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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Von Heytmanek

Details

AGLC: R v Von Heytmanek [2006] SASC 338
Case: [2006] SASC 338
Decision Date: 14 November 2006

CaseChat Overview and Summary

The appellant, Von Heytmanek, was convicted by a majority of the first count of rape and acquitted by majority of the second count of rape by a jury in the District Court. The verdicts were inconsistent, and the appellant appealed against his conviction. The grounds for appeal were that the jury might have failed to consider the doubt they held in relation to the second count when considering the first count due to a direction given by the trial judge. The nature of the direction was to consider each count separately. The appellant contended that this direction caused the jury to ignore the doubt they had on the second count when it considered count 1.

The court had to determine whether the verdicts were inconsistent and whether the "separate consideration" direction might have caused the jury to ignore the doubt it had on the second count when it considered count 1. The court found that the verdicts were not inconsistent and that the direction could not have deflected the jury from the correct approach. The court held that the direction was 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 court dismissed the appeal and held that the verdicts can be logically explained. There is no reason to apprehend that the jury 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. The court also held that it was 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.

The final order was that the appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

DAVID J (dissent)

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. I agree with the reasons of Vanstone J. I would dismiss the appeal.

Ratio Decidendi

Legal Principle Established

Established by:

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.