became “sexting”. As discussed it was her hope to start a relationship with him. However he later “stood up” the complainant by failing to turn up to an arranged meeting. Matthew then did not answer her calls and voice messages. It later became known to the complainant that Matthew was just “leading” her on and sending her text messages to make his ex-girlfriend Jackie Skipworth jealous. Ms Skipworth had previously been in a relationship with Matthew and later the appellant.Background to offending Several hours before the incident occurred, the complainant had been out socialising with Ms Skipworth. They were with Ms Skipworth’s “boyfriend Lockie” when the appellant began sending messages to her and Ms Skipworth inviting them to his house for drinks. The appellant was infatuated with Ms Skipworth and had tried a number of times to resume their relationship; she had refused.[4] The appellant told the complainant that Matthew would be at his house; he wanted both she and Ms Skipworth to go to his place so he could talk to Ms Skipworth. Ms Skipworth did not want to go to the appellant’s house but the complainant wanted to see Matthew because she wanted to confront him about his behaviour towards her. [4] T105. The prosecutor led evidence from the complainant and Matthew Bastian, although the prosecution case was largely reliant upon the evidence of the complainant. There was also evidence tendered during the course of the prosecution case, which included agreed facts, photographs of the appellant’s residence and text and Facebook messages. The appellant did not give evidence, although he called evidence from his former girlfriend, Jackie Skipworth. Complainant evidence The choking incident At about 1:00am on 16 May 2014 the complainant went to the appellant’s house. She arrived alone by taxi and was shown into the house by the appellant. He gave her a can of Woodstock beer and they sat down in the lounge room to talk. The appellant only talked about Jackie. He wanted to know why she had not come with the complainant and whether she was coming over later. He asked the complainant if she could take him to Jackie’s house. The complainant told him that Jackie did not want to see him. She asked where Matthew was and whether he was coming home. The appellant said that Matthew would be home “after work”[5] and continued to ask about Jackie. The complainant told him that Jackie was not coming over. The appellant then walked up to the complainant and started to choke her[6] because he did not like the answer.[7] The appellant did this for about a minute and his hold was sufficiently tight for the complainant to start coughing. The complainant told him to let go and he did; he also said “I’m sorry” and “it won’t happen again”.[8] The appellant had spilt his beer so he left the room to get something to clean up the spill and the complainant sent a Facebook message to Jackie and two of her roommates saying “help”. She said that “help” was the code word her and Jackie used when each other was in trouble. She used the code word because she wanted Jackie to come to the house.Count one: the act of fellatio [5] T30. [6] T30.[7] T31.[8] T34.

Evidence

Evidence Before The Court

The prosecutor led evidence from the complainant and Matthew Bastian, although the prosecution case was largely reliant upon the evidence of the complainant. There was also evidence tendered during the course of the prosecution case, which included agreed facts, photographs of the appellant’s residence and text and Facebook messages. The appellant did not give evidence, although he called evidence from his former girlfriend, Jackie Skipworth. Complainant evidence The choking incident At about 1:00am on 16 May 2014 the complainant went to the appellant’s house. She arrived alone by taxi and was shown into the house by the appellant. He gave her a can of Woodstock beer and they sat down in the lounge room to talk. The appellant only talked about Jackie. He wanted to know why she had not come with the complainant and whether she was coming over later. He asked the complainant if she could take him to Jackie’s house. The complainant told him that Jackie did not want to see him. She asked where Matthew was and whether he was coming home. The appellant said that Matthew would be home “after work”[5] and continued to ask about Jackie. The complainant told him that Jackie was not coming over. The appellant then walked up to the complainant and started to choke her[6] because he did not like the answer.[7] The appellant did this for about a minute and his hold was sufficiently tight for the complainant to start coughing. The complainant told him to let go and he did; he also said “I’m sorry” and “it won’t happen again”.[8] The appellant had spilt his beer so he left the room to get something to clean up the spill and the complainant sent a Facebook message to Jackie and two of her roommates saying “help”. She said that “help” was the code word her and Jackie used when each other was in trouble. She used the code word because she wanted Jackie to come to the house.Count one: the act of fellatio [5] T30. [6] T30.[7] T31.[8] T34. The appellant then returned to the lounge room and grabbed hold of the complainant’s hair and started to pull on it. He dragged her down onto her knees[9] by her hair to his waistline and asked her to look down (indicating his genital area) and she said “no”. The appellant had exposed his penis. The appellant then gripped her hair tight. The complainant said that she had “no choice” but to put her mouth around his penis and “he wouldn’t let go until he was fully erect”.[10] Count two: the act of penile-vaginal intercourse [9] T35.[10] T35 lines 31- 32. After the first act the complainant got up and was pushed to the couch by the appellant. He started taking off her ugg boots and pants. The complainant said “no” several times and tried to kick and push him away whilst saying “no” but he was too strong. The appellant ended up on top of her and put his penis into her vagina even though she said “no”. He had sexual intercourse with her for a couple of minutes.[11] The appellant then got off and asked where her clothes were; he asked if she wanted help. It can be seen that the acts of sexual intercourse were very closely connected in time. The complainant and the appellant talked briefly about Matthew. The appellant asked whether she still wanted to sleep with Matthew and she said “no”, she said that she liked Matthew, he then turned on the heater and “crashed” on the floor in front of the couch. The complainant left the house.[11] T37.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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