R v VALLARENT
[2007] SASC 269
•5 July 2007
Supreme Court of South Australia
(Criminal)
R v VALLARENT
Criminal Trial by Judge Alone
[2007] SASC 269
Judgment of The Honourable Justice Nyland (ex tempore)
5 July 2007
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - ATTEMPT AND ASSAULT WITH INTENT - ASSAULT WITH INTENT
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INTOXICATION - PARTICULAR OFFENCES
Trial by judge alone - assault with intent to rape - objective elements of offence of assault not challenged - issue as to proof of specific intent to rape - relevance of intoxication of the accused - application of s 268 of the Criminal Law Consolidation Act discussed. Held, accused guilty of assault with intent to rape.
Criminal Law Consolidation Act 1935 ss 5, 270B and 268; Juries Act 1927 s 7(1), referred to.
The Queen v O'Connor (1980) 146 CLR 64; Director of Public Prosecutions v Beard [1920] AC 479, discussed.
R v Childs [2007] SASC 195, considered.
R v VALLARENT
[2007] SASC 269Trial by Judge Alone
NYLAND J: The accused is charged on information with the crime of assault with intent to commit rape, contrary to s 270B Criminal Law Consolidation Act 1935 (CLCA). The offence is alleged to have occurred at Whyalla on 9 July 2006. Upon his arraignment, the accused pleaded not guilty to the charge against him. An application was filed out of time in which the accused elected to be tried by judge alone. Having heard submissions from Ms Burgess of counsel for the accused, and Mr Preston of counsel for the Director of Public Prosecutions (DPP) not objecting, I dispensed with compliance with the provisions of the Juries Act 1927 as to the time within which an election should be made, and the trial thereafter proceeded before me as a judge sitting alone, pursuant to s 7(1) Juries Act 1927.
In order for the accused to be found guilty of the charge against him, I must be satisfied beyond reasonable doubt, first, that the accused assaulted the alleged victim J. For present purposes I define an assault as the intentional and unlawful application of force or violence by one person to another.
Secondly I must be satisfied that the time of any assault which is proved, that the accused had the intention of raping J. I bear in mind that the intention to commit some other sexual act or do something else is not the intention necessary to prove this particular charge.
As far as the completed crime of rape is concerned, the law states that a person who has sexual intercourse with another person without the consent of that other person, knowing that the other person does not consent to sexual intercourse with him, or being recklessly indifferent as to whether that other person consents to sexual intercourse shall, whether or not physical resistance is offered by that other person, be guilty of the crime of rape. In considering this matter, I bear in mind the definition of sexual intercourse as set out in s 5 CLCA.
The principal witness for the prosecution was the alleged victim, J. She was a credible witness whose evidence was not challenged by the defence. Nevertheless, I indicate that, in finding her a reliable and truthful witness, I have carefully scrutinised her evidence, and bore in mind her evidence that she had consumed about five or six Bacardi’s and Coke between about 8.30 pm and 4 am in the hours preceding the events which led to the charge against the accused.
J said that she encountered the accused at about 6 am on 9 July 2006, as she was returning home from a party. She was walking along McDouall Stuart Avenue, Whyalla. She first became aware of the accused when she was near a business called the Bottle and Bird. The accused said to her “You are beautiful”. She said she told the accused to go away and she then walked from McDouall Stuart Avenue across an area on P1 marked “coaches loading” in the direction of the Westlands shopping centre. It seemed that initially she had planned to get a taxi there but, when she got to a place where there were some phone boxes, she decided to phone her mother. She said that as she was dialling her mother, the accused approached her again and pushed the hang up button on the phone. She said she then tried to call triple 0 but the accused pushed her hand from the phone and grabbed the back of her jacket. He then dragged her across the road to an area which is marked “Bin, Garden” on P1. This area is also depicted in photos 3 to 6 inclusive of P2.
J said that in the bin/garden area the accused pushed her to the ground but she managed to get free. She ran back to the pay phone and dialled triple 0 but the accused came back and grabbed her again on the jacket sleeve. He again dragged her back to the garden area. She said she asked “Why are you doing this?” but the accused did not respond. She was then pushed into the ground and was lying on her stomach with her body on the concrete area shown in the photographs with her face in dirt and bushes. She said that she could not breathe at all as the accused was pushing on her lower back with what felt like his knee and his hand was pushing her head down. She said he grabbed the top part of her jeans and tried to pull them down. He moved them about two or three centimetres, or maybe a little more. She again asked “Why are you doing this?” whereupon the accused responded “I’m sorry, I’m sorry”.
J managed, however, to get away from the accused once more. She returned to the phone and asked for help. Subsequently, an older man approached and she asked that he not let the accused get away. The accused then sat down on concrete near the pay phone and not long after that police officers arrived. J returned to the Whyalla police station with the police officers where photographs were taken of her injuries. They are depicted in photographs 7 to 15 of P2 and show an injury to her lip, scratches to her arms, a large bruise on her back and grazes and injuries to her knees.
Wayne O’Malley was the older man who came to her assistance. He described Ms Davies as being “distraught”. He said her appearance was scruffy, her makeup was running, like mascara running, so obviously she had been crying, and that she cried out for help. He said that she had told him that the accused had tried to rape her but in cross-examination agreed that his memory had been better at the time that he had made his statement to the police on 12 July 2006 and that what J had said was “I’ve been attacked. It was him. He dragged me into the bushes. My shoes are in the bushes”.
Mr O’Malley’s evidence of what J said to him is not proof that the accused did assault her or, if he did, that he intended to have sexual intercourse with or without her consent. J’s behaviour at the time of making that complaint to Mr O’Malley is, however, consistent with the occurrence of the events about which she gave evidence.
Mr O’Malley also described the appearance of the accused whom he thought was “in an altered state”. He said that he smelt of alcohol and appeared to be intoxicated.
Senior Constable Ranger and Constable Heinze were two of the police officers who attended at the scene and made observations of the area. Senior Constable Ranger spoke to the accused and subsequently decided to arrest him. Ranger described the accused as:
[V]ery intoxicated … very incoherent with his speech, a lot of what he said was very hard to understand, if it could be understood at all; he was very unsteady on his feet, to the point of falling over.
The accused was placed in a police van and escorted to the Whyalla police station. Ranger activated a video recorder while at Westlands and again at the police station. The prosecution did not rely on any admissions or statements made by the accused in the course of that “interview” but I indicate that, if they had, an issue may well have arisen as to the admissibility of those statements, although not subject to any Rule 9 application to exclude.
The appearance and behaviour of the accused in the video was, however, supportive of the evidence of Mr O’Malley and the two police officers as to the state of intoxication of the accused and in that way also assisted the defence case.
The accused elected not to give evidence and I draw no adverse inference against him as a result of him exercising the right given to him by the law.
Ms Burgess did, however, tender a report of Dr O’Brien, dated 22 January 2007 (Exhibit D9), and Professor White, dated 30 March 2007 (Exhibit D10), in support of the defence case. Those reports were admitted with the consent of the prosecution who did not require the authors to be called nor made available for cross-examination on the content of those reports.
Dr O’Brien examined the accused on 24 November 2006. Dr O’Brien obtained some history as to the alcohol the accused had consumed in the period leading up to these events. The accused told Dr O’Brien however that he did not remember anything that happened.
Dr O’Brien considered that the accused has a significant alcohol problem and that “almost certainly his amnesia is genuine and due to effects of severe intoxication”. He also said “with respect to an understanding of his behaviour, more likely than not it was the product of disinhabition (sic) secondary to a state of significant intoxication”.
Dr O’Brien did not consider that the accused had a mental impairment defence, but raised the issue of his capacity to form the requisite intention. However, he accepted that was an issue for the court to determine, bearing in mind the totality of the evidence.
Professor White is the Head of the Pharmacology Department of the University of Adelaide. He did some calculations of the possible blood alcohol level of the accused at the time of these events, based on the sample collected at 10.40 am on the day in question of .149%. Allowing for variables, Professor White gave an estimate of between .199% and .222% and that is consistent with the observations of the various witnesses as to the level of intoxication of the accused. Professor White said the effects of such a blood alcohol level include the following:
·Impaired physical movement, usually observed as slurred speech and impaired balance.
·Difficulty in thinking and ability to concentrate.
·Sedation that may result in sleep, but which is also dependent on the degree of stimulation in the person’s environment.
·Impaired memory for events that occurred during the period of intoxication. The term blackout is sometimes used to describe this phenomenon. It refers to complete loss of memory for events that occurred during the period of intoxication with no possibility of recall. It is most likely at blood alcohol concentrations of 0.25% and above, but frequently occurs at lower levels.
·Disinhibited behaviour that may be manifest as risky or impulsive behaviour.
Ms Burgess suggested in the course of her address that I should entertain a reasonable doubt about the ability of the accused to form the basic intent (that is, to assault J), as well as the specific intent (that is, to rape J). She did, however, acknowledge that, due to his lack of memory, the accused had some difficulty in challenging the objective elements of the assault. The accused accepted that the analysis of the clothing (which showed a cross-transfer of fibres between the top (Exhibit P7), worn by the accused and the jacket (Exhibit P6) worn by J), the identification of him on the video tape (Exhibit P4), together with the evidence of J and the police officers established that he was the person who assaulted J. The real issue for determination, therefore, related to the issue of specific intent, that is, whether at the time of the assault there was an intention to rape.
In the course of argument the relevance of s268 CLCA (which came into operation on 25 November 2004) was discussed.
Ms Burgess also raised the possibility of an alternative verdict of causing serious harm by criminal negligence in line with the reasoning of Judge Muecke when sentencing in the case of Lusseau (unreported, 1 June 2007), that being a case in which a plea of guilty to criminal negligence was accepted in satisfaction of rape charges.
I am satisfied that the accused was affected by alcohol at the time he is alleged to have committed this offence. Accordingly, depending on my findings, that may require me to consider the application of s 268 to these proceedings. Section 268 provides as follows:
(1) If the objective elements of an alleged offence are established against a defendant but the defendant’s consciousness was (or may have been) impaired by intoxication to the point of criminal irresponsibility at the time of the alleged offence, the defendant is nevertheless to be convicted of the offence if it is established that the defendant -
(a)formed an intention to commit the offence before becoming intoxicated; and
(b)consumed intoxicants in order to strengthen his or her resolve to commit the offence.
(2) If the objective elements of an alleged offence are established against a defendant but the defendant’s consciousness was (or may have been) impaired by self-induced intoxication to the point of criminal irresponsibility at the time of the alleged offence, the defendant is nevertheless to be convicted of the offence if the defendant would, if his or her conduct had been voluntary and intended, have been guilty of the offence.
(3) However, subsection (2) does not extend to a case in which it is necessary to establish that the defendant -
(a)foresaw the consequences of his or her conduct; or
(b)was aware of the circumstances surrounding his or her conduct.
Example—
A, whose consciousness is impaired by self-induced intoxication to the point of criminal irresponsibility at the time of the alleged offence, beats B up and B dies of the injuries. In this case, A could be convicted of manslaughter but not of murder (because A is taken to have intended to do the act that results in death but not the death).
(4) If
(a)the objective elements of an alleged offence are established against a defendant but the defendant's consciousness was (or may have been) impaired by self-induced intoxication to the point of criminal irresponsibility at the time of the alleged offence; and
(b)the defendant's conduct resulted in death; and
(c)the defendant is not liable to be convicted of the offence under subsection (1) or (2); and
(d)the defendant's conduct, if judged by the standard appropriate to a reasonable and sober person in the defendant's position, falls so short of that standard that it amounts to criminal negligence, the defendant may be convicted of manslaughter and liable to imprisonment for life.
(5) If -
(a)the objective elements of an alleged offence are established against a defendant but the defendant's consciousness was (or may have been) impaired by self‑induced intoxication to the point of criminal irresponsibility at the time of the alleged offence; and
(b)the defendant's conduct resulted in serious harm (but not death); and
(c)the defendant is not liable to be convicted of the offence under subsection (1) or (2); and
(d)the defendant's conduct, if judged by the standard appropriate to a reasonable and sober person in the defendant's position, falls so short of that standard that it amounts to criminal negligence, the defendant may be convicted of causing serious harm by criminal negligence.
Maximum penalty: Imprisonment for 4 years.
(6) A defendant's consciousness is taken to have been impaired to the point of criminal irresponsibility at the time of the alleged offence if it is impaired to the extent necessary at common law for an acquittal by reason only of the defendant's intoxication.
It would appear therefore that section 268 purports to modify the common law as it applies to the effects of intoxication on criminal liability as set out by the High Court in The Queen v O’Connor[1]. Prior to O’Connor, the position at common law was as set out in Director of Public Prosecutions vBeard[2]. That provided that an accused person might use evidence of self induced intoxication to show that he did not have the specific intent required for specific intent offences but might not use such evidence to show that he did not have the basic intent required for basic intent offences.
[1] (1980) 146 CLR 64
[2] [1920] AC 479
In O’Connor however the High Court (by majority) disagreed with Beard and in effect held that intoxication was relevant to both basic and specific intent.
In the report of the second reading speech (Hansard, 23 February 2004) with respect to the proposed s 268 the Attorney General said that the effect of the Bill was to overturn the majority decision in O’Connor and restore a position similar to the Beard rules although not identical. He said (at 1356):
The general principles work in the following way. All serious criminal offences consist of ‘physical elements’ and ‘fault elements’. Together, these elements make up a crime. All physical elements and all fault elements must be present at more or less the same time to make a person guilty of the crime. These elements are set by the legal definition of the offence. In South Australia, the crime, and, hence its elements, may be set out in legislation by Parliament or they may be wholly created by judges at common law, or they may be a mixture of both sources. In general terms, physical elements describe or define matters or events external to the accused. In equally general terms, fault elements describe or define either the state of mind of the accused in relation to the offence that must be proved for guilt to attach, or a hypothetical state of mind by which the accused must be legally judged for guilt to attach.
Physical elements may be conduct and circumstances that describe conduct or consequences, or both. Conduct may consist of an act, an omission or a state of affairs, but is usually an act. Fault elements often attach to these physical elements. Invariably, for example, an act must be done intentionally for criminal liability to attach. An act must also be done ‘voluntarily’ in the sense described before.
…
The second matter that requires mention is the problem of fault elements that have no physical elements. These are quite common. They are commonly expressed as doing something ‘with intent to’ do something else. The result need not have actually happened. What is punished is the doing of the act with the intention of achieving the forbidden result. A good example is wounding with intent to cause grievous bodily harm. It is not necessary that any grievous bodily harm actually happened. What is punished is the wounding with the intent that it would happen. Under both the Beard rules and the proposed scheme, intoxication can be used to deny the further intent, but cannot be used to deny the intention to commit the act performed - in the example, the wounding.
I should mention that s 268 and the impact of that section on common law principles relating to intoxication as a defence was recently discussed by the Court of Criminal Appeal in R v Childs[3], although that case is perhaps of limited assistance in this case as Childs was primarily concerned with the relevance of s268 to charges of murder/ manslaughter.
[3] [2007] SASC 195
Having considered these various matters it appears to me that s268 will only arise for my consideration in this case if as a result of the evidence relating to the intoxication of the accused I am left with a reasonable doubt about the formation by the accused of the basic intent with to commit the crime of assault or whether he was so intoxicated that his actions were involuntary. Before proceeding further therefore it is necessary to express my findings of fact.
I am satisfied as to the following matters.
1.That the accused first approached J in McDouall Stuart Avenue at which time he said “You are beautiful”.
2.The accused again approached J as she was endeavouring to call her mother from the phone box at Westlands and pushed the hang up button.
3.The accused grabbed J on the jacket on two occasions.
4.The accused dragged J across the road into the garden area twice.
5.That the garden area was more secluded than the area near the phone boxes where the accused first grabbed J on the jacket.
6.That in the garden area on the second occasion the accused forcibly pushed J to the ground and had part of his body in her back. He also pushed her head down with his hand.
7.While in the garden area the accused endeavoured to pull down J’s jeans.
8.The accused then apologised to J.
9.That J suffered the injuries she described in evidence and as depicted in the photographs (Exhibit P2).
In my opinion, the actions of the accused demonstrate purposive and deliberate behaviour on his part which enables me to be satisfied that all the elements of the charge of assault have been proved beyond reasonable doubt, ie there was a deliberate (that is, intentional), and unlawful application of force by the accused to J which was conscious and voluntary notwithstanding that the accused was affected by alcohol at that time.
As I am satisfied as to that aspect of the matter s 268 does not appear to have any further part to play in the resolution of this matter. If, however, I had not been satisfied to the requisite degree as to the conscious and voluntary nature of the accused’s actions it would have been necessary to turn to s 268 to determine whether the mental element of the offence could nevertheless be presumed.
In view of my findings, however, it would appear to be the case that, at the very least, the accused must be found guilty of common assault, which I consider is the appropriate alternative verdict in this case if I am left with a reasonable doubt about the specific intent of the accused to commit the crime of rape.
In those circumstances, I consider that it is unnecessary to determine the issue of a possible further alternative verdict of criminal negligence as canvassed by Ms Burgess in the course of her submissions.
The offence as charged does however require the prosecution to prove beyond reasonable doubt, that at the time of the assault, the accused had the specific intent to commit rape. Consistent with the comments made by the Attorney-General in the second reading speech, together with the discussion in Childs it would appear that, as to this aspect of the matter, the common law position as set out in O’Connor still prevails. That means that at this stage of the enquiry I must still have regard to the level of intoxication of the accused and the effect that may have had on his capacity to form the specific intent to rape J.
Ms Burgess submitted that the evidence fell short of establishing such an intent. She suggested that the statement “You are beautiful” could be regarded as simply a drunken utterance by the accused. She pointed out there were no other statements made by the accused from which an inference could be drawn that he had any sinister intent. The accused did not remove any of his clothing, there was no evidence of indecent contact with J’s body, and the apology at the end of the incident was consistent with a realisation that he had simply behaved in an obnoxious or annoying way.
In considering this difficult issue of intention, I am left with the task of inferring what was in the mind of the accused by looking at all of the surrounding circumstances. As was put by the defence, the statements made by the accused, both before and after the assault, might be regarded as somewhat equivocal. I consider, however, that the only reasonable inference to draw from the two approaches to J, and what appears to have been a quite determined effort by the accused on two separate occasions to drag J across the road into the garden area, despite her protests, and the forcing of her body to the ground in that area and the attempt to pull down her jeans is that, at the time of the assault, the accused formed the intention to have sexual intercourse with J without her consent, and that he well knew she was not consenting.
It may be that the accused changed his mind as soon as J resisted and it may be that he also immediately regretted his actions. Those matters do not, however, demonstrate a lack of intention to rape J at the time that he committed the assault. The conduct of the accused would appear to be consistent with the disinihibited behaviour described by Dr O’Brien and Professor White in their reports, and to have been the result of his excessive consumption of alcohol. But, even if this was a drunken intention and a momentary one, and one which the accused might not have formed if sober, that does not absolve him from responsibility for his actions, as I am satisfied that, notwithstanding his degree of intoxication, at the time of the assault, the accused formed the intention to have sexual intercourse with J without her consent. The charge against the accused has therefore been proved beyond reasonable doubt and I return a verdict of guilty to the charge.
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