R v Sluczanowski
[2008] SASC 185
•9 July 2008
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v SLUCZANOWSKI
[2008] SASC 185
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Duggan and The Honourable Justice Anderson)
9 July 2008
CRIMINAL LAW - EVIDENCE - COMPLAINTS - FIRST REASONABLE OPPORTUNITY
CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - CORROBORATION - WHAT CONSTITUTES CORROBORATION - CIRCUMSTANTIAL EVIDENCE - CONDITION OF COMPLAINANT IN SEXUAL CASES
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - GENERAL PRINCIPLES
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS - OTHER MATTERS
Appellant convicted of two counts of rape - prosecution led evidence of complaint and distress approximately 24 hours after incident - whether complaint made at first reasonable opportunity - whether evidence of complaint and distress capable of demonstrating consistency - in summing up trial judge suggested procedure by which jury might deliberate - whether judge erred in doing so - defence in closing alleged complainant had particular motive to lie - alleged motive not put to complainant in cross-examination - judge commented on failure to cross-examine and directed jury not to speculate on a possible motive to lie - whether improper application of Browne v Dunn - whether directions suggested to the jury they were not to consider any possible motive the complainant may have had to lie.
Held: Evidence of complaint and distress capable of demonstrating consistency and properly admitted - judge's remarks on procedure for deliberation not erroneous - directions on motive to lie gave rise to a real risk of a miscarriage of justice by giving the jury the impression they were not to consider the question of the complainant's motive at all - appeal allowed, convictions set aside and new trial ordered.
Browne v Dunn (1893) 6 R 67; R v Uhrig (unreported, Court of Criminal Appeal New South Wales, 24 October 1996); R v Noonan [1998] VSCA 8; R v Smith [2000] NSWCCA 468; Palmer v R (1998) 193 CLR 1; Harman v The State of Western Australia (2004) 29 WAR 380; R v Costin [1998] 3 VR 659; R v Costi (1987) 48 SASR 269; R v Rajakaruna (No 2) (2006) 15 VR 592, considered.
R v SLUCZANOWSKI
[2008] SASC 185Court of Criminal Appeal: Doyle CJ, Duggan and Anderson JJ
DOYLE CJ: I agree with the orders proposed by Duggan J, and with his reasons.
DUGGAN J: The appellant was tried in the District Court on an information charging him with three counts of rape. It was alleged that the offences were committed as part of the one incident which took place on 8 April 2006 at a party attended by the appellant and the complainant.
The jury convicted the appellant on the first two counts, but were unable to reach a verdict in relation to the third count.
The appellant was 19 years of age at the time of the alleged offences. The complainant was 21. On the evening of Friday 7 April 2006 they were guests at a 21st birthday party at Aldgate. They had not met each other prior to the party.
Evidence was led at the trial that, during the party, the complainant became intoxicated. She said in evidence that, at one stage during the evening, she had a conversation with the appellant while she was sitting outside near a fire. She said that later she started to dance and felt dizzy. She said she blacked out as she was walking down the hallway in the house.
The complainant said her next memory was lying on her back on a mattress in the lounge room. The hem of her skirt was over her face and her stockings and underwear had been removed. Someone was placing a finger in her vagina. This incident was the subject of the first count of rape. She said she tried to kick her legs but had difficulty in doing so. At this stage she realised that the appellant was on the mattress with her.
The complainant gave evidence that the appellant then got on top of her and placed his penis into her vagina. This allegation was the subject of the second count in the information.
The complainant said she tried to push the appellant off. The appellant removed his penis but, according to complainant, he was able to reinsert it in her vagina. This was the basis of the third count of rape.
After this incident and while they were still on the mattress the complainant said that the appellant took her hand and placed it on his erect penis.
According to the complainant she did not consent to any sexual activity with the appellant.
The appellant gave evidence. He said he spoke to the complainant when they were outside near the fire. Some of the guests slept the night at the house and he was told that he could sleep on a foldout lounge in the lounge room. He said he saw the complainant being helped into the lounge room and then get down onto the mattress which was next to the foldout lounge.
The appellant said that when the lights were turned off he called in a soft voice to the complainant who looked up at him and smiled. According to the appellant, they started kissing. He said they fondled each other and the complainant took off her underwear and stockings. The appellant removed his underpants. He said the complainant lay on top of him and there was contact between their genitals, but she moved away and there was no penetration. The appellant said they then lay on the mattress and the complainant masturbated him until he ejaculated.
It is convenient to deal first with a ground of appeal which asserts that the trial judge erred in leaving to the jury for their consideration evidence of an alleged complaint and the distress of the complainant.
The incident occurred in the early hours of 8 April 2006. The complainant said she went to sleep on the mattress after the incident and, when she awoke, the appellant was lying there asleep. She said she went to the bathroom and then to the kitchen where she rang her mother. She asked her mother to pick her up. Her mother arrived about 15 minutes later and drove her home. She said she did not tell her mother about the incident because she did not want anyone to know.
The complainant said she spent the day in bed as she was unwell. She started to feel better at about 7pm and telephoned the young woman whose birthday had been celebrated the night before. The complainant said she was thinking about telling her about the incident, but when speaking to her she decided it was not the right time to mention the matter.
After trying unsuccessfully to contact some other friends, the complainant said she sent a text message to a young male friend, SA. She stated in the message that something had happened which made her upset and she wanted to speak to him.
Later, she spoke to this person over the telephone while he was at work. By then it was about midnight. He picked her up at her home at about 3am and drove her to his home. It was then that she told him that she had been raped.
The trial judge gave the following directions on the complaint and evidence that the complainant was distressed at about the time she made the complaint:
What [the complainant] is said to have said to [SA] came before you because it is considered that the making of a prompt complaint, if you consider it to be a prompt complaint – and in that you will consider [the complainant’s] evidence as to how it came that she first told somebody about what she said happened – is relevant in assessing the truth of the alleged victim’s evidence in court, including the fact that she was asleep, that the accused put his fingers and penis into her vagina, and that she did not consent. It may indicate to you that [the complainant’s] behaviour at the time of making the complaint was consistent with the occurrence of the events on which she has given evidence in court. It may also tend to negative any notion that the allegation is a later invention. It may also assist you in assessing [the complainant’s] evidence by considering the consistency or inconsistency, and that is your determination, and therefore the credibility or otherwise of what she said then with what she said in evidence before you.
It is for you to consider whether you accept the evidence of the complaint and, if so, what weight you attach to it in relation to the issues that I have mentioned. In deciding what weight to attribute to the complaint made in this case, if you find it to be a prompt complaint, as to the credibility and reliability of it, you should bear in mind the circumstances leading to it and the context in which it was made.
There are reasons that may prompt people to make false complaints. You should exclude other explanations as to why [the complainant] said what she said to [SA], and you should exclude those other explanations beyond reasonable doubt, before you rely on the evidence of [the complainant’s] complaint to [SA] as evidence which lends weight to [the complainant’s] credibility and reliability in the evidence she gave here.
Another aspect of the evidence of [SA] is that he described [the complainant], at various times when she left a voicemail message for him, during a later phone call and in his car, as being extremely upset, crying, very emotional and not completely rational.
You are entitled to use the evidence of [the complainant’s] distress, if you accept this evidence and that it is evidence of distress, as evidence potentially [showing] a consistency between her actions after the events in the lounge room and the evidence she has given in court.
There could, however, be a number of explanations for evidence of distress in an alleged victim, apart from it being consistent with the evidence that [the complainant] gave here that she had been raped by the accused in the circumstances described by her. Before you can use the evidence of her distressed state, if you are satisfied of the evidence about it, as supporting [the complainant’s] credibility and reliability, you must exclude all other possible explanations for it beyond reasonable doubt.
There was no objection by the defence to the evidence of complaint or distress. However, counsel for the appellant submitted on the hearing of the appeal that, despite the fact that no objection was taken to the evidence of complaint, it should not have been left to the jury as being capable of demonstrating consistency and, as such, relevant to the assessment of the credibility of the complainant. According to the argument, the complaint was not made at the first reasonable opportunity after the incident.
Although the trial judge did not make any ruling on the admissibility of the complaint, the ground of appeal requires this court to consider whether the evidence was capable of being regarded by the jury as satisfying the requirements of being made spontaneously and at the first reasonable opportunity.
It is not always a simple task to determine whether a complaint was made at the first reasonable opportunity. I regard the present case as being close to the line. However, the complainant explained why she did not make a complaint to her parents and the ongoing effects of her intoxication may well have led her to remain in bed for most of the Saturday. In my view, the evidence was admissible as a complaint and, as I have said, no objection is taken to the form of the summing up in relation to it.
Evidence of the distress of the complainant was given by the person to whom the complaint was made. He said that the complainant was upset and crying when she left a message on his telephone for him to ring her. He said he could tell that she was extremely upset. She was also upset when she told him about the incident after he picked her up.
In my view, the time which had elapsed since the alleged incident rendered this evidence of limited weight for the purpose of establishing consistency on the part of the complainant. Nevertheless, I think it had some probative weight. Furthermore, the trial judge explained to the jury that there could be a number of other explanations for the evident distress and that those alternative explanations would have to be excluded beyond reasonable doubt before the evidence could be used to establish consistency.
In my view this ground of appeal has not been made out.
The next ground of appeal asserts that the trial judge erred in suggesting to the jury the manner in which they should go about their deliberations.
The relevant passage in the summing up is as follows:
It is not for me, ladies and gentlemen, to direct you as to how you might go about your deliberations in the jury room when you retire in a moment. What I now say to you about how you might do that is a suggestion only. It will be for you to work out what best suits you as a whole.
There are at least two ways you might approach your task. I describe the two different approaches as one which is poll or vote driven, and the other which is evidence and issues driven.
I understand from some material I have seen or heard that when some juries retire they immediately take a vote. Then they have discussions about the various witnesses, the evidence that they have heard, the issues that arise from the evidence and the judge’s summing up. Then another vote is taken, and so on. That is what I describe as a poll or vote-driven approach to a jury’s deliberations.
The evidence and issues-driven approach is one where a vote is not taken immediately, or even for some time into the jury’s deliberations. Rather, the jury discusses amongst its members the various witnesses, and in this case it is likely that one focus will be on the complainant and the accused. The jury will then consider and discuss the judge’s directions as to the elements of the offences and the other matters that the judge will have given them directions about. Hopefully, when that happens all jurors will express their views on all these matters and all will listen to the views expressed by other jurors in respect of each of them. That will all be done before any poll or vote is taken.
As I said at the beginning of these remarks on this matter, it is a matter for you to determine what best suits you as to your method of deliberating, but some experience shows, human nature being what it is, that if discussions are poll driven and a vote is immediately taken, some jurors may feel some obligation in a variety of ways to stick with that decision, notwithstanding that, having heard discussions and comments by other jurors, other points of views are expressed which might lead them to think that perhaps they had been too hasty in reaching a decision, without giving consideration to the views of others.
I have never been on a jury, ladies and gentlemen, so I do not know, but there is some evidence and experience that indicates that deliberations of a jury such as you which is evidence and issues driven before a vote is taken, can be the better way for a jury to proceed.
But as I said, that is only a suggestion. It is not a direction to you. It is for you to decide how you will consider your verdicts.
The complaint about these directions was not pressed with any vigour on the hearing of the appeal. In my view, it would have been better to leave the jurors to their own devices in relation to the procedure suggested in the above passage. However, the trial judge stressed that they were free to follow whichever procedure they chose and the course proposed by him, if followed by the jury, would not have been inappropriate. In my view there is no substance in this ground of appeal.
The main focus of the appeal related to directions the trial judge gave regarding defence counsel’s submissions on the complainant’s possible motive for making up false allegations against the appellant. It is relevant to have regard to the circumstances which appear to have prompted the trial judge to give the impugned directions to the jury.
When addressing the jury, counsel for the appellant at the trial raised the question whether the complainant had a motive for lying about her encounter with the appellant. He referred to the fact that persons who are intoxicated are prone to do things when intoxicated which they later regret. He reminded the jury that the complainant had agreed she was concerned that she might have become pregnant as a result of the incident. He said:
In the cold hard light of day did [the complainant] think that she was pregnant? Did she think that people would think ill of her for what had happened and occurred? Did she think ‘What have I done? How am I going to explain all of this away? What should I do? I won’t speak to mum or dad, I won’t speak to my girlfriends, I won’t speak to H K, I will speak to a boy’, a man – boyfriend, man-friend or friend early the next morning, after some 24 hours. I will come back to what she says she said and what he said she said.
In the cold light of day, she even said in her evidence that she thought she might be pregnant and she was concerned about it. Unfortunately, what occurs is once you tell someone what had happened and embellished it you are caught in basically that vortex. Once you have told the first lie you can’t go back because what happens is events take place, people get told. You get examined by doctors, you see police, charges are laid, people are in court, the trial has happened. Once the treadmill starts it is nearly impossible to get off.
Late in his address defence counsel reminded the jury of the importance of assessing witnesses and considering:
…who’s telling the truth, who’s telling lies, who may have a reason for lying.
At the conclusion of the defence address the prosecutor complained to the trial judge that defence counsel had suggested in his address that the complainant had specific reasons for lying which were not put to the complainant in cross-examination.
It is apparent that the trial judge’s directions to the jury on motive were in response to this concern expressed by the prosecutor. The trial judge told the jury that he intended to comment on three aspects of defence counsel’s address. After referring to two other matters he said:
The third matter is reference by Mr Caldicott to any motive [the complainant] might have had for making up false allegations against the accused. It was never put to [the complainant] that she had a motive of any type to make up any of these allegations of rape. So you must consider that when assessing Mr Caldicott’s submission to you. But I tell you, ladies and gentlemen, that your deliberations will not be assisted by you speculating as to whether [the complainant] had any motive to make false allegations of rape against the accused.
Counsel for the appellant argued that this direction was inadequate in a number of respects.
First, it was said that the directions constituted an application of the rule in Browne v Dunn[1] which was not justified in the circumstances of the case. According to the appellant’s argument, the issue of motive on the part of the complainant, to fabricate her allegations, was raised with her during her evidence.
[1] (1893) 6 R 67
It was pointed out that in examination-in-chief the complainant was asked why she did not complain to her parents or other members of her family. She agreed that they were all home with her during the day. She was asked by the prosecutor why she did not tell her family about the incident with the appellant and she said she did not want to upset anyone, especially members of her family. She said she felt very uncomfortable speaking to them about it. She was also asked by the prosecutor if she could sleep when she returned home. She said that she thought she might have been pregnant. In cross-examination she agreed that she was very concerned about being pregnant.
It was not put directly to the complainant that she had lied about the incident with the appellant because of regret which she felt afterwards coupled with concern she might have for what others would think of her if she had been willing to engage in sexual conduct with the appellant. Defence counsel’s comments in his closing address, about motive for not telling the truth, were based on the evidence which I have summarised.
In my view, it was appropriate in the circumstances for the trial judge to comment on the fact that the complainant had not been confronted in cross-examination with the suggestions made in defence counsel’s address to the effect that the complainant had a motive to lie. However, the major complaint of the appellant is that the direction given by the trial judge was misleading and did not adequately canvass all of the considerations relevant to the jury’s assessment of motive.
Before dealing further with the directions on motive it is convenient to make some general observations.
When a witness makes allegations against an accused person which are denied, it is relevant when assessing the credibility of the witness to consider the possibility of a motive to fabricate the allegations. As Hunt CJ at CL said in R v Uhrig[2]:
A motive to lie where it does exist is a very relevant factor in judging a witness’s credit. It would almost inevitably have substantial probative value in relation to the issue of credit…
[2] Unreported, Court of Criminal Appeal New South Wales, 24 October 1996
In R v Noonan[3] Charles JA said:
Evidence is certainly admissible to establish that a complainant has a motive to make false allegations; Wills on Circumstantial Evidence (6th ed, 1912) at 256-257; Palmer at 257-258; R. v. Umanski [1962] V.R. 242, at 244; R. v. Uhrig, unreported, Court of Criminal Appeal of New South Wales, 24 October 1996 at 16-17; R. v. Harrington, unreported, Court of Appeal, 30 October 1997, at 12-13. A motive to lie is, as Hunt, C.J. at C.L. said in Uhrig, where it does exist, a very relevant factor in judging a witness's credit. Here CV, when first complaining to the police 14 months after the alleged event, immediately enquired about crimes compensation, suggesting a possible motive to lie. The matter was mentioned in the learned judge's charge to the jury but not, I think, in such a way as adequately to attract the jury's attention to the possible impact on the complainant's credibility in all the circumstances.
[3] [1998] VSCA 8 at [12]
This situation must be distinguished from speculation as to why a complainant would make up allegations against the accused. In R v Smith[4] Wood CJ at CL referred to “the prohibited question” –
Why, unless it were true, would a complainant make up allegations against another?
He went on to comment on the fact that the law does not permit adverse inferences against an accused person resulting from a consideration of that question, and he added[5]:
The only exception allowed has been where a motive to lie has been asserted, on the part of the complainant, or by some other witness essential to the prosecution case, or where such a motive could reasonably be inferred from the evidence. In such a circumstance, justice requires that it be dealt with, and that the jury give consideration to the question whether there was a reason for the complainant to lie.
[4] [2000] NSWCCA 468 at [98]
[5] Ibid at [100]
Impermissible reasoning in relation to motive can arise in another way. If a trial judge addresses the issue of motive in the summing up it is usually necessary to warn the jury that if the jury rejects the motive to lie which is relied upon by the defence, that does not mean that the prosecution case is strengthened. In the joint judgment of Brennan CJ, Gaudron and Gummow JJ in Palmer v R[6] their honours said:
…a complainant's account gains no legitimate credibility from the absence of evidence of motive. If credibility which the jury would otherwise attribute to the complainant's account is strengthened by an accused's inability to furnish evidence of a motive for a complainant to lie, the standard of proof is to that extent diminished. That is the converse of the proposition stated by Cresswell J in the case cited by Wills where his Lordship acknowledged that proof of a motive to lie weakened a complainant's credibility. The correct view is that absence of proof of motive is entirely neutral.
[6] (1998) 193 CLR 1 at [9] (footnotes omitted); see also R v Uhrig at [16] – [17]; and Harman v The State of Western Australia (2004) 29 WAR 380 at [17]
In R v Costin[7] Charles JA provided a useful summary of the directions on motive which he considered should have been given in that case:
In my view, in the circumstances of this case, it was necessary that the jury be warned that there are many reasons why people may lie; that it was not for the accused to provide a motive for the complainant to lie; that they must not speculate that because there was no apparent motive for the complainant to lie, there was in fact no reason, and hence she must be telling the truth; that in a case where the only relevant evidence was given by the complainant and the accused the question was not whose evidence is to be preferred; and that the critical issue was that the Crown at all times bears the onus of proof beyond reasonable doubt and must satisfy them that the complainant was telling the truth.
[7] [1998] 3 VR 659 at 668
I return to the directions in the present case.
As I have said, the issue of motive having been raised it was appropriate for the trial judge to make some comment on the failure to cross-examine on this topic. In R v Costi[8] King CJ referred to the entitlement of a trial judge to comment on a failure to comply with Browne v Dunn. He said:
The rule is no more than a rule of practice and the consequences of failure to comply with it must depend upon the circumstances. Failure to comply with it cannot compel a jury to any particular conclusion on an issue of fact. Questions of fact remain within the province of the jury irrespective of compliance with any rule of practice. Still less can a failure to comply with a rule of practice compel the jury to find an element of the crime proved. Failure to comply with a rule of practice does not relieve the prosecution of its onus to prove every ingredient of the charge. But failure to comply with the rule may have a marked effect upon the view which the court and jury take of the evidence and the facts. How marked that effect is, will, of course, depend upon the circumstances. A trial judge is entitled, if he sees fit to do so, to direct a jury in strong terms as to the effect which failure to comply with the rule should have upon their view of the facts and the evidence, but he is not entitled, by reason of non-compliance with the rule, to withdraw an issue of fact from the jury nor to treat an ingredient of the charge as proved.[9]
[8] (1987) 48 SASR 269 at 271
[9] R v Rajakaruna (No 2) (2006) 15 VR 592 provides an example of a case where the comment went as far as to withdraw the relevant issue of fact from the jury’s consideration.
If a direction of the type referred to by the Chief Justice is given, it is necessary to provide the jury with some assistance as to their approach to the assessment of the evidence. In the present case, after reminding the jury that it was not put to the complainant that she had a particular motive to fabricate the trial judge said:
So you must consider that when assessing Mr Caldicott’s submission to you.
The jurors were not told how they should take into account the failure to put the allegation to the witness.
The reference to taking the matter into account is well understood by lawyers. However, it is important to consider the way in which such an instruction would have been viewed by the jury. In my view, the jury should have been told that, despite the fact that the issue of motive was not raised with the witness, they should nevertheless consider the possibility of a motive to lie. In doing so however, they should bear in mind that the witness was not given the opportunity of refuting the assertion or commenting on it.
The trial judge’s direction cited above was followed by a further comment which might well have been taken as indicating that the question of the complainant’s motive was of little or no significance:
But I tell you, ladies and gentlemen, that your deliberations will not be assisted by you speculating as to whether [the complainant] had any motive to make false allegations of rape against the accused.
A direction not to speculate as to whether the complainant had a motive for making false allegations is appropriate if made in response to a prosecution submission along the lines of the rhetorical question “Why should the complainant lie?” However, it is inappropriate when put as a general proposition in a case where, as here, there was evidence which required the jury to consider whether the complainant had a particular reason for making false allegations.
Counsel for the respondent on the appeal argued that in the directions set out in [32] the jury were being told, “Be careful about speculating what her evidence might have been, if asked, on those topics”. I cannot agree with this construction. The jury’s attention was being directed to speculation as to the existence of a motive, not what the complainant might have said about it if the matter had been raised in cross-examination.
Furthermore, I do not think that, in the context of the directions, the jury would have understood the word “speculating” as referring to a situation where there was no evidence to support such a possibility. In my view, there is a real risk that the jury were given the impression that they were not to consider the question of motive at all. I feel confident that this was not the meaning intended by the trial judge, but the direction must be looked at objectively and from the viewpoint of the jury.
The jury should have been instructed instead that, despite the failure to cross-examine on the topic, there remained a requirement to consider the possibility of a motive to fabricate. They should have been reminded of the evidence relied upon by the defence for this purpose and I think they should also have been directed that the absence of such a motive was not relevant to their consideration.
The evidence and the submissions on the topic of motive raised it as an issue. It was an important matter for the jury to consider in a case of oath against oath. In my view, there is a real risk that a miscarriage of justice occurred by reason of the jury acquiring an imperfect understanding of the approach to be taken to the assessment of the evidence in this respect.
I would allow the appeal on this ground, set aside the convictions and order a new trial.
ANDERSON J: I agree with the orders proposed by Duggan J, and with his reasons.
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