R v Simpson No. Sccrm-98-68 Judgment No. S6802

[1998] SASC 6802

R  v  SIMPSON
[1998] SASC 6802

Court of Criminal Appeal
Coram:  Millhouse, Perry and Nyland JJ

Nyland J

1     This is an appeal against conviction.  The appellant was found guilty by verdict of a jury of two counts of rape which were alleged to have occurred at Whyalla on 13 April 1997.  The first count alleged an act of fellatio and the second count alleged an act of vaginal sexual intercourse. 

2     At the relevant time, the complainant P was aged 18.  She had moved to Whyalla where she was a nursing student at the Whyalla campus of the University of South Australia.  The appellant was a member of the South Australian police force and was stationed in Whyalla.  P did not know anyone when she first arrived in Whyalla.  Subsequently she made friends with a young woman called Julie Phillips who was the daughter of the local police superintendent, and another woman called Karen Gill.

3     On the evening of Saturday 12 April 1997, P went to visit a male friend.  She spent the evening with him.  She left his home at about 2 am on Sunday 13 April 1997 and returned to her home.  As she did not feel tired she decided to read for a while.  At about 2.30 am she received a call from Julie Phillips who asked her to go to the Sundowner Hotel as there was someone she wanted her to meet.  This call was on a mobile phone which was quite crackly and eventually cut out.  Shortly afterwards Julie rang again but the phone once again cut out.  About five minutes later Julie phoned P on a public phone and again asked her to go to the Sundowner and meet a friend of hers called “Simmo”.  P also spoke to “Simmo” on the telephone.  P asked him why he wanted to meet her if he did not know her.  He replied that Julie had described her to him.  She eventually decided to go to the Sundowner which was about five minutes drive from her home.  The Sundowner apparently was a regular late night meeting place for young people in Whyalla.  P was familiar with the establishment and had frequented it in the past with Julie. 

4     P met Julie in the front of the hotel as arranged.  A short time later P was introduced to the appellant who was described as a gardener who worked for Julie’s father.  The appellant proceeded to engage P in conversation and twice within a very short space of time asked her whether she would have sex with him.  In the course of the conversation he told her that her friend Julie had implied that she was “easy”.  P rejected the appellant’s advances.  She said she did not give him her address or phone number.  She was hurt by the appellant’s comments and by the fact that she had been “set up” by her friend.  She left the hotel and returned to her home, arriving there about 4 am. 

5     P said that at about 4.30 am, there was a knock at the door.  She thought Julie had come to apologise.  She changed into tracksuit pants and a zip-up cardigan and opened the door.  As it turned out it was the appellant who walked in.  He said he had just dropped Julie home and she had given him P’s address.  He drove past and saw the light on.  P said that the appellant appeared to be drunk.  He repeated himself frequently, slurred his words, and was swaying a bit.  He told her that he had been drinking beer that night and, from what he said, it appeared that he had spent about $40 on alcohol.  P said the two of them sat in her lounge room and had a smoke and a chat.  She said the appellant was sitting on a two seater lounge and she was in a single chair.  P said the appellant continued to ask her for sex and she continued to reply in the negative. 

6     Eventually she said that she was tired and wanted to go to bed because it was quite late.  The appellant asked her if he could use her toilet before he left.  The appellant then got up from his seat, grabbed her wrists in one hand and pulled her arms above her head.  While standing in front of her he tugged at her clothing.  He pushed her top up and pulled her tracksuit pants down to her ankles.  P said she complained the whole time and said that he was hurting her and she asked him to stop.  He held her hands above her head and he then exposed his penis which he thrust inside her mouth.  P said she was confused and scared.  She eventually bit down slightly on his penis.  He removed it from her mouth and said “That’s enough”.  He then got down and forced his penis inside her vagina.  She said that she screamed and he slapped her across the right side of her face.  After the appellant ejaculated he gathered up his clothes, wallet and keys.  He said to P that if his girlfriend found out she would kill her and if he found out she had told anyone he would kill her.  The appellant then left.  On the evidence of P that was at about 5.30 am. 

7     P said that after the appellant left she sat and stared at the walls and smoked a lot.  At about 11.30 am she went and had a shower, after which she went to the Westlands shopping mall.  She was away for about half an hour.  When she returned home she lay on her bed for a while and tried to watch a video, after which she slept until about 7.30 pm.  In the course of the afternoon her mother rang her but she did not tell her mother what had happened because she “didn’t want to hurt her”.  At about 7.30 pm, she telephoned Julie and asked her to come over to her house.  Julie said she was leaving for Adelaide the next day, and was watching a video with her family and was too busy to come over.

8     P then rang Karen Gill.  She was unable to make out much of what P was saying because she was crying.  She went to P’s house and P then told her that she had been raped by Julie’s gardener.  Karen thought that Julie had better come around and she contacted her.  Julie then came to the house and P “told Julie what happened”.  Karen left about ten minutes later.  Julie left the house at about 11.30 pm. 

9     At about “twoish” the following morning, P received a phone call.  She identified the voice as that of the appellant.  She said he asked if he could come over and she said “No, of course not” and he then said “You deserved everything you got you stupid little slut”.  He said “Remember if you tell anyone you are dead”.  She then hung up the phone.  At about 7.30 am, P received another phone call which she said was from the appellant.  She could not remember the words but they were of a sexual nature.  She hung up straight away.  She was able to fix the time of each of these calls by reference to some other calls she made to Lifeline.  During the day P spoke to a counsellor and on the Monday evening spoke to a police officer.  After the police became involved she was taken to see Dr Cowie who examined her. 

10   The appellant gave evidence at the trial.  He did not dispute that he had sexual intercourse with P but maintained that the acts were consensual.  He confirmed that he had been introduced to P at the Sundowner by her friend Julie and that he had discussed having a sexual relationship with her.  He said that as P was leaving the hotel she suggested to him that he ring her the next day to arrange a time to have some sex.  She told him to get her phone number from Julie.  The appellant said that he left the hotel at about 4.15 am.  He said that during the evening he had drunk three schooners of beer and two and a half cans.  He did not suggest he was drunk.  He took Julie home.  On the way she gave him P’s phone number.  He drove past P’s house and saw there was a light on.  He knocked on the door and P invited him in.  The appellant said that P sat down alongside of him on the two seater couch.  She turned the TV on.  It had a popular music program showing.  They starting kissing and cuddling and engaged in mutual petting.  After a while P moved her hand down to his crotch area and after some time masturbated his penis.  She then knelt down between his legs and commenced the act of fellatio.  He said that lasted for about five or so minutes.  She then removed her track pants, sat down on the couch and they proceeded to have consensual vaginal intercourse.  He said there were no protests from P nor any indication from her that she did not consent.  After he had ejaculated he got dressed.  He resumed sitting on the couch.  They had a cigarette and talked and at about 6.10 am he left the house.  As he was leaving, P suggested that she could ring him at any time.  He said that he drove home and went to bed. 

11   The next day he pottered around the house.  At about 8.30 to 9 pm that Sunday night he went to the house of a friend called Greg Fielden.  Fielden had just bought a new computer game.  Fielden was working but he completed his shift at about 11.30 pm.  The appellant picked him up from work.  They went back to Fielden’s house and continued playing the computer game until about 2.30 am.  At about 2.35 am the appellant returned home.  The appellant denied making any phone calls to P.

12   Fielden gave evidence for the prosecution.  He said that he and the appellant had been through the police academy together.  He had spent some part of Saturday 12 April 1997 with the appellant, initially at the Spencer Hotel and subsequently the Sundowner.  He described the appellant as being slightly affected by alcohol.  He confirmed that the appellant came to his house early in the evening of Sunday, 13 April 1997.  He thought at about 9 pm.  Fielden was working but called in at the house from time to time.  He said he finished work at about 11.30 pm after which he went back home and the two of them played the computer until 2.30 am or 3.  He said that the appellant had not made any phone call from the house.

13   The notice of appeal sets out ten grounds of appeal.  On the hearing of the appeal, however, Mrs Shaw QC, for the appellant, indicated that she did not intend to pursue grounds 5 and 7. 

GROUND 1: Intoxication

14   The first ground of appeal complains of the adequacy of the direction of the trial judge on the topic of intoxication.  The issue of intoxication arose on the evidence of P that the appellant appeared to be drunk when he arrived at her house.  It was not put forward by the appellant as a defence to the charge, and the appellant’s counsel did not ask for a direction with respect to it.  The learned trial judge made some reference to the issue of intoxication but told the jury that this was not a case in which the presence of alcohol had been put forward as a defence or excuse.  He went on to say:

“Intoxication is not of itself an excuse.  As a general principle, an accused has to answer when sober for what he has done in a state of insobriety, and again, of course, here because we are dealing with Mr Simpson. 

In certain circumstances, intoxication may be so great as to take away a person’s ability to control their will and the intention associated with bodily acts.  That is not the present case.

However, intoxication may affect a case such as the present in other ways.  Alcohol may affect inhibitions, may confuse the thinking process and may release inclinations and passions normally kept under control when sober.  Alcohol may blur perception of events and judgement and also affect a person’s reaction to events.  It may affect a person’s reliability as a witness.”

15   The judge then referred to the evidence of Mr Fielden and P which related to their observations of the appellant and P’s evidence as to the discussion with the appellant as to the money he had spent on alcohol that night.  The judge went on to say:

“No-one, however, suggests that intoxication could explain the differences between the two versions of what happened at (the complainant’s) house.  Nevertheless, in your deliberations, you will bear in mind what I have said about the effects of alcohol, which are no doubt well-known to you and apply these comments as you think fit to the accused when you are assessing his actions and his evidence.”

16   Earlier in the summing up, the judge dealt with the elements of the crime of rape.  He explained to the jury that “a man is not guilty of rape unless he knows that (she) is not consenting or he is recklessly indifferent as to whether or not she is consenting”.  He did not, however, explain to the jury that the evidence of intoxication was relevant to proof of the mental element of the offence.  As I have said, counsel for the defence did not ask the judge to direct as to that matter as the appellant denied that he had been affected by alcohol and relied on the defence of consent.  Nevertheless, once the issue of intoxication arose as it did on the evidence of P, the judge was obliged, regardless of the attitude of the defence, to direct the jury as to its relevance when considering the evidence as to the proof by the Crown of the accused’s state of mind. 

17   As Duggan J said in Bedi v The Queen[1] (at 273):

“If there is evidence of intoxication capable of having some bearing on these issues it is the duty of the trial judge to identify that evidence for the jury and relate it to those issues with appropriate directions on the law.  It may well be that for one reason or another the defence does not wish to rely on evidence of intoxication, but that does not relieve the trial judge of giving the jury appropriate directions:  R v Perks[2].”

[1] (1993) 61 SASR 269

[2] (1986) 41 SASR 335

18   And further -

“In determining these aspects of the appellant’s state of mind it was essential for the jury to consider the bearing which the effects of alcohol and drugs may have had on the appellant’s appreciation of relevant facts and whether or not he formed the necessary intent inherent in the charge:  R v O’Connor[3]; R v Tucker[4].”

[3] (1980) 146 CLR 64 at 82

[4] (1984) 36 SASR 135 at 139

19   In R v Ball, Bunce and Callis[5] intoxication was not relied on by the defence and no redirections were sought.  On appeal, the court held that there was still an obligation to give proper directions about intoxication.  Matheson J said (at 139):

“The law, however, is clear that the trial judge has to put to the jury any defence that fairly arises on the evidence.  See R v Murphy[6] where Cox J reviews the admission of Australian authorities.”

[5] (1991) 56 SASR 126

[6] (1998) 52 SASR 186 at 195 to 197

20   In the present case, the possibility of the appellant being so intoxicated as to be incapable of forming the requisite intention to be guilty of the crime was clearly raised on the evidence of P.  It was therefore incumbent upon the judge to give an appropriate direction to the jury as to the relevance of intoxication as to the mental element of the offence.  The judge’s failure to give such a direction was compounded by the fact that on two separate occasions he told the jury that the only issue was whether or not P consented, rather than explaining to them the importance of being satisfied, regardless of what the appellant said in his evidence, of the obligation of the prosecution to prove a guilty state of mind.  In my opinion, the appellant should succeed on this ground of appeal.

GROUNDS 2, 3 and 4: Evidence of complaint and distress

21   Grounds 2, 3 and 4 are concerned with the admission of the evidence of complaint and distress and the adequacy of the learned trial judge’s directions on those topics.  In the notice of appeal, the appellant complained that the judge had erred in admitting evidence of statements by P to Karen Gill and Julie Phillips as evidence of recent complaint, as well as the evidence of her distress at the time of making those complaints, or in the alternative, the judge’s failure adequately to direct the jury as to the use they could make of the evidence as to each of those matters.

22   On the hearing of the appeal, Mrs Shaw QC for the appellant, argued that the complaints to Julie and Karen could not be regarded as recent complaints in the light of P’s failure to complain to her mother earlier in the day and even assuming that evidence was admissible to buttress the credit of P, there should have been a direction as to the significance of the lack of complaint to her mother to whom she had spoken in the course of the afternoon.

23   In determining whether a complaint has been made at the first reasonable opportunity, regard must be had to all surrounding circumstances.  In Jonkers v Police[7], evidence was admitted of a complaint made a day after the assault.  Matheson J reviewed the authorities and (inter alia) referred (at 406) to the decision of the Court of Appeal in England in Valentine v The Queen[8].  In that case, the complainant was on her way home from a restaurant.  She arrived home at 2.30 am.  Her parents and her brother were home but asleep.  The following morning she told her brother she had been attacked with a knife but said she did not want to tell her parents.  She went to work that afternoon and in the evening told a friend she had been raped.  The evidence of that complaint was held to be admissible.  Their Lordships said (at 223):

“The authorities establish that a complaint can be recent and admissible, although it may not have been made at the first opportunity which presented itself.  What is the first reasonable opportunity will depend on the circumstances including the character of the complainant and the person to whom she complained and the persons to whom she might have complained but did not do so.  It is enough if it is the first reasonable opportunity.  Further, a complaint will not be inadmissible merely because there has been an earlier complaint, provided that the complaint can fairly be said to have been made as speedily as could reasonably be expected.  This is not to say that it is permissible to allow the Crown to lead evidence that the same complaint has been made by the complainant in substantially the same terms on several occasions soon after the alleged offence, where that would be prejudicial in that it might incline the jury to regard the contents of individual complaints as evidence of the truth of what they assert.  The complaint has to be made within a reasonable time of the alleged offence and on the first occasion that reasonably offers itself for the complainant concerned to make the complaint that was made in the terms in which it was made.

We now have greater understanding that those who are the victims of sexual offences, be they male or female, often need time before they can bring themselves to tell what has been done to them; that some victims will find it impossible to complain to anyone other than a parent or member of their family whereas others may fell it quite impossible to tell their parents or members of their family.”

[7] (1996) 67 SASR 401

[8] (1996) 2 Cr App R 213

24   Those comments are of equal application to the present case.  P was an 18 year old girl living away from home.  She described her reaction to the events of that night.  It is understandable that she would not want to tell her mother what had happened on the telephone but decide instead to speak to a friend in person.  I consider that in those circumstances the complaint to Karen was properly admitted as evidence of recent complaint.  Although it is not appropriate to admit evidence of successive complaints to bolster the credit of a witness, in this case the evidence of Karen as to her contact with Julie, and Julie’s subsequent attendance at P’s house, was an integral part of the circumstances in which the complaint was made and it would have been artificial to segregate those events.  I therefore consider Julie’s evidence was properly admitted.  Similarly I consider the evidence of P’s distress at the time of speaking to Karen, and later Julie, was also admissible as it was sufficiently connected with these events to demonstrate consistency on the part of P.

25   Mrs Shaw complained, however, that the learned trial judge had failed adequately to put the defence case to the jury.  In particular, there should have been a direction to the jury as to the significance of the lack of complaint by P to her mother which could have been used by the jury to detract from P’s credibility.

26   Defence counsel, in his address, reminded the jury of P’s failure to complain to her mother.  The learned trial judge correctly directed the jury as to the limited purpose for which they could use the evidence of recent complaint.  In the course of that direction he referred to P’s conversation with her mother prior to ringing Julie and Karen.  It would have been helpful if the judge had directed the jury that it was open to the jury to use the evidence of P’s failure to complain to her mother to detract from her credit.  He did, however, warn the jury of the need to scrutinize the evidence of P carefully.  I consider the direction on the issue of complaint was adequate to the circumstances of the case.  These grounds of appeal fail.

GROUND 6: The evidence of Dr Cowie

27   P was examined by Dr Cowie at about 11 pm on Monday 14 April 1997.  Dr Cowie gave evidence at the trial.  In evidence in chief he said that P had complained of tenderness and soreness on the right side of her face and in her wrists.  She had given him a history in which she stated that she had been hit on the face.  Dr Cowie said there was no bruising visible but she was tender in that area.  He confirmed that it was a subjective complaint on her part.  During his cross-examination, however, the following exchange occurred:

“Q..... First of all, let’s deal with the cheek, that is wholly reliant - just to interpret subjective and objective - it is in that report and that is wholly reliant on what you were told by (P).

AThat’s right, but in a person who appears under a degree of stress, I had, although it is subjective, in other words it is reliant on her report, I was personally fairly - I was convinced she was tender in that area.”  (emphasis added)

28   The appellant complains that this evidence was prejudicial to the defence because the effect of it was to suggest that Dr Cowie believed that P was telling the truth about tenderness in that area.  It followed therefrom that P was telling the truth (as far as he was concerned) about being slapped in the face.  That being the case, it was confirmatory of the slap itself and by implication the version of events as given by P.  The evidence tended to buttress the credibility of P and rebutted the denial of the appellant that that any such slap had occurred.  This was especially significant because it was an opinion as to the veracity of P emanating from an expert witness whom the jury would view as being independent.

29   Obviously it would have been better if Dr Cowie had not volunteered his opinion.  He had, however, agreed that a complaint of tenderness was subjective and, if the matter had been left alone, this may not have been a problem.  The prosecutor, however, in his closing address commended Dr Cowie’s evidence to the jury in the following way:

“Because we know she did try and scream out, and for her trouble she got slapped.  She told you that she complained of tenderness to the right side of the face and Dr Cowie was in no doubt, I suggest, that her complaint of pain and of tenderness there was genuine.  Dr Cowie quite reasonably and rightly said that when someone complains of pain and tenderness it is a subjective issue, that you rely upon what the person tells you, and doctors are not there to cross-examine people, but from his point of view he was quite convinced, in his words, that her complaint of tenderness to the cheek was genuine.  He also told you she complained of tenderness to the wrists.  There were no signs of bruising there.  He said nothing turned on that because you would not necessarily expect to see bruises especially when her hands were raised and it is not a particularly fleshy part of the body.  So Dr Cowie’s evidence in my submission strongly supports (P).  The absence of any bruising does nothing to undermine her evidence and the fact he was convinced her complaints of tenderness to the face were genuine strongly supports her version of events, I suggest to you.  That is what happened when she complained.  She got a slap for her troubles.” (emphasis added)

30   Counsel for the defence in his address, suggested to the jury that they should ignore Dr Cowie’s opinions of P and reminded them that there was no objective, clinical sign in respect of P’s cheek or wrists.  The learned trial judge, however, in summarising the Crown case, said:

“The evidence of Dr Cowie upon his examination confirms the evidence of (P), but of course it is acknowledged that you must make allowance for the subjective elements of Dr Cowie’s examination where soreness is dependent on (P’s) say so.  But nevertheless, she did indicate soreness in her wrists and in the right side of her face.” (emphasis added)

31   In view of the way the evidence unfolded and in order to negate the potential prejudice to the appellant, the jury should have been told that the evidence of Dr Cowie did not assist either the prosecution or the defence case in so far as it related to the jury’s assessment of the credibility of the two principal witnesses in this case.

32   The manner in which the learned trial judge directed the jury, however, tended to support the submission of the prosecution that it “confirmed” the evidence of P and was therefore prejudicial to the defence.  The evidence was, however, inadmissible and could never be used to confirm the evidence of P.  The verdict in this case very much depended upon the jury’s assessment of the credibility of P and the appellant.  The manner in which this evidence was left to the jury created a real possibility that the evidence would be used by the jury in an impermissible manner as a route to conviction.  I would allow this ground of appeal.

GROUND 8 : Telephone Calls

33   The judge referred to the evidence of P concerning the threatening phone calls.  He directed them to exercise caution before deciding to accept the evidence of P on that topic.  He gave a detailed direction as to the dangers lurking in voice identification.  He did not, however, give the jury a specific direction as to the use they could make of that evidence if it was accepted by them.  If the jury were satisfied beyond reasonable doubt that the appellant had threatened P in those calls, it would have been open to them to use that evidence as demonstrating a consciousness of guilt of the charges against him.  To use the evidence in that way, however, the jury should have been told that they had to be satisfied beyond reasonable doubt not only that the appellant had made those phone calls but there was no rational explanation for them other than guilt.  The jury should also have been warned of the danger of reasoning by way of propensity to a finding of guilt.  In my opinion, the failure of the judge to direct as to those matters created the danger of the jury using this evidence in an impermissible way. 

34   I would allow this ground of appeal.

GROUND 9: Failure to put the defence case

35   The appellant complained of the failure of the trial judge adequately to put the defence case to the jury.  The judge in his summing up summarised a number of points made by the counsel for the appellant in the course of his address but did not remind the jury as to the evidence given by the appellant on oath as to the circumstances leading up to the meeting at the hotel, the appellant’s version of what had occurred in the flat, nor the fact that the appellant’s denial of having made the phone calls was supported by the evidence of the prosecution witness, Fielden.  In essence, all the judge did was summarise the arguments that were put by the defence which were critical of P rather than summarising the evidence of the appellant as to what he said was the true situation.

36   I think that there is substance in this criticism.  It would have been better if the learned trial judge had made it clear that the defence case was that the intercourse was consensual, although it is not necessary to read passages of evidence given by the accused.

GROUND 10: Unsafe and Unsatisfactory

37   There were a number of issues raised by the appellant under this heading which included some of the issues already ventilated, as well as the delay by P in prosecuting the charge against the appellant and the circumstances in which she decided to proceed. 

38   I do not think it necessary finally to rule on grounds 9 and 10, as a re-trial should, in my opinion, be ordered in any event, and no useful purpose would be gained by further discussing those two grounds.

39   The appellant has succeeded on Grounds 1, 6 and 8.  The issues raised in those grounds of appeal are, in my opinion, of such significance that there is a danger of a miscarriage of justice.  I consider the appeal should be allowed and the conviction quashed. 

40   I would order a re-trial.

Millhouse J

41   I agree.

Perry J

42   I agree.