R v Shane Michael Weir Quin No. SCCRM 94/37 Judgment No. 4514 Number of Pages 4 Criminal Law and Procedure Jurisdiction, Practice and Procedure Verdict

[1994] SASC 4514

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL KING CJ(1), MOHR(2) AND MATHESON(3) JJ

CWDS
Criminal law and procedure - jurisdiction, practice and procedure - verdict - Two counts of rape and one of assault occasioning actual bodily harm - prosecution case dependent on evidence of alleged victim - verdicts of not guilty of one count of rape but guilty of other two counts - whether verdict of not guilty on one count rendered other verdicts unsafe - verdicts not unsafe.

HRNG ADELAIDE, 18 April 1994 #DATE 18:4:1994

Counsel for appellant:     Mr N Vadasz

Solicitors for appellant:    Nicholas Vadasz

Counsel for respondent:     Ms A M Vanstone QC

Solicitors for respondent: Director Of Public Prosecutions
   (SA)

ORDER
Appeal dismissed.

JUDGE1 KING CJ This is an appeal against convictions by verdict of a jury of crimes of rape and assault occasioning actual bodily harm. The appellant stood trial in the District Court on an information alleging two counts of rape and one count of assault occasioning actual bodily harm.

2. The first count of rape alleged an act of fellatio, the second count an act of vaginal sexual intercourse and the third count was the count of assault occasioning actual bodily harm. The appellant was found not guilty on the first count, but guilty on the second and third counts. The argument presented by his counsel on the appeal was that the verdict of not guilty on the first count necessarily indicated that the jury must have had a doubt about the veracity of the alleged victim and that the verdicts of guilty on the second and third counts were therefore unsafe and unsatisfactory.

3. The appellant and the alleged victim, who was a young woman living alone with her child, met in the Eudunda Hotel on the night of the incident which is the subject of the charges. Both had some drinks there. The alleged victim invited the appellant to her home, he brought a bottle of whiskey to the house. They there played cards and drank some whiskey and with the alleged victim's permission he removed his shirt, it being a hot night.

4. The alleged victim's evidence was that the appellant placed his hand on her leg; she told him not to do that as she had a boyfriend. She alleges that he then attacked her and subjected her to violence and threats. He forced her to perform the act of fellatio upon him and followed immediately by penetrating her vagina with his penis. He imprisoned her in the house by force and threats, both to her and to her child, for the rest of the night. During the night he subjected her to other sexual acts. At one stage he took a razor from a tobacco pouch and inflicted scratch marks on her face saying that he liked to see her suffer pain. Eventually he fell asleep and he left the house on the following morning at about 8 o'clock.

5. The alleged victim then showered and took her child to a friend's house, where she complained of the appellant's conduct. She was then taken to the police. When approached by the police the appellant said that he "had had it" with the alleged victim, but that it was with her consent. Medical examination of the alleged victim disclosed an abrasion to the remains of the hymen and scratch marks on the face with dried blood adherent to the scratch marks.

6. The appellant gave evidence. He said that after he and the alleged victim had played cards and had some drinks they began to kiss one another and that that led to vaginal sexual intercourse which was entirely voluntary. He denied that there had been oral sex. He denied that he had inflicted scratch marks on the alleged victim. He said that they eventually fell asleep but that when he left the house on the following morning there were no injuries on the alleged victim's face.

7. Mr Vadasz, who appeared for the appellant, has stressed that the case was presented to the jury by counsel for the prosecution and, indeed, by the learned trial judge, as a case which depended, essentially, on the view which they took of the credibility of the alleged victim and the appellant.

8. I have given careful consideration to the argument put by Mr Vadasz. It does seem strange to the lawyer, applying lawyer's logic to the evidence in the case, that the jury did feel a doubt about the first count, but not about the second and third counts. One has to remember, however, that a jury does not necessarily approach the issues in a criminal case with the lawyer's logic.

9. As Mr Vadasz himself has stressed, the alleged act of oral intercourse was very closely connected, on the alleged victim's account, with the act of vaginal sexual intercourse which followed. It seems to have been a continuous course of sexual activity.

10. In those circumstances, it would perhaps be not surprising if the jury approached the matter upon the basis that the oral sex was really part and parcel of the incident involving the vaginal sex and that one conviction for rape adequately met the justice of the case.

11. That sort of approach may not appeal to the logic of the lawyer, but trial by jury is not trial by lawyers, and the jury is entitled to approach the matter in the way that it sees fit.

12. The jurors were told by the learned judge that they must approach each count separately and could reach different conclusions on each count.

13. Whether verdicts of not guilty on one count and guilty on another are sufficient to cause an appellate court to have misgivings about the safety of the verdict must depend very much upon the facts of each particular case. In this case, I think the jury's verdict may well be explained in the way that I have mentioned, but in fact, the evidence with respect to the different counts was different. With respect to the charge of vaginal rape, the appellant admitted that there had been an act of vaginal intercourse, although he contended it was with the consent of the alleged victim. Moreover, there was an abrasion of the remains of the hymen. Moreover, with the count of assault occasioning actual bodily harm, there were the scratch marks on the face which the jury may well have considered to be supportive of the appellant's account.

14. With respect to the alleged act of fellatio, (which was the subject of the first count), on the other hand, there was a denial by the appellant that any oral intercourse took place and there was, of course, nothing in the physical evidence to support the allegation. The jury was admonished that it could only find a verdict of guilty on any of the counts which satisfied it beyond reasonable doubt with respect to the particular count and, as I have said, was also told that it could reach different conclusions with respect to the different counts.

15. The fact, in those circumstances, that it saw fit to find a verdict of not guilty on the first count does not, of itself, lead me to have any misgivings about the justness of the verdict with respect to the second and third counts.

16. I have endeavoured to make an independent assessment of the evidence. One must, of course, make due allowance for the advantage which the jury has in seeing and hearing the witnesses. I must say, however, that a perusal of the written transcript leaves me with the impression that the alleged victim was a straight forward and candid witness. She gave a clear and coherent and, on paper at all events, convincing account of the incidents of that night.

17. The appellant's evidence does not, on paper, strike me in the same way. There are aspects of it which lack the ring of truth. His evidence that the alleged victim spoke to him about the conditions under which criminal injuries compensation might be obtained, in the hotel, and his evidence that during the course of the sexual incident she told him that she liked it rough, lacked context and emerged, so far as the written transcript discloses, in a way which is quite unconvincing.

18. I must say that a perusal of the transcript of evidence leaves me with no sense of surprise at all that the jury would have accepted the evidence of the alleged victim and be satisfied with it to the exclusion of reasonable doubt.

19. The verdict of guilty on the second count and the third count involves that the jury were satisfied beyond reasonable doubt as to the substantial truth of the account of the alleged victim. It is not necessary, of course, for this appellate court to arrive at any definitive conclusion as to what explanation there might be for the jury's decision to render a verdict of not guilty on the first count; it is sufficient for this court to be satisfied that that course, considered against the background of the evidence in the case, does not give rise to any misgivings as to the safety of the verdict.

20. Having considered all aspects of the case, including the argument presented by Mr Vadasz, I am left with a conviction that this verdict was a safe verdict.

21. In my opinion, therefore, the appeal against conviction should be dismissed.

JUDGE2 MOHR J I agree.

JUDGE3 MATHESON J I agree.