R v V-R, E - [2006] SASC 390

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v V-R, E
[2006] SASC 390
Reasons for Decision of The Honourable Justice Vanstone
21 December 2006
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION
Application for leave to appeal against convictions recorded for fifteen counts of rape and three counts of indecent assault - whether trial judge wrongly directed jury on lack of recent complaint - whether trial judge misdirected jury on complainant's evidence - whether trial judge misdirected jury on circumstantial evidence - directions could not have had adverse affect on jury's consideration of defence case - application on all grounds dismissed.
Bromley v The Queen (1986) 161 CLR 315, discussed.

R v V-R, E
[2006] SASC 390
Criminal
VANSTONE J:

The applicant seeks leave to appeal against convictions on fifteen counts of rape and three counts of indecent assault. Those verdicts were rendered on 30 August 2006 after a trial before Judge Shaw and a jury in the District Court.
The new grounds of appeal which have been filed recently disclose four grounds which in argument by Mr Griffin QC for the applicant, have been conflated into three. They concern the terms of the warning given to the jury as to the need to scrutinise the complainant’s evidence, the directions given by the judge as to the lack of recent complaint and directions given on circumstantial evidence.
The prosecution case, accepted by the jury, was essentially that whilst the complainant was unconscious and under the influence of prescription medication, the applicant, her husband, performed a number of sexual acts upon her and recorded those by means of a camera. The images recorded were of the complainant, apparently unconscious with her eyes closed. The defence was that her appearing in that way was part of a role-play. That is, the defence contended that the complainant was pretending to be asleep as part of the sexual interaction between her husband and herself.
I turn then to ground 1. There was evidence before the jury that the complainant was at relevant times being treated for psychiatric conditions and that she was taking prescription medication. The judge chose to warn the jury that the complainant’s state of mental health could have an impact on her reliability in giving evidence. I note in passing that the judge told the jury that she was required to give that warning “by law”. I do not know what the judge could have meant by that. The warning given seems to have been of the nature discussed by the High Court in Bromley v The Queen (1986) 161 CLR 315. In that case no particular formula was said to be necessary. It was held (at 319) that a warning was required “as a matter of common sense” where a witness giving important evidence had a mental disability which might affect the capacity to give reliable evidence. There the witness thought to require a warning had a profound psychiatric condition involving delusions and had suffered from delusions at about the time of the events of which he gave evidence. In any event in the present case the judge explained the conditions of which the complainant suffered and referred to the evidence from her treating psychiatrist that clinical depression could give rise to distortion of thinking.
The specific complaint was that the direction given lacked any instruction as to why the evidence should be scrutinised with care and what evidence in particular demanded scrutiny. Further, it was suggested the warning should be a corroboration warning and that the jury should have been told it was dangerous to convict without such corroboration.
I consider that these complaints cannot be maintained. It would have been wrong for the trial judge to go beyond the evidence of the psychiatrist in explaining what consequences the psychiatric illness of the complainant might have had in terms of her evidence. Plainly the warning directed the jury to scrutinise all the complainant’s evidence for the reasons given. The Bromley warning is not a corroboration warning. Arguably at least, there would have been no warrant or indeed justification for the trial judge to issue a corroboration warning.
Again, in my view, the direction given was very favourable, indeed I consider, favourable to a fault to the applicant.
Ground 2 concerned the direction on lack of recent complaint. The argument was that no such direction should have been given and that having given it the judge failed to define “recent complaint” and failed to explain the use to which evidence of recent complaint could have been put, had there been any.
It seems to me that the direction given by the judge was, with respect, a little harsh on the prosecution. Its case was that until the complainant discovered the images recorded by her husband, she had no knowledge of the activity and therefore could not have complained about it earlier. Nonetheless, I consider that the judge did explain, concisely and clearly, what she meant by evidence of recent complaint. Further I would see no point in her going on to direct the jury as to the use to which such evidence could have been put, given that she had ruled that there was none. The judge explained the relevance of the lack of recent complaint in terms of the possibility of fabrication by the complainant and to explain why forensic disadvantage might have accrued to the applicant by reason of his not earlier being aware of the allegations of rape or indecent assault. In the circumstances, the direction could, in my view, only have favoured the applicant. I would refuse leave to appeal on that ground.
Grounds 3 and 4 were based on a circumstantial evidence direction given by the trial judge. The direction given by the judge was to the effect that in order to convict the jury must be satisfied beyond reasonable doubt of the truth of the complainant’s statement that she had no recollection of the various acts depicted in the computer files. Then the jury were instructed that in order to convict they must be prepared to infer beyond reasonable doubt from the photographs that the complainant was not in fact consenting to the sexual activity.
Again in my view this was a direction which was unduly favourable to the defence. This was primarily a case of direct evidence from the complainant to the effect that she did not consent to the activity depicted. To class the case as a circumstantial one and then divide it into the two matters directed upon was in my view requiring too much of the prosecution. However I do not agree with the argument of Mr Griffin QC that the directions were confusing. The facts in dispute were quite straight-forward, if somewhat bizarre, and I cannot see that the jury would have any difficulty in applying the law as the judge gave it to them, to the facts. Counsel suggested a specific direction as to the possibility of the complainant having consented and then fallen asleep and forgotten about having giving consent, should have been given. However this was not a scenario which was raised in cross-examination of the complainant and in any event, it was only another possible explanation which on the directions given had to be excluded before verdicts of guilty were returned.
The summing up as a whole reads as one which was extremely favourable to the accused. I cannot see that any imperfection in the way in which the matters of law were left to the jury could have had an adverse impact on the way in which the jury considered the defence case.
I would refuse leave to appeal on all grounds.