R v Von Heytmanek - [2006] SASC 338

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v VON HEYTMANEK
[2006] SASC 338
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice Vanstone and The Honourable Justice David)
14 November 2006
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT
Appellant charged with two counts of rape arising from one incident – found guilty of one and acquitted of other – whether verdicts inconsistent – whether “separate consideration” direction might have caused the jury to ignore the doubt it had on the second count when it considered count 1.

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION
Nature and purpose of "separate consideration" direction - direction could not have deflected jury from correct approach - verdicts not inconsistent. Appeal dismissed.
Mackenzie v The Queen (1996) 190 CLR 348, applied.
R v Mitchell (NSWCCA, 5 April 1995, unreported); KRM v The Queen (2001) 206 CLR 221, discussed.
Benbolt v The Queen (1993) 60 SASR 7; R v Matthews (2005) 91 SASR 196; R v Liddy (2002) 81 SASR 22; R v B, P [2006] SASC 229, considered.

R v VON HEYTMANEK
[2006] SASC 338
Court of Criminal Appeal: Sulan, Vanstone and David JJ

SULAN J: I agree with the reasons of Vanstone J. I would dismiss the appeal.
VANSTONE J:
Introduction
The appellant appeared in the District Court upon an information charging him with two counts of rape and one count of common assault. He pleaded guilty to the assault and was tried before a jury upon the rape charges. He was convicted by majority of the first count and acquitted by majority of the second. He appeals against the conviction, asserting that the verdicts were inconsistent. He further complains of a direction given to the jury by the trial judge requiring it to consider each count separately. He contends that in obedience of that direction, the jury might have failed to bring to account in their consideration of count 1, the doubt that they held in relation to count 2.
Background
The complainant in respect of all three charges was a woman with whom the appellant had previously shared a relationship. I shall refer to her as “Renee”. The charges arose from one incident that took place at Renee’s flat. According to Renee, on the day preceding the incident she had received various telephone messages from the appellant, which she had chosen to ignore. On the day of the incident she returned to her home to find the appellant there. When she arrived he opened the door to her, wearing boxer shorts. She said he was very angry and his anger was in response to her having started to see another man and failing to return his calls. He yelled at her and started shoving and pushing her. They ended up in the bathroom where he committed against her the assault to which he pleaded guilty. That consisted of forcing her against the wall with his hands placed around her throat. She said that she was pinned up against the basin and mirror in the bathroom as the appellant tried to insert his penis into her vagina. She pleaded with him to stop. Then he pushed her down onto the floor and succeeded in having vaginal intercourse with her until he ejaculated.
They left the bathroom and went to the lounge and dining area where they further argued. She said that the appellant demanded oral sex but she, crying, pushed him away. She said they ended up in the spare bedroom where he again demanded oral sex, succeeding in putting the tip of his penis into her mouth whilst she was pinned on a futon. She said he then tried to have anal sex but could not penetrate her, she thought because he was not fully erect. Then he inserted his penis into her vagina. It was that act which was particularised as being count 2, vaginal sexual intercourse.
The appellant did not give or call evidence upon the trial.
Evidence was presented to the jury of an interview which he had with police on the same day as the incident. His response to the allegations was that he had “roughish kind of sex” with Renee in the bathroom, consisting of “fuck[ing] her from behind and on top …”, which was consensual. He had ejaculated. He denied that she was crying or screaming. He said that afterwards they were in the bedroom and he had consensual anal sex with her, she then being face down on the bed. Again he said he ejaculated. He denied having either oral or vaginal sex with her in the bedroom.
As can be seen, the three counts on the information were part of one incident which seems to have taken much less than an hour.
Consistency of verdicts
Counsel for the appellant submitted that in circumstances where the incident was fairly brief and described in clear terms by the complainant, there was no room for the jury to bring in different verdicts on the two counts.
Having regard to the nature of the incident as described by Renee in evidence and the appellant in interview, I agree that there was little or no room for doubting that Renee’s attitude to having intercourse with the appellant was other than constant throughout. The appellant then argued that if that were the case, the verdicts were not capable of being reconciled. For that reason it was said that the verdict on count 1 was unsafe and unsatisfactory.
In Mackenzie v The Queen (1996) 190 CLR 348, 366, Gaudron, Gummow and Kirby JJ set out a number of general propositions emerging from the cases dealing with suggested inconsistency between jury verdicts. Their Honours’ third proposition was that the test is one of “logic and reasonableness”. Having noted, at 367, the “respect for the function which the law assigns to juries”, their Honours said:
… if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted.
It was further said (at 368) that only where the different verdicts represented an “affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury’s duty”, or, more commonly, confusion or a misunderstanding of their function, and where intervention was necessary to prevent a possible injustice, should the questioned conviction be set aside.
With these principles in mind I turn back to the facts of the matter. If it were the case that the jury’s verdict on count 2 was only explicable on the basis of a perceived change in Renee’s attitude to having sexual intercourse with the appellant, or with his perception of her attitude, (that is, the second and third elements of rape) then I would consider that there would be apparent inconsistency. That is because on her account, there was no room for any such view of the evidence. However, in my view it is open to conclude that the acquittal on count 2 was referable to a doubt as to the act of intercourse itself.
There was a striking difference between the respective accounts of the events in the bedroom. That was to be contrasted with the very similar description (apart from the issue of consent) of what happened in the bathroom and living room. The jury might have found it surprising that the appellant was prepared to admit to oral and anal intercourse in the bedroom, yet insisted that vaginal intercourse had not occurred. Renee’s evidence was to entirely the opposite effect.
It is true that the learned trial judge directed the jury that it could convict on the basis of either vaginal intercourse on the basis of Renee’s evidence, or anal intercourse on the basis of the appellant’s admission. He told the jury:
As a general rule, the particulars of a charged offence are provided by the prosecution to enable an accused to understand what it is that is alleged against him. The particulars are there to enable the accused to understand the nature of the offence alleged. The particulars are not legal elements of the offence. Therefore, the prosecution does not have to prove the type of sexual intercourse; that is, whether it was anal or vaginal. What the prosecution must prove, and it must prove beyond reasonable doubt, is that an act of sexual intercourse occurred in the bedroom.
I mention that in case you think that there is any room for doubt about the type of sexual intercourse that occurred in the bedroom. That is a matter for you.
But I do not consider that this direction advances the appellant’s argument. As it happens, I consider that it was, in the circumstances of this case, incorrect. Whilst it is true that particulars in an information are not generally material, and need not generally be proved, I think this case falls outside that general rule. This was not a case where the prosecution had declined to specify in the particulars what type of sexual intercourse was alleged. Had the complainant always expressed doubt about the type of intercourse actually performed, then the case could have gone to the jury in the way in which the Judge left it. Rather, this was a case where Renee’s evidence of vaginal intercourse was firm and the appellant’s admission in the interview to having performed oral and anal intercourse represented an admission of what was, in effect, a new and different transaction. (See Benbolt v The Queen (1993) 60 SASR 7; R v Matthews [2005] SASC 91, (2005) 91 SASR 196.)
But more importantly in the context of this argument, I consider that the appellant’s frank admission to anal and oral intercourse and denial of vaginal intercourse could have left the jury in some doubt as to the accuracy of the complainant’s evidence of count 2. Bearing in mind that the prosecutor’s opening clearly stipulated that the act in question for count 2 was vaginal sexual intercourse and further, that the jury had a copy of the indictment which particularised such an act, in my mind it is not at all illogical to think that the jury were left with a doubt as to the type of intercourse which occurred and, despite the Judge’s direction that either type of intercourse would do, felt unable to reach a conclusion as to the first element. Bearing in mind that the jury were also told, as I shall outline, that each count had to be viewed separately, it might be that the lack of supporting evidence for Renee’s version of count 2 was not made up for by their satisfaction of her honesty and reliability in relation to count 1.
I remain unpersuaded that there is any inconsistency between the verdicts.
Separate consideration
I turn then to examine what has become known as the “separate consideration direction” and the appellant’s complaint that it might have caused the jury to ignore any doubt they held about count 2 when they considered count 1. The impugned direction was as follows:
(a)So there remains two counts for you to consider and both of those counts are alleged offences of rape. Each of those two counts charges a separate offence, and each of them you must treat separately upon its merits. When ultimately you return your verdicts you will be asked in relation to each of those counts whether you find the accused guilty or not guilty of that particular charge. It does not follow that because the accused is charged with two offences, simply because you may be satisfied of his guilt of one of them, that he is therefore guilty of the other. In the same way it does not follow that, because he has pleaded guilty to common assault, he is guilty of one or both offences of rape. The charges, ladies and gentlemen do not stand or fall together. You must consider each of the charges separately.
(b)If separate charges are tried on the one information – and that is what has happened in this trial – it is essential that you take special care to assess whether the guilt of the accused on any one count maybe established only by considering the evidence which is offered by the prosecution in relation to that particular charge, and not the evidence in relation to the information as a whole, except to the extent that such evidence indicates the general relevant background, context and sequence of events.
(c)So, ladies and gentlemen, you may find the accused guilty of one count and not guilty of the other count of rape, or guilty of both counts, or not guilty of either count. You must consider each of the two offences separately by looking at the evidence offered in support of each of the two charges of rape.
At this point it is useful to recall the purpose for which a separate consideration direction is given. I start with a negative proposition. It is not given to advise the jury as to the use to which they can put bodies of evidence. Instruction as to the permissible and impermissible uses of particular evidence is a distinct topic. Such directions require some particularity. Rather, it is given to ensure that in a case where there is more than one charge, the jury considers the elements of each and pays particular regard to the evidence going to prove those elements; as opposed to any process of extrapolating from an acceptance of the thrust of the prosecution case or from a general acceptance of the honesty of the main prosecution witness.
The same point was made by Gleeson CJ (Cole and Sperling JJ agreeing) in R v Mitchell (NSWCCA, 5 April 1995, unreported). There the facts of the case were unusual, because the defence took no objection to charges arising from the allegations of two sisters against the appellant being heard together in the one trial, even though the judge ruled that the evidence of one child was not admissible on the counts concerning the other child. The appellant complained that the judge failed to direct the jury that it could not use the evidence of one complainant in proof of the counts concerning the other. The prosecution did not challenge the admissibility ruling on appeal, but sought to save the convictions by relying on the judge’s directions that separate verdicts were required in respect of each charge and that the jury should consider the charges separately. The Chief Justice rejected that submission, holding that the separate consideration direction did not have the effect of quarantining the two bodies of evidence. His Honour said:
The directions given about considering the charges separately and returning separate verdicts are standard directions given in any case where there is more than one charge against an accused person. They are not inconsistent with the possibility that in reaching their separate verdicts the jury may consider the totality of the evidence in the case as relevant to each charge.
It is true that in KRM v The Queen (2001) 206 CLR 221 at 234 McHugh J spoke of the separate consideration direction being “ordinarily sufficient to avoid miscarriages of justice” in cases where a number of offences alleged by the same complainant are tried in one information and no propensity warning is given. His Honour found support for that in the fact that in many such cases juries convict of some charges and acquit of others. In my view the risk of propensity reasoning in such cases is minimal and I think the judgment of McHugh J at [34]-[38] indicates as much. Anyway, that the separate consideration direction may have such an incidental effect does not detract from the fact that the purpose of the direction is quite a separate one.
Part of the direction under review in this case went further than the usual separate consideration direction. The directions in paragraphs (a) and (c) were unexceptional and do not support the appellant’s argument. And the judge told the jury that they could have regard to the evidence of background, context and sequence of events, and to the evidence of the assault. But paragraph (b) instructed them not to use the evidence on one count in respect of the other in assessing “whether the guilt of the accused” was established.
I consider that this direction was incorrect in that it was too favourable to the appellant. The fact was that the entirety of the evidence was relevant and admissible and available to be used by the jury in respect of both charges. There had been no suggestion by defence counsel to the contrary, nor could one properly have been made.
Nevertheless I do not think the jury could have been deflected from its task by the direction, except to the extent that it would have caused the jury to be more than usually cautious. In a case such as the present where the entire incident was very brief, it could hardly be supposed that the jury would not draw their conclusions about Renee’s evidence by examining the whole of what she said on all topics. It would be quite unrealistic and inimical to their task to do otherwise. I do not consider that the jury would have understood the judge’s direction as requiring them to take an artificial view of the matter. Indeed the departure in paragraph (b) of the judge’s direction from the correct directions in paragraph (a) and (c) was so subtle that it is unlikely that the jury treated it as going much further than the directions which preceded and followed it. To the extent that it did, I think it could only have advantaged the appellant.
Nor do I consider that this was a case calling for a direction to the effect that a doubt about Renee’s credit on one count could be brought to account in respect of the other count. The idea that such a direction is always required was rejected in R v Liddy [2002] SASC 19, (2002) 81 SASR 22, 66-73 and in R v B, P [2006] SASC 229. Where the counts arise from one incident the argument for such a direction is all the weaker. Accordingly, I think it inconceivable that whatever doubt was entertained with respect to count 2 was not given such weight as was called for when count 1 was determined.
Conclusion
In summary, the jury were told to consider each count separately. That they did so is demonstrated by the fact that there were different verdicts on each count. The verdicts can be logically explained. There is no reason to apprehend that they undertook an unrealistic exercise of attempting to divide the complainant’s credibility as between the two counts. The direction did not literally require them to do that and the facts of the matter as a whole do not disclose any indication that they must have done so.
For these reasons I would dismiss the appeal.
DAVID J. I agree with the reasons of Vanstone J. I would dismiss the appeal.