R v Tofic MUCA No. SCCRM 96/216 Judgment No. 5815 Number of Pages 20 Criminal Law

[1996] SASC 5815

COURT IN THE COURT OF CRIMINAL APPEAL OF SOUTH AUSTRALIA MILLHOUSE(1) OLSSON(2) AND WILLIAMS(3) JJ

CWDS
Criminal law - particular offences - offences against the person - sexual offences - appeal from convictions for rape. Grounds of appeal made complaints about summing up and that verdicts unsafe and unsatisfactory. Held: summing up and redirection adequate - findings of jury reasonably open - appeal court reluctant to interfere. A M v The Queen 181 CLR 487, applied.

HRNG ADELAIDE, 23 August 1996 #DATE 26:9:1996

Counsel for appellant:     Mr D Peek

Solicitors for appellant:    Armour &; Co

Counsel for respondent:     Mr P Rofe QC

Solicitors for respondent: DPP (SA)

ORDER
Appeal allowed.

JUDGE1 MILLHOUSE J
1. The appellant has been convicted on two counts of rape, the first digital, the second vaginal: the intercourse took place on the front seat of a motor car in a car park or parking bay (I am not sure which) off Victoria Street in the north- west corner of the city. The issue at trial was consent. The appellant denied that he had forced himself on the young woman - that was her allegation and that it was done despite her repeated protests that she didn't want sex: he said that rather she was the sexual aggressor.

2. The complainant at the time was 18. She had been brought up in the Mid-North and had lived in Adelaide for about 12 months. One evening she and others, friends and acquaintances, went to the Golden Grove Tavern. She fecklessly, took no hand-bag, let alone money with her and her clothing was light for the coldness of the night. At the Tavern she met the appellant who was a bouncer there. He was then 28. When the place closed about three o'clock in the morning a group of them decided to keep going, to go into Rio's in Hindley Street. The complainant went alone into town with the appellant in his car. She told the jury that his unwelcome advances began on the way: she rebuffed them.

3. When they arrived and while the appellant was forcing himself on her, committing the offences as she complained, another car containing others of their party drove up next to them but she made no attempt to raise the alarm.

4. After the intercourse, forced on her evidence, consensual on his, was over, the two walked, apparently some distance apart, up to Rio's. She had been there often before and knew the bouncers. This night they would not let her in: she did not have her ID with her. She became angry. She stood outside for a half an hour or so until a male friend who had earlier undertaken to drive her home, came out. In the meantime the appellant had asked for his coat back. He had lent it to her either, on his story, before they left Golden Grove or, on her story, in the car on the way in. While waiting outside Rio's she made no complaint to anyone of rape or of anything else except not being let in.

5. She eventually was taken home. She shewed some distress on the way: the driver, her friend, thought she was still angry about how she had been treated at, or rather outside, Rio's. At home she had a hot shower - she said his ejaculate was still on her abdomen, thighs, etc (he said she had used tissues in the car to clean herself up), and thinking it all over concluded that she had been raped.

6. There was no corroborative evidence. It was her word against his.

7. The two grounds of appeal argued were:-
    "The learned Trial Judge erred as a matter of law in that His
    Honour:failed to give any adequate directions or warning as to the
    infirmities of the evidence relied on by the Prosecution (including
    the matters referred to in Ground 2 herein) as was required by the
    circumstances of the case and failed adequately to put the defence
    casefailed adequately to direct the jury as to the correct approach
    to, and importance of, the making of prior inconsistent statements
    and as to the correct use to be made of prior out of Court
    statements (see request for further directions at Summing Upfailed
    to give any adequate directions or warning as to the permissible and
    impermissible uses of evidence of apparent distress of the
    complainantfailed adequately to direct the jury as to the correct
    approach to, and importance of, the fact that both the complainant
    and the appellant had been drinking alcohol prior to the incident.

2 The verdicts are unreasonable and/or unsafe and unsatisfactory in
    all of the circumstances and including:the failure of the
    Complainant to attempt to attract the attention of, or complain to,
    Ms Tanya Howell when she stopped her motor vehicle next to the motor
    vehicle in which a rape was then alleged to be occurringthe failure
    of the Complainant immediately to complain to her friend Karen
    Smith at the premises of 'Rio's Nightclub' in circumstances in which
    such complaint would be expected if she were at that time of the
    view that she had been raped and the dangers of reconstruction and
    exaggeration associated with the circumstances under which she later
    decided to complain of rape.significant previous inconsistent
    statements made by the complainant and other prosecution
    witnesses the lack of any corroboration of the evidence of the
    complainant and the inherent unlikelihood of aspects of the story of
    the complainantthe lack of bruising or injuries or damage to
    clothingthe fact that the Appellant and other witnesses gave
    evidence on oath contraverting that of the complainantthe lack of
    directions and warnings by His Honour referred to in Ground 1
    above."

8. I must say that most of Mr David Peek's submissions for the appellant were - as I put it to him - matters for the jury. His outline of submissions would have been an excellent basis for a good address. He had not been counsel at trial but a most competent, experienced counsel was and I am quite sure she would have put to the jury everything which needed appropriately to be put.

9. One of the complaints on appeal is that the learned trial judge did not direct on intoxication. Well, counsel did not even raise the issue in her address. I accept what Mr Paul Rofe QC for the respondent put to us: intoxication was not an issue at trial. Nor, it seems from the addresses was the absence of complaint at Rio's an issue either.

10. In the course of a summing up which quite fully put the facts and the cases for prosecution and defence, the learned trial judge emphasised - as we all should - that the facts were for the jury to find: he canvassed credibility. Early he had said:-"     You have been called upon to discharge a function which belongs peculiarly to a jury and that is to determine on the evidence that has been put before you and upon nothing else whether you are or are not satisfied beyond reasonable doubt that the accused committed the crime as charged."

11. After the summing up counsel for the defence asked for redirection on two matters - to warn of acting on the complainant's evidence "without scrutinising it carefully", and, as to inconsistencies. Counsel referred to four inconsistencies in the complainant's evidence and invited His Honour to canvass each, saying he had not related his direction on inconsistency to the facts. His Honour, somewhat surprisingly, I may say with respect, refused to canvass the points individually, saying that he had already dealt with them in summing up. He did, however, give this redirection:-
    "As a result of my discussion with counsel I just want to say this,
    and I can be quite brief: in case I didn't make it clear to you I
    must stress that you should carefully scrutinise the evidence of
    Lenida" (the complainant) "before you accept it beyond reasonable
    doubt. In the course of that scrutiny you must take into account
    the various examples that have been give to you by Mrs Shaw of
    inconsistencies, inconsistencies that undoubtedly existed in the
    evidence of Lenida. You are bound to take them into account in
    deciding whether you accept Lenida's account as one worthy of
    credit. You can only convict, ladies and gentlemen, as I hope I
    have made clear if, having regard to that warning that I have given
    you, you are satisfied beyond reasonable doubt that she's told you
    the truth."

12. In my view the summing up, bolstered by the redirection, is adequate and it did put the defence case quite clearly.

13. Mr Peek in his ample Outline of Submissions:-
    "There was considerable danger in this case that a lay jury, if not
    properly instructed, could easily fail to appreciate that a true
    assessment of the case required a consideration of a rather unusual
    combination of factors, each of them being of some difficulty. It
    was necessary to analyse in detail the prosecution evidence
    including such things as inconsistencies in the versions given by
    the complainant at different times and to have a clear understanding
    as to the importance and the proper use of such inconsistencies."He
    repeated this in Oral Argument:- "I make the submission that there
    was considerable danger in this case that a lay jury, if not
    properly instructed, could easily fail to appreciate that a true
    assessment of the case required a consideration of a rather unusual
    combination of factors, ..."

14. The learned trial judge- I have quoted the passage - told the jury, in unexceptionable language that they were the arbiters of the facts. We often say to juries that we judges are in no better position than they are to assess the facts and so they are.

15. To talk about "a lay jury" - all juries are made up of "laymen" anyway - needing particular direction on facts, which they have heard and seen in evidence, is an insult to the men and women who are jurors. Of course, sometimes, particular situations may need emphasis and interpretation, linked to an exposition of the law, but they are exceptional. Jurors can as a rule assess facts and the people who give evidence just as well, if not better, than judges. I do not see that this case is an exception.

16. I say all that remembering that a Court of Criminal Appeal has the duty of reviewing the evidence - but not of substituting its own view of it for that of the jury if the jury's findings are reasonably open after proper instruction from the judge.

17. The answer to the second ground of appeal can be found in the judgment of the majority of the High Court in M v The Queen (181 CLR 487). Mr Peek cited it to us:-
    "Where, notwithstanding that as a matter of law there is evidence to
    sustain a verdict, a court of criminal appeal is asked to conclude
    that the verdict is unsafe or unsatisfactory, the question which the
    court must ask itself is whether it thinks that upon the whole of
    the evidence it was open to the jury to be satisfied beyond
    reasonable doubt that the accused was guilty. But in answering that
    question the court must not disregard or discount either the
    consideration that the jury is the body entrusted with the primary
    responsibility of determining guilt or innocence, or the
    consideration that the jury has had the benefit of having seen and
    heard the witnesses. On the contrary, the court must pay full
    regard to those considerations ... In most cases a doubt
    experienced by an appellate court will be a doubt which a jury ought
    also to have experienced. It is only where a jury's advantage in
    seeing and hearing the evidence is capable of resolving a doubt
    experienced by a court of criminal appeal that the court may
    conclude that no miscarriage of justice occurred. That is to say,
    where the evidence lacks credibility for reasons which are not
    explained by the manner in which it was given, a reasonable doubt
    experienced by the court is a doubt which a reasonable jury ought to
    have experienced. If the evidence, upon the record itself, contains
    discrepancies, displays inadequacies, is tainted or otherwise lacks
    probative force in such a way as to lead the court of criminal
    appeal to conclude that, even making full allowance for the
    advantages enjoyed by the jury, there is a significant possibility
    that an innocent person has been convicted, then the court is bound
    to act and to set aside a verdict based upon that evidence. In
    doing so, the court is not substituting trial by a court of appeal
    for trial by jury, for the ultimate question must always be whether
    the court thinks that upon the whole of the evidence it was open to
    the jury to be satisfied beyond reasonable doubt that the accused
    was guilty".

18. I suggest, that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty" in this case. I do not have any misgiving about the verdicts. It was a classic case for the jury; they saw and heard the witnesses; they were properly instructed and the verdicts were reasonably open.

19. Although it has not influenced my decision I am fortified by what Matheson J wrote in his report:-"É..having watched her" (the complainant) "closely in the witness box I, myself, had no doubt that she was telling the truth." I quote that while acknowledging that it was not for the learned judge necessarily to make up his mind on the facts at all.

20. I suggest the appeal be dismissed.

JUDGE2 OLSSON J
21. This is an appeal against the conviction of the appellant, by verdict of a jury, of two counts of rape - one digital and one penile - arising out of a single ongoing incident. The grounds of appeal complain of asserted inadequate directions by the learned trial judge to the jury amounting to error of law. They also contend that the verdicts are unsafe and unsatisfactory.

22. Much of the preliminary narrative fact was not in issue. The complainant (to whom I will simply refer by that expression) was a single woman, 18 years of age. She had lived most of her childhood at Blyth, but had come to Adelaide with her mother when she was 16. She told the jury that, about 12 months prior to the incident here in question, she had moved away from her mother and lived with friends. As at June 1995 she was living in a unit with another young woman, the witness Karen Smith, at Modbury.

23. On Saturday night, 3 June 1995, somewhat on the spur of the moment, the complainant, Karen and two male friends went together to the Village Tavern at Golden Grove. They arrived there at about 9.00pm and then went into the night club section. One of the men drove them there.

24. It appears that neither the complainant nor Karen took any money or a handbag. Despite the fact that it was June, neither wore any form of coat or jacket. Karen testified that one of the men owed her some money and they proposed to rely on him, or friends, to buy drinks. The complainant in particular was only wearing a T-shirt and some light dress pants. She had taken a copy of her birth certificate as ID, but entrusted it to one of the two men, who failed to return it to her that night.

25. The complainant had been to the Tavern several times before and knew a number of the people who were present. Her friend Karen was friendly with the 'bouncers', one of whom was the appellant. The complainant said that she had not seen him before. The complainant drank several cans of UDL mixed drink whilst at the night club. However, there was no evidence to suggest that she was intoxicated at any stage.

26. The Tavern night club eventually closed at 3.00am on the Sunday morning. During the night the complainant danced and mixed with acquaintances. At one point she spoke with the appellant. The two men who had accompanied the young women indicated that they proposed to leave, when the premises were closing. The complainant spoke to Karen, who told her not to worry. She said that she wanted to talk to a male friend (the witness Geoffrey Matthews, who worked with some of the security staff) for a while; and that he would take them to the Rio night club in Hindley Street and then take them home afterwards. Another young woman (the witness Tanya Howell) was in the group and also proposed to go to the Rio. The complainant was quite content with that arrangement. It appears that she had been a fairly regular habitue of the Rio and was on friendly terms with the bouncers there. She had actually socialised with some of them outside the night club environment.

27. The appellant was present with the group when the above arrangement was made.

28. According to the complainant, when the premises were secured for the night, following a short staff meeting, the security staff exited and Geoff and the appellant came over to where the young women were sitting outside. The complainant said that the appellant, to whom she had not really been introduced, came up behind her, put his arms underneath hers, stood her up and started to walk her down the stairs. There was other evidence that another person, and not the appellant, lifted her.

29. The two men and another male person and the three women moved off to the car park in the direction of Geoff's car. At that point the accused was in front of the complainant.

30. She said that, in the car park, the appellant said "This is my car, you can come with me". She said that, at first she demurred, but got into his car when, she thought, Tanya and Geoff got into the latter's car. (This was clearly not correct as Karen clearly travelled with Geoff. Tanya drove her own car.)

31. Some hilarity subsequently ensued when two of the cars commenced something of a 'drag race' from a set of traffic lights, as a consequence of which police pulled over the car driven by Tanya, in which the third male was a passenger.

32. I pause to comment that this evidence was in discord with that of both Karen and the appellant. Karen told the jury that she had actually introduced the complainant to the appellant earlier in the evening. She said that she thought that it was Geoff and not the appellant who had lifted the complainant up. She also agreed that it was cold outside and that she recalled the complainant wearing the appellant's jacket. (The complainant asserted that she borrowed the appellant's jacket whilst in his car; and that he removed it and gave it to her whilst driving and without undoing his seat belt). Karen travelled in Geoff's car and her evidence was that, at the car park, she called out to the complainant and the appellant said "She's coming with me."

33. The accused said that, during the evening, he told Karen that he was going to the Rio after work for a couple of drinks and Karen asked whether she and the complainant could come. He also testified that he lent his jacket to the complainant when she was going outside at closing time.

34. When the appellant arrived in the city, he drove into Victoria Street which ran between North Terrace and Hindley Street not far from the Rio. It seems that the drivers of both the vehicle driven by him and that driven by Tanya intended to park in a small parking bay area off Victoria Street known to both of them. The complainant said that she did not know that. The area was relatively dark.

35. On the complainant's narrative, she felt somewhat apprehensive at that point, but the appellant told her that they had to wait there for the others, who had been pulled up by the police and would catch up with them.

36. She says that she undid the seat belt and went to open the door, but he took her arm and turned her to face him. He moved his left arm around behind her neck, pulled her towards him, put his mouth on hers and his tongue down her throat. She said that she pushed him away and said "No, I didn't come to do that". She told the jury that she continued to protest, but he placed one of her hands on his genitals, but she pulled it away and again tried to push him away. He still held her and moved over from his seat to hers. He moved her seat back down at some stage and lay on top of her. She protested and tried to push him off, but to no avail. He then pulled her top out of her trousers, pulled her bra up and started licking her all over, despite her continuing protests.

37. The complainant further narrated that the appellant pulled her trousers and underpants down, and inserted his fingers into her vagina.

38. She said that, at that point, a car with its lights on came up behind the appellant's car so that these lights shone in it. The appellant looked up and removed his fingers. She tried to pull her pants up and push him off, but he lay on top of her and she could not even raise her arm to window height. The other car moved off again.

39. When it left, she said, the appellant pulled her pants all the way down and, with her continuing to protest, undid his pants, pulled them down and inserted his penis into her vagina. He then engaged in intercourse but eventually withdrew and ejaculated over her stomach and thighs.

40. Having done that he got off her, wiped himself with some tissues and pulled up his trousers. He then threw the box in the back. She did not use any tissues, but simply got dressed. He then told her to get out. She did so and commenced walking towards Hindley Street. He followed behind her.

41. When she got to the Rio she was refused entry because she had no ID with her, and no money. He was admitted and went straight in.

42. The complainant's evidence was to the effect that, after a few minutes, a friend of Karen, named Kathy, came out and she asked her to get Karen to come out. Her evidence in chief was to this effect:
    "Q. And how long had you been there when Karen came out.
     A. I'd say maybe five or ten minutes.
    Q. And you saw Karen. Was anyone with her.
    A. No, just Karen came out herself.
    Q. And in what state were you by the time Karen came out.
    A. I was a mess.
    Q. When you say you were a 'mess', can you describe what it was
    about you that makes you say you were a mess.
    A. I felt really disgusting, I felt sick, and I couldn't stop
    crying.
    Q. And when Karen came out, what occurred then.     she came out and
    I said to her 'Can you please take me home?' and she asked me why I
    didn't come inside. I said that I couldn't go in and I just wanted
    to go home and could she please get Geoff.
    Q. What did she say to that.
    A. She went back inside.
    Q. How did she seem to react to this request to go home.
    A. She was surprised.
    Q. Did she stay out there or go back inside.
    A. Went back inside.
    Q. Did she say what she was going to do when she went back inside.
    A. I assumed that she was going back inside to get Geoff."

43. The complainant related that, after Karen went back inside, the appellant came out, asked for his jacket, which she was still wearing, and then went off with another man in a car which had been parked nearby.

44. After a time Karen and Geoff emerged and he agreed to drive her home. The complainant claimed that she was crying when she first saw Karen and "all the way home".

45. On arrival she had a shower and continued crying as she did so. She then lay on her bed, but could not go to sleep. She did not give evidence of making any kind of complaint and was not seen by a doctor until the following Monday evening, at about 9.00pm.

46. Karen Smith testified that she saw the appellant alone in the Rio and asked where the complainant was. He at first said she had gone home and then said that she was out the front. Kathy also told her that the complainant was out the front and she went out to see her. The complainant told her that she could not get in because she had no ID. Karen agreed that she spoke to one of the bouncers, but he would still not admit the complainant without ID.

47. The scenario which actually emerged is best illustrated by the following excerpt from Karen's examination:
    "Q. You were asked about something you said on the last occasion [in
    an earlier, aborted trial] about when you were outside the club and
    you agreed that you gave this answer 'I said "What's wrong?" and she
    goes "They won't let me in" and I said "Why?" and she said "Because
    my ID is with Dave" and I went to talk to Michael and I said that
    "She's 18. She lives with me. Why won't you let her in?" and he
    goes "Because I can't if she has no ID."' Do you remember that you
    agreed you said that on the last occasion about what happened
    outside.
    A. Yes.
    Q. Did you also give the following evidence on this occasion at that
    time: 'Did you have a further conversation with Lenida at that
    stage. A. I spoke to Corey as well. I said "You know how she is.
    You've seen her I.D. Why won't you let her in?" Q. Following that
    conversation with the bouncers, did you speak to Lenida. I'll go on:
    'Following that conversation with the bouncers, did you speak to
    Lenida.
    A. Yes.
    Q. What did you discuss.
    A. I said "Do you just want to go to another club?" and she said
    "No, I just want to go home, I just want to go home". She just kept
    saying "I just want to go home".
    Q. How did she speak to you. Did she seem happy, sad.
    A. No, she was really upset and I asked what was wrong and she said
    "Don't worry about it, I just want to go home".
    Q. What did you then do.
    A. I went inside to tell Geoff that Lenida couldn't get in and that
    she wanted to go home and he offered to - paid for her to get a taxi
    home and I said "No, I want to go with her. Something is wrong."'
    Q. That is the whole of that passage in relation to that incident
    that you gave in evidence on the last occasion.
    A. Yes."

48. Karen said that the complainant looked upset - she was crying and shaking and was still in that condition on the way home and when she went to have a shower.

49. The witness Geoff Matthews said that he had agreed to take both Karen and the complainant to the Rio and run them home afterwards. His memory was that, eventually, there were three cars which went to the Rio. The complainant went with the appellant, Karen went with him and Tanya drove another man Beckims in her car. It was, he said, Tanya who was pulled up by the police for speeding. He and Karen both saw the appellant in Rio's and, when she asked where the complainant was, he responded that she was outside, they weren't going to let her in. First Karen and then he went outside. To him the complainant looked angry.

50. After some discussion about possibly lending the complainant $20 for a cab fare, Matthews drove both women home. The complainant seemed angry on the way home but he did not see her crying. She did seem to be shivering from the cold.

51. He described the events on return to Karen's unit as follows:
    Q. When you went inside, what did you do.
    A. Sat down at the kitchen table.
    Q. Did you see what Lenida did.
    A. She walked up the passage way to the unit.
    Q. Did you hear her having a shower at some stage.
    A. I heard the shower turn on yes.
    Q. At any time whilst you were there and whilst you heard the shower
    turn on, did you ever hear Lenida crying.
    A. No.
    Q. How long did you stay at the unit that morning.
    A. I was still there at 10.00am.
    Q. Did you eventually take Lenida to Elizabeth.
    A. Yes.
    Q. Was that the last you saw of her that day.
    A. No.
    Q. You took her to Elizabeth.
    A. Yes.
    Q. Then where did you see her.
    A. I saw her back at Karen's a couple - an hour or so later.
    Q. Was that prior to her shifting.
    A. Yes.
    Q. You understand that's what she was doing on the Sunday.
    A. Yes.

52. There was no suggestion by Matthews that the complainant at any stage complained of her treatment by the appellant.

53. The witness Tanya Howell said that the appellant and Geoff were known to her. They were both bouncers. She confirmed Matthew's evidence as to the occupancy of the three cars when they left Golden Grove for Rio's. She was pulled over en route by the police for speeding.

54. This witness said that it was her car which drove into the loading bay in Victoria Street, where the appellant's car was parked. She pulled in alongside his car and looked in. She made eye contact with the complainant (who she recognised as an occupant) and the latter looked embarrassed. It was obvious that the two occupants were engaging in some activity of a sexual nature. She therefore reversed out of the area and drove elsewhere.

55. A number of important points arose from the cross examination of the complainant. Notable among them were these:She knew the bouncers at Rio's well and socialised with some of them away from their work environment.She did not make eye contact with Tanya in the loading bay area and she did not sit up in the car.she described the scenario on arrival at Rio's in these terms: When you arrived at Rio's, you saw the bouncers you knew.Yes.Michael and Corey.Yes.And you say at that time you were obviously visibly distressed.Yes.Any blind Freddy could have seen here is an upset girl.I was not crying. I was not crying when I first walked up to the night club.At the time you spoke to Michael and Corey they may not have detected any signs of distress.No.Because you know that you weren't showing any signs, don't you.I know I wasn't showing any signs, because I didn't want to tell them what had happened.What you wanted to do was get into the night club and go and get Karen.And go home, yes.Go home.Yes.Not party on.No.Tofik tried to help you get in, didn't he.I don't think.Have a think about it.No, I just remember him walking straight in.You stop and think. Tofik was there with you and he told the bouncers that you had been at the village and you were over 18, didn't he.He may have. I don't know.But they said to you and to Tofik that they had had trouble with the police that night and you had to have your ID on you.Yes, that was said to me.And you didn't have one.No.So it didn't matter whether you were over 18 or not.No.Even though Michael and Corey had seen you many times before.Yes.And let you in many times before.Yes.And you were very angry about that, weren't you.Yes, I was angry, because I couldn't go in and see Karen. Not because I couldn't get in, because I understood why. I don't like to stir trouble ... .Anyway, you were there, stuck outside.Yes.Unable to get in.Yes.Getting crosser and crosser.No.Kathy comes out first.Yes.Angrily you tell her 'Get Karen', don't you.Upset I was, yes.No, I am suggesting you were angry.No, upset.You weren't crying.I wasn't crying, no.Not showing any signs of distress.But I wasn't standing there laughing either.In any event, 'Get Karen' is the word, isn't it.Yes, that's all I could say.That's all you could say.Yes.So she goes in.Yes.She comes back out, doesn't she.Yes - no, not - no, Karen came out.Didn't Kathy come back out first.No.Have a think about that. Do you think she might have.From what I can remember I only saw her once.I mean, you were waiting outside this Rio's for about half an hour.It could have been that long.Bitterly cold.Yes.Especially after Tofik came and got his jacket back off you. That would have been the last straw, wasn't it.No.Anyway, let me suggest to you what happens when Kathy comes out. You tell the members of the jury, as soon as she is out 'I want to go home."Yes.Not I wanted to go back in with Kathy.No.No way in the world, because that would have been to party on, wouldn't it.No, I didn't want to go in. The only reason I wanted to go in, to start off with, so I could go and tell Karen I wanted to go home.Is this what happened with Karen, she said to you 'What's wrong?' You said 'They won't let me in.' Karen said 'Why?' You said 'Because my identification is with Dave.' Is that what happened with Karen.Yes, something like that.Then Karen went to talk to Michael, didn't she.Yes.To try and get you in.Yes.She said to Michael 'Look, she lives with me, why won't you let her in?', didn't she.I would say yes.And he said to her 'Because I can't if she hasn't got any identification.'Yes.Then Karen spoke to Corey, didn't she, the other bouncer.I don't really remember.Why was there any need for Karen to speak to the bouncers about getting you in if all you wanted to do was go home once she arrived.Because she didn't want to go home.But you see what I am putting to you is that, when she asked you 'What's wrong?', you didn't say 'I want to go home', you said 'They won't let me in.'Yes.So, at this stage, rather than wanting to go home, are you saying that, because Karen wanted to go in and continue partying on, you were going to go with her.No,Why were you standing there while she is making all of these efforts to try and get you in if that's what you didn't want to do.Because what else could I do? I couldn't tell her what had happened. I didn't think that she would believe me.Why didn't you say to her, when she said 'What's wrong?', 'I want to go home.'I don't know.Anyway, she left.Yes, went back inside.Because your only means of transport was Geoff.Yes.She didn't come out for a long time, did she.No.And you got angrier and angrier.No, I just got more upset.I mean, you weren't crying when Karen came out.Yes.And tried to get you in.Not the first time.So you say that, after she had made all these efforts to get you in and then had gone in again, it is the second time she comes out that you are upset.Yes.Was she on her own then or with someone else.I think, yes, Geoff, Geoff was with her.Are you sure about that.Yes."She agreed that, in giving evidence at the first trial, in contrast with what she was then saying, she had said that when Tanya's car pulled into the loading bay area, she observed that it was occupied by Tanya and Beckim. She also conceded that, at that time, she had in fact made eye contact with Tanya, but hadn't done anything, because "I didn't know what to do".Critically, for present purposes, she agreed that, when Tanya's car pulled in, the appellant said to her, "Don't worry, they'll leave soon". Curiously, this evidence, which is of great importance because of the inferences which naturally arise from it, was never again referred to, either by counsel or the learned trial judge.She conceded that she told the examining medical practitioner that the appellant had rubbed her chest area and had said nothing at all about any licking.Despite the other evidence to the contrary, she denied that she was wearing the appellant's jacket prior to getting into his car. She did however admit that, in a statement made by her, the appellant had, whilst she was in front of the Tavern come out and asked whether she wanted his jacket.She accepted that she did not become visibly upset until Karen came out of Rio's for the second time.She had ample opportunity to go into the other car with Karen to travel to Rio's, but decided to go with the appellant because "they knew him" and "wouldn't have let [her] go with him if they thought that [she] was in any danger."

56. In the course of being questioned about evidence given at the first trial, these exchanges occurred: "Q. You see, when you gave evidence in January, you said you were thinking about whether it happened, or it didn't happen. I will read that to you. You said this - this is whilst you were waiting outside and after he had taken your jacket and Karen is inside you were asked, at p.47, line 17 'Q. How were you feeling, at that time? A. Like I had never, ever felt before. Just, I was thinking if it had happened or if it hadn't happened and how I was going to get home. What I was going to do.' Is that what you said.Yes.And then you say that you were crying on the way home and Geoff was there and would have seen it, don't you, is that right.Yes.When you got home and you got in the shower, did you decide at the time that you got in the shower and whilst you were in the shower and thinking about all that had happened, the way Tofik had dumped you, as you thought, I suggest, that in fact this was rape, is that what you thought.I didn't think it was rape because he dumped me.Was it when you were in the shower that you decided that it was rape.I didn't - in a way, yes.You have read it in your statement, haven't you, that you read last week, what went through your mind when you were in the shower.Yes.It is the case, isn't it, that you say that it was when you were in the shower having got home that you decided it was rape, don't you.Yes.That is not the first time, is it, that you have had a confusing sexual experience that you have called rape, is it.No.You had previously told your friend, Karen, this is before June 1995, that you had been raped.Yes, did you - yes.You take the view, don't you, now, that in fact that sexual experience was not a rape.A. Yes."

57. It is to be borne in mind that, despite the assertion of the complainant that, after the event, she had discomfort over her left hip, no abnormality could be found by the medical examiner. There was an ill-defined case of redness on the complainant's neck "consistent with a suction mark". There was no sign of bruising of the chest area, nor any genital abnormality. Specifically, there was no sign of vaginal soreness, despite complaints by the complainant that she was very sore after the alleged incident.

58. The accused gave evidence on oath, the content of which it is not necessary to recite in extenso. In essence, his evidence was to the effect that:the complainant said she was cold when she left the Tavern to go outside. She asked if she could borrow his jacket. He lent it to her.it was agreed that Karen would go with Matthews and the complainant with him. His was the first car to leave the car park.the complainant said to him, en route, that she had been watching him all night, but had been too shy to come up to him. She had sent Karen instead.when the car was parked in the loading bay it was the complainant who had made sexual advances to him and this led to consensual full penile penetration. However he ejaculated outside of her vagina on her legs. Afterwards she cleaned herself up with tissues, got dressed and walked with him to Rio's. He denied any digital penetration.his version of what occurred at Rio's was substantially in accord with that which she conceded in cross-examination.the reason why he reclaimed his jacket and left when he did was that a friend had been bashed at ClubAmerica and he was going with another friend to pick him up.

59. I have dwelt on the evidence at some length, because a proper understanding of it is essential to a due consideration of the issues arising on the appeal.

60. The first ground of appeal was expressed in this fashion:
     "1 The learned Trial Judge erred as a matter of law in that
    His Honour:
    - failed to give any adequate directions or warnings as to the
    infirmities of the evidence relied on by the Prosecution (including
    the matters referred to in Ground 2 herein) as was required by the
    circumstances of the case and failed adequately to put the defence
    case (see request for further directions at Summing Up pp.24-28 of
    the Summing Up).

- failed adequately to direct the jury as to the correct approach
    to, and importance of, the making of prior inconsistent statements
    and as to the correct use to be made of prior out of Court
    statements (see request for further directions at summing Up pp.24
    of the Summing Up).

- failed to give any adequate directions or warning as to the
    permissible and impermissible uses of evidence of apparent distress
    of the complainant.

- failed adequately to direct the jury as to the correct approach
    to, and importance of, the fact that both the complainant and the
    appellant had been drinking alcohol prior to the incident."

61. In the course of a relatively brief summing up the learned trial judge certainly adverted, essentially in comparative, narrative form, to the two conflicting factual cases of the Crown and Defence. He referred to certain points made by counsel concerning the demeanour of the complainant, the submissions of the Crown concerning the construction to be placed on the evidence of the complainant's reflections under the shower as to whether she had been raped or not, the alleged significance of some of the evidence given by other witnesses and the Crown explanation for a possible reluctance to make immediate complaint. He also directed attention to the stress placed by counsel for the appellant on the evidence of Tanya Howell and what she had said concerning some of the inconsistencies in the complainant's evidence.

62. However, it is to be noted that the structure of the summing up was such that the learned trial judge really did no more than provide a convenient summary of some of the points made by counsel, saying that that was the effect of what they had put.

63. He then simply concluded by commenting -
    "Ladies and gentlemen, as has been pointed out to you by counsel,
    the two essential accounts are diametrically opposed. Only one can
    be true, but you can't approach this case merely by asking
    yourselves who you prefer. If you're left in doubt about what
    happened, if you are not sure where the truth lies - in either of
    those situations, you must acquit the accused.You must consider each
    count separately. If you accept beyond reasonable doubt the account
    of the girl Lenida, logically, you should convict of both counts.The
    accused, you'll remember, denies that he inserted his fingers into
    her vagina and if you think that may reasonably be true, that his
    denial may reasonably be correct, you will, of course, acquit of the
    first count.Ladies and gentlemen, you can only convict this accused
    if you're satisfied beyond reasonable doubt, having regard to all
    that's been put to you on both sides, that Lenida has told you the
    truth. If you're left in doubt, you will acquit - I would think of
    both counts.On the other hand, if you're satisfied beyond reasonable
    doubt, of the evidence of the girl Lenida - notwithstanding the
    gaps, the weaknesses, inconsistencies in some respects, in that
    situation and only in that situation, can you convict."

64. When the jury retired, Mrs Shaw complained that the summing up had been inadequate, inter alia, because the learned trial judge had not sufficiently dealt with the deficiencies in the complainant's evidence in detail and given an appropriate judicial warning with regard to them.

65. After some debate the learned trial judge redirected in these terms:
    "Sorry to interrupt your deliberations, ladies and gentlemen, but as
    you may or may not know it is the practice after a jury have retired
    for a judge to ask counsel whether there is anything that they want
    him to correct or add or explain.As a result of my discussion with
    counsel I just want to say this, and I can be quite brief: in case
    I didn't make it clear to you I must stress that you should
    carefully scrutinise the evidence of Lenida before you accept it
    beyond reasonable doubt. In the course of that scrutiny you must
    take into account the various examples that have been given to you
    by Mrs Shaw of inconsistencies, inconsistencies that undoubtedly
    existed in the evidence of Lenida. You are bound to take them into
    account in deciding whether you accept Lenida's account as one
    worthy of credit. You can only convict, ladies and gentlemen, as I
    hope I have made clear if, having regard to that warning that I have
    given you, you are satisfied beyond reasonable doubt that she's told
    you the truth. Would you please retire".

66. Mrs Shaw, of counsel for the appellant, maintained her stance that this did not satisfy the deficiency articulated by her. It seems to me that this protest was well founded, and that, with respect to the learned trial judge, the technique adopted by him was not in conformity with well settled authority.

67. This was a situation of oath against oath, in which a proper, objective assessment of relative credibility was of paramount importance.

68. In this regard I can do no better than adopt the language of Duggan J in R v Rendell (Court of Criminal Appeal, 29 May 1996, unreported), where he made these points:
    "The question as to what direction should be given in relation to
    inconsistent statements made by a prosecution witness depends very
    much on the circumstances of the particular case. In some cases it
    may not be necessary to remind the jury of the particular
    statements; it may be sufficient to refer to the matter in general
    terms, pointing out to the jury that the witness may have made
    inconsistent statements and that this was an issue relevant to
    credibility. In most cases it is important to remind the jury, as
    the trial judge did in this case, of the limited use to which the
    actual prior inconsistent statement can be made. In other cases it
    will be essential to refer to the statements, give the jury careful
    directions on the matter of credibility and, in some cases, warn
    them about accepting the evidence of the witness who has made prior
    inconsistent statements. In my view the alleged inconsistent
    statements in the present case were capable of having an important
    bearing on the credibility of the complainant and, as a consequence,
    the result of the case. It was unnecessary for the trial judge to
    add a warning against accepting her evidence, but it was appropriate
    to identify the statements, refer to the circumstances in which they
    were alleged to have been made and explain to the jury that they
    would have to consider the effect of significant discrepancies about
    the actual circumstances in which the alleged offences took place.
    The significance of making serious allegations against one of the
    men and then withdrawing them (if that is what was found to be the
    case), should also have been brought home to the jury. The learned
    trial judge reminded the jury that defence counsel had addressed
    them on these matters, but this was a situation which called for
    directions which carried the weight of the trial judge's authority.
    When His Honour commented later in his summing-up on the possible
    relevance of the inconsistent statements the only explanations for
    the discrepancies which he suggested were of such a nature as to
    lessen the importance of the discrepancies by raising explanations
    which were not unfavourable to the complainant's credibility. These
    statements should have been balanced with comments of the type which
    I have suggested."

69. This was not done in the case at bar and it is truly remarkable that, as I earlier commented, neither counsel nor the learned trial judge made any reference to the extremely important concession of the complainant, apropos the situation when Tanya Howell's vehicle arrived in the loading bay, "Don't worry. They'll leave soon". On her story such a statement was totally out of context - indeed, it was consistent only with Tanya Howell's evidence of an embarrassed look on the complainant's face and a situation of consensual intercourse.

70. The analysis of the evidence upon which I have embarked readily reveals a number of important areas of inconsistency which demanded judicial identification and specific directions as to their significance. This was not forthcoming in the sense adverted to by Duggan J.

71. As Prior J said in Davis and Highland v R (1995) 183 LSJS 186 at 191, 192:
    "At the end of his summing-up the trial judge referred to
    'differences in stories' of the woman, 'absence of fleeing and other
    matters' all meriting the jury's most careful attention. Nowhere
    did the trial judge himself tell the jury that the whole purpose of
    seeking to contradict the woman was to show that she was unreliable
    in what she was then telling the jury. In a case where credibility
    was crucial, the jury had to consider whether they were convinced
    about the truth of what the woman was then telling them against any
    inconsistencies apparent to them in what they were satisfied she had
    said on other occasions. It was not necessary to direct the jury to
    treat the woman's evidence as unreliable in light of any established
    inconsistencies. It was necessary to have the jury consider what
    reliance they were prepared to place upon her evidence given in the
    witness box against such inconsistencies as they found made out
against previous statements: Driscoll v R (1977) 137 CLR 517 at 536
    and 537.This was a case where it was not enough to reiterate
    submissions of counsel. A direction from the judge was required in
    conjunction with references to evidence; not just of possible
    inconsistencies between what the woman was then saying and what she
    had said in April, but also as to any inconsistencies between her
    evidence and the case as opened to the jury. Intoxication may have
    been an explanation for some inconsistencies. That was not put to
    the jury though others were. Against the climate of the trial, the
    jury had to have more help than it was given. The trial has
    miscarried because of the failure to direct adequately on the
    matters raised by the first two grounds of appeal."

72. Mutatis mutandis, those remarks are directly apposite to the instant case.

73. This is the more so when there is brought into consideration the failure of the complainant to attempt to attract the attention and assistance of Tanya Howell in the loading bay (if, as she says, she was there in the course of being raped), her presentation on arrival at Rio's, the thrust of the conversations which there took place and her total failure to complain to people well known to her at any time soon after the event, despite several opportunities to do so.

74. That failure is not answered by the almost passionate declamations of Mr Rofe QC, seeking to explain such failure away by reference to this "na•ve, unsophisticated country girl". The complainant was, in fact, on her own evidence, a regular habitue of night clubs, and was on the pill and had had prior sexual experience.

75. Prima facie her conduct was inexplicable and at odds with common experience in life. It required careful directions to the jury to ensure that the issue and its importance was understood. These were not given.

76. To compound the problems already identified, there was no specific direction to the jury as to how it ought to approach the evidence touching on the distress of the complainant after arriving at Rio's and subsequent to leaving that venue. In this case such directions were extremely important because there were two equally cogent potential explanations for that distress.

77. One was that it reflected the impact of a rape as alleged. The other, as to which there was a good deal of supportive evidence (including the complainant's own concession of her anger concerning non admittance to Rio's and being left out in the cold), was the product of her frustration and discomfort in being treated as she was, on arrival at that night club.

78. Evidence of distress frequently arises in discussion of its capacity to constitute corroboration, but the point made by Wells J in The Queen v Henderson
(1983) 37 SASR 288 at 299 is important. As he there put it:
    "It is obvious that the dividing line between distress that is the
    spontaneous expression of fear, revulsion, and anguish, brought on
    by some recent experience, on the one hand, and distress that is
    contrived or assumed, or is attributable to some cause other than a
    sexual assault, must be firmly and clearly drawn. It is, of course,
    a question of fact and degree for the trial judge, which must be
    decided in the circumstances of each case, whether the danger that
    the distress deposed to falls into the latter category is so
    pronounced that it should not be left to the jury as potential
    corroboration."

79. The comments of Edmund Davies LJ in R v Wilson (1973) Cr App R 304 at 311 as the dangers arising from use of evidence of distress are also pertinent.

80. As Prior J pointed out in R v Pahuja (No 2) (1989) 50 SASR 551 at 575, the reasoning of Barwick CJ in Kilby v The Queen (1973) 129 CLR 460 at 468, apropos complaints, is no less applicable to evidence of distress. Such evidence is, of itself, not probative and is only an aid to assessing the credibility of a complainant.

81. Where, as here, there was no timely complaint and also substantial evidence that the distress exhibited might well have generated from a course other than any actual inpropriety on the part of the appellant, then there was a serious danger that the jury may well have made an impermissible quantum leap in reasoning absent a careful direction on the part of the learned trial judge.

82. Finally, the significance of the absence of any indicative physical signs and medical examination - given the version of events related by the complainant and of inconsistent statements made by the complainant over time were also matters of great moment in the present case. They ought clearly to have been placed before the jury, as matters upon which it needed to reflect, by the judge himself - rather than being left simply for the jury to tease their relative importance out of a situation, by way of summary without comment, of what had been put to counsel.

83. I am driven to the conclusion that, in their totality, the matters to which I have referred really amounted to a failure, adequately to put the defence case. (Compare R v Schmal (1965) VR 745, R V Wilkes and Briant (1965) VR 475). As such, the appellant has not had a proper trial according to law.

84. The second ground argued by Mr Peek was expressed as follows:
    "The verdicts are unreasonable and/or unsafe and unsatisfactory in
    all of the circumstances and including:
    - the failure of the complaint to attract the attention of, or
    complain to, Ms Tanya Howell when she stopped her motor vehicle next
    to the motor vehicle in which a rape was then alleged to be
    occurring.
    - the failure of the Complainant immediately to complain to her
    friend Karen Smith at the premises of "Rio's Night club" in the
    failure of the Complainant to attempt to attract the attention
    circumstances in which such complaint would be expected if she were
    at that time of the view that she had been raped and the dangers of
    reconstruction and exaggeration associated with the circumstances
    under which she later decided to complain of rape.
    - significant previous inconsistent statements made by the
    complainant and other prosecution witnesses.
    - the lack of any corroboration of the evidence of the complainant
    and the inherent unlikelihood of aspects of the story of the
    complainant.
    - the lack of bruising or injuries or damage to clothing.
    - the fact that the Appellant and other witnesses gave evidence on
    oath controverting that of the complainant.
    - the lack of directions and warnings by His Honour referred to in
    Ground 1 above."

85. In reality these matters essentially stem from the shortcomings in the summing up, which I have identified. Had there been an adequate summing up covering the relevant topics, then it seems to me that it could fairly be said that the matters to be addressed were typical matters for the decision of the jury. What makes the present verdicts unsafe and unsatisfactory is really the fact that the issues were not identified, with the authority of the learned trial judge, in the manner required by well settled authority.

86. I would allow the appeal, set aside the impugned verdicts and remand the appellant for retrial on both counts.

JUDGE3 WILLIAMS J
87. I agree.