R v v, E - [2007] SASC 162

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Permission to Appeal)
R v V, E
[2007] SASC 162
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Gray and The Honourable Justice David)
11 May 2007
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL - MISDIRECTION AND NON-DIRECTION
Application for permission to appeal against conviction – applicant convicted of 15 counts of rape and 3 counts of indecent assault against victim, who was his wife – photographic evidence – prosecution claimed that photographs showed victim unconscious due to medication when applicant performed sexual acts – applicant claimed acts were consensual and victim was pretending to be asleep as part of sexual role-playing – whether trial judge properly directed jury in relation to victim’s mental illness, recent complaint, use of photographs in determining if victim was unconscious during acts and circumstantial evidence – held, application for permission to appeal dismissed – trial judge’s direction in relation to circumstantial evidence was unnecessary as evidence was direct, not circumstantial, however, no miscarriage of justice as direction favourable to applicant – trial judge properly directed jury in relation to other matters.
Criminal Law Consolidation Act 1935 (SA) s 48, s 56, referred to.
Bromley v The Queen (1986) 161 CLR 315, applied.
R v V, E [2006] SASC 390, discussed.

R v V, E
[2007] SASC 162
Court of Criminal Appeal: Doyle CJ, Gray and David JJ

DOYLE CJ. I would refuse permission to appeal on all grounds argued before the Court. I agree with the reasons given by David J. There is nothing that I wish to add.
GRAY J. I would refuse permission to appeal. There is nothing that I wish to add to the reasons of David J.
DAVID J.
Introduction
The applicant was convicted by verdict of a jury of 15 counts of rape, contrary to s 48 of the Criminal Law Consolidation Act 1935 (SA) and three counts of indecent assault, contrary to s 56 of the Criminal Law Consolidation Act. The victim (whom I will refer to as “V”) was his wife. They have since been divorced.
The prosecution case was that whilst V was unconscious, due to the influence of prescription medication, the applicant performed a number of sexual acts upon her and recorded those acts with a camera. Upon discovering those images on a home computer, V contacted the police. V maintained that she was not conscious during the recording of any of the acts and, consequently, that they took place without her consent.
The applicant’s defence was that V participated in the acts consensually, agreed to them being recorded and that any images which showed her as being asleep were the result of role-playing on her part. According to the applicant at trial the type of sexual activity, the fact that V was pretending to be asleep and the recording of the sexual activity were all part of the normal sexual interaction between the two.
The applicant sought permission to appeal against all 18 convictions on the grounds that the trial judge erred in directing the jury in relation to V’s evidence, recent complaint, use of the images that were tendered in evidence and circumstantial evidence. A single judge of this Court refused to grant permission on all grounds.[1] The applicant has requested that the Court of Criminal Appeal consider the application for permission to appeal. The Court listed the application for permission to appeal for oral argument on the basis that the hearing of the application for permission to appeal would be treated as if permission was granted.
[1] R v V, E [2006] SASC 390.
The Charges and Evidence at Trial
The applicant and V had been cohabiting since mid-1998. They were married in late 2000 and separated in late 2003. At the relevant times V was a student and the applicant was employed as a medical specialist.
V gave evidence that she had suffered from depression since her early teenage years, as a consequence of which she had been referred for psychiatric treatment. She gave evidence that during 2001 she was starting to feel depressed and having sleeping problems. This became worse by early 2002. V described the history of medication prescribed by her treating psychiatrist (whom I will call “Dr S”). Dr S was called as a witness at trial. V said she originally took the drugs Effexor SR and Phenergan and then took a new drug called Stilnox, which was initially prescribed for her by the applicant. V described the effects of Stilnox, which she said would make her fall asleep very suddenly. She thought she last took Stilnox in late 2002. V said that she then used the drug Temazepam for a short while but resumed taking Phenergan to control her insomnia. She said she started to feel better in 2003. V also gave evidence that during the period between the beginning of 2001 and late 2003 she used alcohol in conjunction with the medication she was taking. She gave evidence that her depression worsened throughout 2002, as did her relationship with the applicant. On one occasion in late 2002 she took an overdose of Temazepam, which resulted in her spending two days in intensive care. V said that after this occurred she stopped taking most of her medication. She said throughout 2003 she used Phenergan, but not the other medication, and began to feel better as far as her insomnia was concerned. V gave evidence that her relationship with the applicant deteriorated throughout 2002 and worsened during 2003. In each of those years she had sex with the applicant about four times.
V gave evidence that one morning in late 2003 she saw the applicant using their home computer. Whilst he was not looking she observed a file named “Ripping V’s Anus”. She did not confront the applicant with what she had found, but over the course of the following weeks searched the computer in private and eventually uncovered images relating to the charges on which the applicant stands convicted. The images on the computer as discovered by V, and eventually the police, were stored in various folders. Each folder comprised a series of images that were taken consecutively. Each series commenced with an image of V wearing her nightwear and apparently asleep. There were then progressive images showing her with her nightwear and underwear in various stages of removal and with her body repositioned. Ultimately, acts of penetration or indecent assaults can be seen in the images. Each count in the Information refers to a particular single image, which is evidence of the act alleged. It was an agreed fact that the images in each folder that appeared before and after the image which is the subject of a particular count charged are part of a sequence. It was also an agreed fact that the applicant recorded the images and that V is the person shown in the images. There were seven different folders containing 301 separate images, 18 of which relate to the different counts charged.
The Information describes each incident as shown on the relevant image and, on each count, the date when the behaviour is alleged to have taken place was “between the 1^st day of January 2002 and the 18^th day of December 2003”. There was no expert evidence led at trial as to the date that each of the images was taken. The prosecution led evidence from V as to the approximate dates of the images, based upon factors such as the clothes she wore, her hairstyle and the bed linen shown in the images. For example:
·some images showed V wearing underwear purchased by the applicant in October 2002;
·others showed pyjamas and a dressing gown purchased in 2002;
·some images showed bed linen purchased in 2001 or 2002;
·another image shows a purple pillow that was given to V and the applicant for Christmas in 2001;
·many of the images show V with shorter hair, dating those images as late 2001 or 2002 (V gave evidence that her hair was of shoulder length until she had it cut short in late 2001; she then allowed it to grow back from 2002); and
·a final group of images show V with longer hair, which V estimated were taken in mid or late 2003. They also showed bed linen purchased in 2003.
V’s evidence therefore dated the images as having been taken between late 2001 to mid or late 2003.
On 18 December 2003, having discovered the images on the home computer, V contacted the police and reported her discovery. As a result police attended the home of V and the applicant and seized the computer, a digital camera and other items. The data on the computer hard drive was subsequently analysed and the relevant images discovered.
On 22 December 2003 police officers attended the applicant’s workplace and seized two computer hard disks, various compact disks and other computer equipment belonging to the applicant. These items were analysed and similar images to those found on the home computer discovered.
In evidence V said that she had never asked the applicant to take images of her in a sexual pose or naked. V said she had never discussed the behaviour shown on the images with the applicant and the events depicted were committed while she was unconscious and without her consent.
The prosecution called V’s psychiatrist, Dr S, who gave evidence that V had been his patient sporadically since 2000. In March 2002 he diagnosed her as suffering from clinical depression. Dr S gave evidence that he prescribed the drug Phenergan and, although he did not prescribe it, he was aware she was taking Stilnox. He described Stilnox as a drug that is used by people who suffer from sleeping difficulties.
The applicant gave evidence under oath denying the allegations. He admitted recording the images of V, the subject of the charges. However, he said V knew they were being taken and, moreover, that her posing for them was part of a sexual game they were playing. The applicant said such behaviour had always occurred in the context of her drinking and taking medication. He gave evidence that, despite V being depicted with her eyes closed in some of the images, she was never asleep, but was only pretending to be so. He said that the behaviour shown in all of the images had taken place with V’s knowledge and consent. Clearly the issue before the jury was one of knowledge and consent.
I turn to the grounds of appeal.
Grounds of Appeal
There were originally four grounds of appeal in respect of which permission to appeal was refused by a single judge of this Court.[2] By leave of the Court two additional grounds were added and argued during the course of the hearing.
[2] R v V, E [2006] SASC 390.
Original Grounds of Appeal
Ground 1
The trial judge’s direction in relation to the need to scrutinise the evidence of the complainant with great care was inadequate in that:
(a)It failed to set out or explain the reason why the evidence should be scrutinised with care.
(b)It failed to specify the evidence which required the direction.
(c)It failed to explain the need for the jury to look for other independent supporting evidence.
(d)It failed to explain adequately that it would be dangerous to convict without careful scrutiny and without the finding of suitable confirmatory evidence.
As argued this ground relates to the trial judge’s direction to the jury about reliance on V’s evidence due to the existence of mental illness. At trial Dr S gave evidence that during the relevant period V was suffering from depression and there were a number of features consistent with a borderline personality disorder. In addressing the jury the trial judge said:
In addition, I must give you a warning that is required by law because of evidence given by Dr [S]. In relation to your assessment of [V’s] evidence, you have heard Dr [S] give evidence about his psychiatric treatment of [V] over a reasonably lengthy period of time. He diagnosed her as suffering firstly from clinical depression. One of the consequences of that condition, he said, can be a distortion of thinking. In addition, Dr [S] said [V] exhibited a number of features of the borderline personality disorder or type. The features he referred to included instability in relationships. This may involve recklessness, self‑harming behaviour and a chronic sense of depression.
Another feature of the borderline personality disorder is that there may be problems with sexual behaviour as an adult. Such behaviour may include the person not conforms [sic] to social norms, the person may be promiscuous.
You have heard Dr [S] describe the relevant features [V] exhibited in relation to her mental state and behaviour. It is a matter for you to decide, members of the jury, whether you consider that the evidence of Dr [S], in the context of all of the evidence in this case, is relevant to your assessment of the credibility and reliability of [V].
I remind you that it is not for the accused to prove anything. Your task is not to choose between the competing versions of events, as between the complainant and the accused. However, you are entitled to take into account the evidence of Dr [S] in your consideration of whether, when considered with the evidence of the accused, you are left with a reasonable doubt as to the truthfulness or reliability of [V].
It is necessary that I give you a warning in relation to your consideration of [V’s] evidence because of Dr [S’s] evidence. I direct you that you must scrutinise her evidence with great care because of Dr [S’s] evidence about her mental condition. In particular, you must have regard to his evidence that the complainant was suffering from a mental condition, namely clinical depression, that she showed features of the borderline personality disorder, that she abused alcohol and drugs, and those other matters which I need not go through, that he described, and whether either alone or in combination those factors might impact on her credibility and reliability. It is a matter for you members of the jury, as to what weight you give to those matters.
This is especially so in your consideration of [V’s] evidence in this case, that you have regard to what Dr [S] told you, bearing in mind that the prosecution is asking you to consider the reliability and credibility of [V] as a witness in the witness box, in circumstances where Dr [S] has described her as presenting to him during his consultations with a histrionic presentation and an overdramatic presentation and someone who exhibits mood swings.
In my view the trial judge’s warning was appropriate and consistent with the principles set out in Bromley v The Queen[3] where Gibbs CJ said:
If it appears that a witness whose evidence is important has some mental disability which may affect his or her capacity to give reliable evidence, common sense clearly dictates that the jury should be given a warning, appropriate to the circumstances of the case, of the possible danger of basing a conviction on the testimony of that witness unless it is confirmed by other evidence. The warning should be clear and, in a case in which a lay juror might not understand why the evidence of the witness was potentially unreliable, it should be explained to the jury why that is so. There is no particular formula that must be used; the words used must depend on the circumstances of the case.
It is to be noted that the trial judge also gave an earlier warning about V’s evidence in another context when she said:
There is an important direction that I give you that relates to [V’s] evidence because as I have pointed out, the prosecution case very much stands or falls on [V’s] evidence. Unless you accept her evidence beyond reasonable doubt that she has no inkling that very intrusive sexual acts were being performed whilst she was asleep, then the prosecution has not proved its case and you need not consider the matter further. [V’s] evidence is crucial to the proof of the prosecution case. I direct you that you must examine and scrutinise her evidence with great care, before you decide whether you are prepared to act upon it.
Since it is for the prosecution to prove its case beyond reasonable doubt and the evidence given by [V] is crucial evidence relating to proof of an essential element of each of the offences, then it follows that you must be satisfied beyond reasonable doubt that you accept her evidence. Otherwise the accused must be found not guilty and I refer you particularly to the prosecution’s need to prove that she was not consenting.
The trial judge went on to emphasise that the prosecution must satisfy the jury beyond reasonable doubt of V’s credibility and reliability in relation to her evidence that she did not know anything about the sexual activity as depicted in the images. The trial judge added that the prosecution must also establish beyond reasonable doubt that V did not and was not consenting to the sexual acts depicted in the images.
[3] Bromley v The Queen (1986) 161 CLR 315, 319.
The trial judge then further added:
I have given you a direction explaining that the prosecution case in relation to the images depends upon the drawing of inferences, that is it is circumstantial evidence. Members of the jury, I direct you in the strongest possible terms about the care you must take in your consideration of whether or not you find beyond reasonable doubt that the only possible inference to be drawn from the specific image to be relied upon by the prosecution is that [V] is not consenting. That is, on the prosecution case you must find that the only possible inference to be drawn from the images is that [V] was unconscious whether through sleep, alcohol or drugs.
The jury were properly and thoroughly instructed about reliance on V’s evidence.
I would refuse permission to appeal on this ground.
Ground 2
That the learned trial judge erred in directing that there was no recent complaint was inappropriate for the following reasons:
(a)It did not include a direction of law that there was no recent complaint.
(b)It left it open for the jury to consider that there was a recent complaint given that on the complainant’s evidence she did not know about the alleged criminal behaviour until she located photographs of her on the computer. She then complained straight away.
(c)A jury may well have discarded the trial judge’s assertion that there was no recent complaint, and found that in fact on the evidence there was a recent complaint and used such evidence to support the credibility of the complainant and thus without the benefit of a direction that evidence of recent complaint is only evidence of consistency and not evidence that in its own right, supported the prosecution.
This is a curious ground of appeal. The trial judge gave a detailed and thorough direction to the jury as to how they should use the absence of recent complaint when assessing V’s evidence. The trial judge pointed out how that might affect the applicant’s ability to defend himself, how it might have affected V’s memory of events and that, if a recent complaint had been made, it might have allowed evidence to be obtained by the applicant which may have supported his account. Those directions were clearly favourable to the applicant. The trial judge however, could not have been criticised if she gave no direction at all in relation to recent complaint. The prosecution case was that as soon as V discovered the existence of the images she contacted the police. On the prosecution case V could not have done so any earlier because she had no knowledge of what had taken place because she was unconscious. Unlike a case where an allegation is made and nothing is said about that allegation by way of recent complaint, it could easily be argued that in the present case such a direction was unnecessary. In any event the direction that was given was favourable to the applicant.

I would refuse permission to appeal on this ground.
Ground 3
The trial judge erred in directing the jury both directly and inferentially that the proof of lack of consent could be established by proof of unconsciousness at the time various photos were taken.
Ground 4
The direction of circumstantial evidence was inadequate and confusing in that:
(a)It failed to indicate to the jury the various circumstances from which the relevant inferences might be drawn.
(b)It failed to adequately indicate that the indispensable step in the reasoning process relied upon by Prosecution required satisfaction beyond a reasonable doubt that at the time of various photographs being taken by the appellant the complainant was unconscious, and further;
(c)It failed to explain to the jury that it was the fact of unconsciousness that must be shown to be, together with the other circumstances, inconsistent with any reasonable hypothesis consistent with innocence including a hypothesis that the complainant became unconscious after the giving of consent.
I deal with these grounds together because the arguments cover the same points.
The applicant argues the trial judge left to the jury that proof of lack of consent could be established, firstly, by the evidence of V and secondly, by the evidence of some of the images depicting her to be asleep in the lead up to the impugned act. As I understand the argument, because the applicant’s case at trial was that even though V appeared to be asleep in the images, she was only play acting at being asleep, evidence of the images is, in a sense, a neutrality and cannot be evidence of proof that she was asleep. The applicant argues the jury should have been directed accordingly.
I reject the argument. There are many instances in a trial where evidence is led which could be used to support the prosecution case or the defence case, depending on the explanation the trier of fact accepts. The fact that a piece of evidence could be construed in a way that was consistent with the applicant’s case does not mean, depending on the view of the jury, that it could not provide evidence to the contrary.
The applicant also argues that the trial judge’s direction on circumstantial evidence was inadequate for the reasons set out in his grounds of appeal. I set out that part of the trial judge’s directions:
The second prong or the second part of the Crown case is the inferences that the Crown ask you to draw from the images in the photographs. Now you have heard the word “inferences” mentioned by the Crown in their address and indeed by defence in their address, and inferences, if you like, are a form of what you would know in your ordinary parlance if you like, as circumstantial evidence.
In other words, here is a picture the Crown are asking you to infer that it means one thing. The defence are saying “Look, here is the explanation, it doesn’t mean what the Crown says it means”. And so that is what is called an inference. You are asked to draw an inference as to what this means, and it is often said that circumstantial evidence is to be distinguished from direct evidence which is the evidence of a person who witnessed the actual alleged offence.
So circumstantial evidence as its name suggests, is evidence of the circumstances surrounding the alleged offence from which the prosecution asks you to infer beyond reasonable doubt that the accused committed that offence. In this case the inference which the Crown asks you to draw based upon the photographs, is an indispensable step in the reasoning process relied upon by the prosecution. In other words, it is a step which you must take before you are able to accept the prosecution position. Therefore, because it is crucial in the prosecution case, and because the prosecution submission to you, based on the photographs, rests upon what is called circumstantial evidence, I direct you that you cannot draw the inference that the prosecution asks you to draw unless you are satisfied that the circumstances as you see them depicted, or the inferences you are asked to draw, exclude any reasonable explanation consistent with innocence.
In other words, before you can be satisfied that the image is a proper basis for the inference which the Crown asks you to draw, you must be satisfied that it is the only rational inference that can be drawn from the image. That is, it is not enough, if it is a possible inference. It has to be the only possible or rational inference that you can draw to get to proof beyond reasonable doubt, because if there is any other possibility that the Crown cannot exclude beyond reasonable doubt, members of the jury, that is reasonable doubt.
So, the first step in that process is to determine what inference or inferences you are prepared to draw from the image and that is a matter for you. And then the next step is to determine well, if you can draw that inference, is it the only rational inference that can be drawn? And so, you cannot at the end of the day act upon or have regard to any inference in relation to those images, unless you are satisfied beyond reasonable doubt that the evidence excludes any other rational hypothesis.
In other words, if you think there is a rational hypothesis open that the prosecution have not excluded beyond reasonable doubt, then you would be left with a reasonable doubt about whether the prosecution have proved its case based on the images.
That is a legal direction I give you and you are obliged to follow my legal directions as I explained to you before, because these are principles which are at the root of our system of justice and these are principles which distinguish us from other systems of justice which are undemocratic.
In his written submissions the applicant quite properly concedes that a circumstantial evidence direction was unnecessary because this was not a case involving circumstantial evidence. On each count there was direct evidence as to what the image showed, depicting the act that was alleged. There was evidence of lack of consent by V’s evidence to that effect and also direct evidence from the images showing her to be asleep. The trial judge seemed to consider that looking at the images and “inferring” that she was asleep demanded a direction on circumstantial evidence. I disagree. In my view it was a case of direct evidence and it was for the jury to decide what they made of that evidence. However, the direction which the trial judge gave on circumstantial evidence, albeit unnecessary, could only have assisted the applicant. The issues that were placed before the jury were clearly set out and the only effect of the trial judge’s direction on circumstantial evidence would have been to demand that the jury be more careful about accepting evidence of the images favourable to the prosecution.
I would refuse permission to appeal on both of these grounds.
I turn to the additional grounds of appeal.
Additional Grounds of Appeal
Ground 1
The Learned Trial Judge erred in her directions to the jury in relation to the use that could be made of the photographs in Prosecution Exhibit P2 and in particular:
(a)failed to direct the jury that the photographs in P2 were relevant only to proof of the actus reus on each count; and
(b)failed to direct the jury that the photographs in P2 could not be used in determining whether the complainant did not consent to the sexual acts alleged in each count.
The argument seems to be that the images showing V was asleep could not be left to the jury as evidence that she did not consent to the acts in question. In other words, the images could only be evidence of the acts themselves and not lack of consent. As I have indicated, I reject that argument. Looking at the whole of the evidence, it was open to the jury to interpret those images without such a restriction.
Ground 2
The Learned Trial Judge erred by failing to direct the jury in relation to the uncharged criminal acts depicted in the photographs in Exhibit P2 other than those images that related specifically to each of the eighteen counts on the Information.
This appears to be a two-fold argument. The applicant argues there should have been a direction relating to the images in each sequence leading up to and following the image which was the subject of a count charged. It was an agreed fact that all images within each of the folders formed separate consecutive sequences (in that the first image in a folder is the first image in the series in time and the last image is the last image in the series in time). In other words, the images were part of a sequence of events depicted in each folder. To treat each image as if it depicted or was evidence of an uncharged act is inappropriate. It is inappropriate because it was not a question of uncharged acts at all, but of the jury seeing the whole of the incident the subject of each count charged by examining the series of images in each folder. The argument is misconceived.
The applicant also argues that there should have been a direction that evidence in proof of a particular count could be used only in relation to that particular count. It is important to remember that neither counsel asked for this at trial and understandably so. There was no dispute that all the acts depicted took place. On the prosecution case the evidence was presented on the basis that V was unconscious at the time of the impugned acts. On the applicant’s case the charges were defended on the basis that V was awake and participating in all of the impugned acts. Both the prosecution and defence relied on all the images in each sequence to support their respective arguments that V was unconscious or, on the other hand, that V was awake and participating. The jury was entitled to draw whatever support they found from the images for the evidence of V. The images were such that it was open to the jury to infer from the combined effect of them and V’s evidence that she was asleep or unconscious during the events. Conversely, had any of the images suggested to the jury that V was awake, the jury would have been entitled to consider that as undermining her credibility and of supporting the applicant’s version of events. The case was not presented or defended on the basis of individual consideration of individual acts. The case was presented on the basis that all images could be used to support either the prosecution case or the defence case, as the case may be. This argument advanced by the applicant takes an approach to the evidence which is inconsistent with the manner in which the trial was conducted. There was no error by trial counsel in conducting the case as they did.
I would refuse permission to appeal on both additional grounds of appeal.
Conclusion
I would refuse permission to appeal on all grounds.