R v Vincent Wayne Skeen No. SCCRM 96/14 Judgment No. 5666 Number of Pages 8 Firstcwds

[1996] SASC 5666

COURT IN THE COURT OF CRIMINAL APPEAL OF SOUTH AUSTRALIA MATHESON(2), OLSSON(3) AND DUGGAN(1) JJ

CWDS
Criminal law - jurisdiction, practice and procedure - judge's summing-up - appellant convicted of rape - complainant unable to identify appellant as one of two attackers - prosecution case resting principally on evidence of an occupant of the house in which the alleged offence took place - witness saw the appellant in the room where complainant allegedly raped - witness intoxicated at the time - held that the trial judge gave the jury an appropriate warning as to the care to be exercised in assessing the evidence of the witness. Bromley v R (1986) 161 CLR 315; Longman v R (1989) 168 CLR 79 at 86; R v Faure (1993) 67 A Crim R 172, discussed.
Criminal law - jurisdiction, practice and procedure - burden of proof - discussion as to whether the direction on proof beyond reasonable doubt invited the jury to embark upon an objective analysis of reasonableness - held that the direction given was not erroneous. R v Wilson, Tchorz and Young (1986) 42 SASR 203; R v Pahuja (1987) 49 SASR 191; R v Gerbert, Haley and Black (1992) 60 SASR 110, discussed.
Criminal law - jurisdiction, practice and procedure - judge's summing-up - complaint that trial judge gave no direction as to the proper approach to circumstantial evidence - held that the jury should have been given a direction on circumstantial evidence and that the directions given had the effect of withdrawing from the jury the issue as to whether the person identified in the room was one of the offenders.

HRNG ADELAIDE, 23 May 1996 #DATE 6:6:1996 #ADD 15:10:1996
Counsel for Crown:         Mr S Millsteed and with him
   Ms S Mcdonald
Solicitors for Crown:     DPP (SA)
Counsel for appellant:     Mrs M Shaw With Mr A English
Solicitors for appellant: ALRM

ORDER
Appeal allowed and retrial ordered.

JUDGE1 DUGGAN J The appellant was found guilty by verdict of a jury of three counts of rape. It was alleged at the trial that he committed the offences on a young woman who was staying overnight at the home of a friend. It was also alleged that the offences were committed jointly by the appellant and another man. The appellant has appealed against the convictions. It was argued before this court that the verdicts are unsafe and unsatisfactory and that the learned trial judge failed to direct the jury that it would be dangerous to convict the appellant on the uncorroborated evidence of the principal witness for the prosecution, the friend at whose house the alleged offences were committed.
2. The main argument advanced by the appellant in support of both these grounds of appeal was that the evidence of the witness, whose testimony was crucial to the prosecution case, could not be relied upon because of her state of intoxication due to the consumption of alcohol and drugs. The appellant was also given leave to add two further grounds which allege that the learned trial judge erred in failing to direct the jury as to the correct approach to circumstantial evidence and that he erred in directing the jury on the standard of proof.
3. The complainant stated in evidence that on the evening of Sunday 23rd May 1993 she stayed at the house of an acquaintance, Sally Douglas. She gave evidence of having consumed a considerable amount of alcohol on the Saturday and Sunday and that she had taken a number of sleeping pills on both days. She said that she went to sleep in a bedroom of the house at about 4.00 pm on the Sunday. A man named Corey Attick slept in the same bed during the afternoon and evening. Ms Douglas occupied another bedroom with a man named David.
4. According to the complainant she was awoken by the sound of loud banging on the front door of the house. She then heard two male voices inside the house and the accents appeared to be those of aboriginals. She heard the words "Come on, get up and party" spoken. The complainant said she walked towards the bedroom door in order to close it when she was grabbed. It was dark, but she sensed that two people were holding her. She said she was then dragged to a spare bedroom and thrown down onto a mattress.
5. The complainant gave evidence to the effect that she realised by this time two men were involved and they proceeded to have intercourse with her. She said one of the men also placed an object which looked like a piece of wood into her anus. She said each man took a turn in having intercourse with her while the other man held her down. She called out for help but there was no response. Eventually the men left and, after unsuccessfully attempting to awaken Corey Attick, she went to Sally Douglas' room and spoke to her. She was unable to identify her attackers.
6. Sally Douglas gave evidence that she also had been drinking and taking sleeping tablets over the weekend of the incident. According to the evidence she was drunk by the time she went to bed on the Sunday afternoon. She said that during the night she was awoken by a knock on the front door. She opened the door and saw the appellant, who is an aboriginal, standing there with another aboriginal man. She said the appellant had been known to her for about three years prior to this occasion. According to the witness she knew the other man by sight but did not know his name. She let both of them into the house. The appellant said "What about a couple of cones?" and she said "No, I don't want any. I'm going back to bed".
7. Miss Douglas said she went back to bed while the men were still in the house. About half an hour later she heard the complainant yelling and screaming. When she went to investigate she saw the appellant coming out from the spare bedroom. She said she heard the complainant's voice from within the room say "Get off". This occurred when the appellant was in the vicinity of the bedroom door. According to the witness she asked the appellant what was going on and he replied "Nothing". The witness said she was frightened and so went back to her bedroom. Later she heard sounds which were consistent with the men leaving the house. She then heard the complainant attempting to wake Corey Attick.
8. The appellant gave evidence. He said he knew Sally Douglas and had been to her home on a number of occasions. He said he could recall going to the house on a Saturday or Sunday evening in May 1993. He could not recall the exact date. He said he went there to see if she had any cigarettes. According to the appellant another aboriginal man arrived at the door of the house at about the same time. He did not know this other man, nor did he speak to him. The appellant knocked on the door and Miss Douglas came to answer it. He asked her if she had any cigarettes and she replied that she only had butts left. He entered the house and the other aboriginal man came in and sat in the lounge room. The appellant said that he saw a white man on the couch in the lounge room. Sally Douglas was asked whether the white man was in the lounge at this time. She said she did not recall but she said the couch is behind the front door. She said she does not remember whether a white man was there. She agreed that her premises were "a bit of a party house" and that people were in the habit of dropping in at all hours.
9. The appellant said that he went to the door of one bedroom and saw the complainant and Mr Attick asleep in the bed. He then went to the spare bedroom. There was no-one there. He denied the suggestion that Miss Douglas saw him as he was coming out of that bedroom. The appellant denied having any contact with the complainant. It was his case at trial that Miss Douglas was mistaken in her assertion that she had seen him coming out of the door to the spare bedroom. Counsel for the appellant at the trial argued before the jury that there was a reasonable possibility Miss Douglas was either mistaken in her assertion that she saw a man coming out of the bedroom or that she was at least mistaken in saying that it was the appellant. It was not suggested that Miss Douglas has fabricated the incident, nor was it contended that the complainant had not been raped by two men in the circumstances described by her.
10. It is clear, therefore, that Miss Douglas' evidence was crucial to the prosecution case that the appellant was one of the two men who had raped the complainant. According to her evidence the appellant came to the home that evening and walked in at the same time as another aboriginal man. If, as Miss Douglas deposed, she heard the complainant yelling and screaming while the appellant was in the house and she saw him coming out of the spare bedroom while the complainant was calling out "Get off" and her evidence is considered against the background of the facts deposed to by the complainant, the jury was entitled to draw the inference that the appellant was one of the two men involved in the offences. The appellant's response that he saw the complainant asleep and in bed with Attick and then went to the spare bedroom, saw that someone was there and walked away is completely at odds with Miss Douglas' evidence.
11. However, as I have already pointed out, the argument that the verdicts are unsafe and unsatisfactory was founded mainly on the contention that Miss Douglas' evidence was almost totally unreliable. In considering this submission it is relevant to have regard to her history of drinking and drug taking. There does not seem to be any contest about the fact that she was drunk at the time she went to bed on the Sunday afternoon. She agreed that she was staggering a little when she got up during the night.
12. Mrs Shaw, for the appellant, drew our attention to a number of discrepancies between Miss Douglas' evidence and that of the complainant. They included observations as to whether there were any lights on in the house at the time of the incident, the time frame over which the incident took place and various other matters. It is unnecessary to deal with the evidence on each of these issues: it suffices to record that I have taken them into account when fulfilling the task required of an appellate court when asked to conclude that a verdict is unsafe or unsatisfactory, a task explained by the High Court in M v The Queen (1994) 181 CLR 487 at 494:
    "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 Chamberlain v The Queen (No. 2) (1984), 153 C.L.R., at
    pp. 618-619." This court is required to assess the whole of the evidence in the light of the discrepancies to which I have referred, the reliability of the witnesses generally and the inherent improbabilities claimed by the appellant to exist on the face of the evidence of the complainant and Miss Douglas in particular. The question for decision is whether the jury, acting reasonably and after proper direction, should have entertained a reasonable doubt.
13. In the result I have reached the conclusion that the verdicts are not unsafe or unsatisfactory simply by reason of the unreliability of the two witnesses. The matters raised by the appellant in support of this ground are most relevant in the assessment of the evidence generally, but, with particular reference to the witness Miss Douglas, I am of the opinion that they do not support the conclusion that her evidence is so lacking in credibility as to form an unreliable basis from which inferences might be drawn as to the guilt of the appellant. It is not in dispute that the complainant was raped by two men on this occasion. It would appear that Miss Douglas correctly identified the appellant as being a person present in the house at the relevant time. It was open to the jury to conclude that she was also correct in giving evidence of the other observations relating to his movements within the house and particularly in the vicinity of the spare bedroom where the offences took place.
14. The criticisms made of Miss Douglas' evidence and the effects of alcohol and drugs upon her at the time of the incident are relevant also to the next ground of appeal which complains of a failure to warn the jury that it would be dangerous to convict the appellant on the basis of her uncorroborated evidence. Mrs Shaw argued that a warning was required by reason of the principles discussed in Bromley v The Queen (1986) 161 CLR 315. In that case it was claimed that the evidence of the principal witness for the prosecution in a murder case was a schizophrenic and that his evidence was inherently unreliable. The point in issue was whether the jury should have been warned about acting on the witness's evidence. Brennan J said
(325):
    "It follows that there is no universal rule of practice that
    a trial judge should give a warning - much less a warning
    according to a prescribed formula - whenever a jury might
    convict on the uncorroborated testimony of a witness who is
    suffering or who has suffered from some form of mental disorder.
    It may be that the circumstances will require some caution to be
    given - not because of a particular rule of practice affecting
    witnesses suffering from some form of mental disorder but
    because a warning is necessary to put the defence case fully and
    fairly. Perhaps no more can be said than this: when the danger
    in acting upon the evidence is real and substantial and when the
    conduct of the trial and evidence as to the witness's mental
    disorder are such that the jury may not have fully perceived or
    the jury's attention may have been diverted from the danger, a
    warning should be given."
15. Again in Longman v The Queen (1989) 168 CLR 79 at 86 a distinction was drawn between the specific rule of practice then in existence requiring a warning in relation to alleged victims of sexual offences and that arising under the general law requiring a warning to be given "whenever a warning is necessary to avoid susceptible risk of miscarriage of justice arising from the circumstances of the case". Examples of situations in which the warning has been considered appropriate are set out in R v Faure (1993) 67 A Crim R
172.
16. In my view the situation of the witness D, including her level of intoxication and taking into account the discrepancies complained of by the appellant, did not call for a particular warning of the type which I have just discussed. Nevertheless I think it was appropriate to advise the jury to use care when considering her evidence and it is apparent from a reading of the learned trial judge's summing-up that he recognised this also. It is true that the warnings were given in relation to the issues of identification and intoxication. However their effect was to counsel the jury to exercise considerable care in assessing the evidence given by the witness.
17. I am confident that the exhortation to the jury to exercise care and the explanation given by the learned trial judge as to why such care should be employed were quite adequate in meeting any requirement that there may have been to caution the jury against a too ready acceptance of the evidence of the witness and I do not think it was incumbent upon the judge to say anything further on the matter.
18. It is necessary now to deal with the two grounds of appeal added by way of amendment at the hearing. The first matter is concerned with the directions as to the standard of proof. The learned trial judge said:
    "Now, as you have heard from others, and you must hear from
    me again, an accused person comes into this court with a
    presumption of innocence in his favour. The law regards him as
    innocent until his guilt has been proved to the satisfaction of
    the jury. The burden of proof of the charge lies wholly upon
    the Crown. The accused does not have to prove anything.

If he puts forward a defence, he does not have to prove it. It
    is the Crown that have to disprove it, or show that it is
    irrelevant; otherwise the Crown will not have proved its case.

Furthermore, nothing short of proof beyond reasonable doubt will
    do. It is not enough for the Crown to show a mere suspicion of
    guilt, or to show that an accused person is probably guilty. He
    is not to be convicted unless his guilt has been proved beyond
    reasonable doubt.

You will bear in mind that this is a practical court of law and
    decisions must be made in a reasonable, sensible way. But if,
    at the end of the case, you are left with a reasonable doubt
    about the guilt of an accused person, a doubt reasonably arising
    on the evidence, then you must give him the benefit of that
    doubt and find him not guilty.

So if, in what I am about to say, I speak of matters being
    proved or established to your satisfaction, or use any other
    expression relating to the proof of matters in issue, you will
    understand that I shall always mean proof or satisfaction beyond
    reasonable doubt." Towards the end of the summing-up the learned trial judge said:
    "The burden of proof, remember, lies wholly on the Crown. If
    you are left in any reasonable doubt whether the Crown has
    proved its case, the accused must have the benefit of that
    doubt. Of course, the doubt must be a reasonable one. On the
    other hand, if you do find the charges proved, it is your duty
    to say so."
19. The appellant's complaint focused upon the use of the words "Of course the doubt must be a reasonable one" in the last-quoted passage. According to the argument this part of the direction was not in accordance with the concept referred to in Green v The Queen
(1971) 126 CLR 28 at 33 that jurors themselves set the standards of what is reasonable in the circumstances and that they are not required to embark upon an objective analysis of what is reasonable. (See also R v Wilson, Tchorz and Young (1986) 42 SASR 203; R v Pahuja (1987) 49 SASR 191 and R v Gebert, Haley and Black (1992) 60 SASR 110).
20. If the direction conveyed this meaning it would have been a misdirection. Indeed in the course of the argument on appeal the respondent conceded that there had been a misdirection, albeit a minor slip which could not have given rise to a miscarriage of justice. However I am of the view that the direction does not disclose error when read in context with the other directions on the topic. No complaint is made of the directions given in the first passage which I have quoted. The emphasis in those directions was on whether the jury were left with a reasonable doubt about guilt. The passage in which the impugned direction appears begins in the same vein by relating reasonable doubt to the state of mind of the jurors. The comment that the doubt must be reasonable refers back to the state of mind adverted to in the previous sentence. I cannot think that the jurors would be side-tracked into an objective analysis of the reasonableness of the doubt in addition to their own assessment of the doubt simply by the addition of that sentence. Read in this way it is a far cry from the trial judge's invitation to the jury in Green's case to separate out any doubt and consider whether it was rational and proceeded from reason. The misdirections in the cases of Wilson and Pahuja urged the jurors to approach their task in stages, considering first whether there was a doubt and, secondly, whether any such doubt was reasonable.
21. Although I am of the view that it would have been better if the comment had not been made, I am confident that the directions, taken as a whole, would have left the jurors with a correct understanding of the requirements of proof beyond reasonable doubt and the manner in which they were to approach their task in this regard.
22. Finally it was argued that the learned trial judge failed to direct the jury as to the correct approach to circumstantial evidence. It was argued that the jury should have been told that they could not return a verdict of guilty on any count unless the circumstances were such as to be inconsistent with any reasonable hypothesis other than the guilt of the appellant. (Plomp v The Queen (1963) 110 CLR

234). Coupled with this submission was the complaint that the learned trial judge did not give sufficient instruction to the jury on the nature of circumstantial evidence and its application to the facts of the case.
23. Clearly, the case against the appellant was based on circumstantial evidence. The complainant could not identify either of the men who allegedly raped her. The inculpation of the appellant in the offences was dependant upon inferences to be drawn from proved facts, the most important being the alleged sighting of him by Miss Douglas as he came out of the door of the spare bedroom. If the jury accepted Miss Douglas in this respect, it was appropriate to take that into account along with other proved facts which might well have included the arrival of the appellant with the other aboriginal, the shouts of the complainant and the time at which they were heard and the voice of the complainant saying "Get off" when the appellant was in the vicinity of the bedroom door.
24. In the way in which the case was prosecuted and defended the central issue was the reliability or otherwise of Miss Douglas' observations, particularly in the light of her drunken condition. No doubt it was for this reason that the learned trial judge dealt in such detail with those matters relevant to the jury's assessment of this witness, including the warning which he gave as to identification. It should also be noted that neither counsel requested further directions on the topic raised by this ground of appeal.
25. However I think it was essential for the jury to be given some instruction as to the nature of circumstantial evidence and its application to the case. In particular, I think it had to be explained to the jury that the sighting of the appellant in the circumstances to which I have referred, although an important step towards a finding of guilt, was not the answer to the case in itself.
26. Unfortunately there was no such direction in the summing-up. Rather the summing-up reinforced the impression that, if the jury accepted the evidence of identification, they could reason directly to a conviction without resort to the process of reasoning which is appropriate when dealing with circumstantial evidence. This approach by the learned trial judge, which is clearly apparent from a reading of the summing-up as a whole, is summarised in his Honour's remark:
    "The question in the end is whether, in the light of all those
    considerations that I have mentioned, you can feel such
    confidence in Ms Douglas' identification of the accused, when
    she went to the third bedroom door, that you are willing to find
    it proved beyond reasonable doubt that the accused was one of
    the men who raped Ms Dwyer." In my view the essential step of determining whether an inference of guilt could be drawn from the presence of the appellant in the vicinity of the bedroom door and the other proved facts was withdrawn from the jury.
27. Different considerations might have applied if proof that the appellant was one of the offenders followed axiomatically from his presence at the bedroom door in the circumstances deposed to by Miss Douglas. But this was not the case and, however strong the prosecution case might have been if the jury accepted the evidence of Miss Dwyer, the conclusion that the appellant was one of the offenders had to be drawn by a process of reasoning which was within the sole province of the jury.
28. A further consideration should be mentioned. As the jury convicted the appellant it must be assumed that they accepted Miss Douglas' evidence as to identification. However that is not to say that all of her evidence was accepted. One of the functions of the jury was to decide whether Miss Douglas was accurate in her assertions as to what she said the complainant called out from time to time as well as in her observations of the appellant. For these reasons I think it was necessary to tell the jury that they had to decide first how much of Miss Douglas' evidence to accept and then use the material which they found established as a basis for drawing inferences. The suggestion that the jury need go no further than to accept the identification of the appellant as the man who was at the bedroom door did not allow for this analysis.
29. As the trial judge did not deal with the conceptual approach to circumstantial evidence and the effect of the summing-up was to foreclose an essential step in the process of reasoning in relation to an important item of circumstantial evidence I am of the view that the convictions must be quashed.
30. I would allow the appeal, set aside the convictions and order a new trial.

JUDGE2 MATHESON J I agree with the orders proposed by Duggan J and with his reasons.

JUDGE3 OLSSON J I agree.