R v Wait
[2011] SASCFC 91
•19 August 2011
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v WAIT
[2011] SASCFC 91
Judgment of The Court of Criminal Appeal
(The Honourable Justice Nyland, The Honourable Justice Anderson and The Honourable Justice David)
19 August 2011
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT - CONSENT - GENERALLY
CRIMINAL LAW - PROCEDURE - VERDICT - POWER OF JUDGE TO DIRECT VERDICT
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST ACQUITTAL
Crown sought permission to appeal against directed acquittal – trial judge directed jury to find respondent not guilty of rape – not disputed that respondent had sexual intercourse with complainant – the issues at trial were whether the complainant consented and whether the respondent knew she was not consenting or was recklessly indifferent – complainant could not remember intercourse occurring due to consumption of alcohol and drugs – no direct evidence as to complainant’s consent or respondent's state of mind – whether the circumstantial evidence was sufficient to constitute a case to answer.
Held: appeal allowed – there was a sufficient body of circumstantial evidence going to the proof of the elements of the charge that were in issue – the test in R v Bilick and Starke was satisfied – permission to appeal granted – appeal allowed – acquittal quashed – retrial ordered.
Criminal Law Consolidation Act 1935 (SA) s 46, s 47, s 48(1), s 352(1)(ab), s 353(2a), referred to.
R v Bilick and Starke (1984) 36 SASR 321, applied.
R v WAIT
[2011] SASCFC 91Court of Criminal Appeal: Nyland, Anderson and David JJ
NYLAND J: I agree with the reasons of David J. I would grant permission to appeal, allow the appeal, quash the acquittal and order a re-trial.
ANDERSON J: I would grant permission to appeal, allow the appeal, quash the acquittal and order a re-trial for the reasons given by David J.
DAVID J: The respondent in this matter was charged on Information with the offence of rape. I set out the Information:
PETER JOHN WAIT
is charged with the following offence
Statement of Offence
Rape. (Section 48(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Peter John Wait between the 16th day of March 2010 and the 17th day of March 2010 at Davoren Park, knowingly engaged in sexual intercourse with [the complainant], without her consent.
At the end of the prosecution case, the trial Judge directed the jury as a matter of law to return a verdict of not guilty. They duly did so. The Director of Public Prosecutions (“the applicant”) now seeks permission to appeal against that directed verdict of acquittal. The power to appeal in those circumstances is governed by s 352(1)(ab) of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”), which I set out in full:
(1)Appeals lie to the Full Court as follows:
…
(ab) if a person is tried on information and acquitted, the Director of Public Prosecutions may, with the permission of the Full Court, appeal against the acquittal on any ground—
(i)if the trial was by judge alone; or
(ii)if the trial was by jury and the judge directed the jury to acquit the person;
If the applicant’s appeal is successful, this Court has the power to quash the acquittal and order a new trial.[1]
[1] CLCA s 353(2a)(b).
At trial the prosecution alleged that the complainant, a 26 year old female, was raped by the respondent whilst she was either asleep or in such a state of intoxication due to alcohol and drugs that she did not freely consent to the act of intercourse. At trial there was no dispute that the respondent had vaginal sexual intercourse with the complainant either late in the evening of 16 March 2010 or in the early hours of the morning of the next day. There was also no dispute that the complainant had consumed a substantial amount of alcohol and ingested drugs known as flunitrazepam and 7-aminoflunitrazepam currently marketed under the name Hypnodorm – formerly known as Rohypnol. There was also no dispute that an act of intercourse took place on an oval near the Para West Adult Campus at Davoren Park.
The issue at trial was whether there was enough evidence to go to a jury on two elements of the charge of rape. Firstly, that the complainant did not consent and secondly, whether the respondent knew that she was not consenting or was recklessly indifferent to whether or not she was consenting. Those elements were sought to be proved by the prosecution at trial by way of circumstantial evidence. The complainant, due to the effects of alcohol and the drugs she ingested, could not remember the act of intercourse and the immediate surrounding circumstances. However, the prosecution argued that there was a body of circumstantial evidence that satisfied the test as to whether there was a case to answer in relation to both elements.
The trial Judge disagreed and directed the jury to bring in a verdict of not guilty. The applicant now argues that the Judge was in error.
Trial – the prosecution case
The complainant gave evidence that she and the respondent met for the first time at a hotel on the morning of 16 March 2010. She admitted that she was attracted to him and they exchanged phone numbers.
She left the hotel at about lunchtime and went to her home at Davoren Park. For the rest of the afternoon she stayed at home drinking with some friends. She is the mother of four young children and at the time two of those children were living with her. Whilst at home in addition to drinking alcohol she was also smoking marijuana. She gave evidence that at around about 6.00 pm she rang the respondent and they planned to meet back at the hotel and from there he would come back to her house with a friend of his.
She duly met him at the hotel and he returned to her house with one of his friends. She gave evidence that whilst at her house the respondent made a number of sexual advances to her including touching her under her skirt, trying to take her into her bedroom, kissing her neck and other such advances. She gave evidence that she resisted him. Although she was attracted to him the reason she resisted him was that she had commenced her period and was using a tampon. For that reason that she did not want to be touched in a sexual way. She also said in evidence that she was sure that she told the respondent that she did not like being touched while she was menstruating.
She freely admitted that otherwise she would have been interested in some type of physical activity that evening. It is to be noted that evidence was also called by the prosecution from the complainant’s cousin, who at the time was 16 years of age. He saw the complainant and the respondent kissing each other in the laundry. That was to be contrasted to the evidence of the complainant who said she rejected all of the respondent’s sexual advances whilst at the house.
The complainant then gave evidence that she left her house with the respondent and his friend between 9.00 pm and 10.00 pm. They intended to go to a party at Blight Street, Davoren Park. When she arrived at that house, it was obvious there was no party and she refused to go inside as she observed she was the only female present. Whilst outside the house she heard the respondent have an argument with his friend about who was going to have sexual intercourse with her. The respondent’s friend came out from the house and made advances to her but she rejected them. The respondent then returned and offered her a green pill which he claimed was ecstasy. He produced it from his backpack. The complainant gave evidence that she did not take it, as she recognised it as a “downer” or a pill that would have a sedative effect. She had no memory of taking the pill, but she knew that it was not ecstasy.
From that stage onwards she did not have a clear memory of events. She could only remember “flashes”. She said in evidence that she could remember being told by the respondent and his friend that they would walk her home. She was feeling very unwell. She remembers reaching the Para West Adult Campus, climbing over a fence and stepping over a chair. Her next clear memory was waking up in the Lyell McEwin Hospital. Before that, she had a fleeting memory of being naked in a lady’s home and being given a nightie to wear. She had no memory of removing any clothing or her tampon, and no memory of having sexual intercourse. She had not consented to having sexual intercourse with anyone.
The prosecution also called Ms Sophia Hamitov, a retired pensioner who lives alone at Davoren Park. The Para West Adult Campus is not far from where she lives. Ms Hamitov said that in the early hours of the morning of 17 March 2010 she was woken up by a knock at the door and she saw the complainant sitting on her verandah. The complainant said “Help me, I’ve been raped”. She said the complainant was naked except for a white bra. Ms Hamitov gave evidence that the complainant was very distressed and crying. Ms Hamitov took the complainant inside and got her a nightie. The complainant told Ms Hamitov that her clothes were on the oval and she was missing her mobile phone. Ms Hamitov then called the police and an ambulance. The complainant was taken to the Lyell McEwin Hospital.
During the subsequent police investigation a police officer, charged with the investigation of the crime, located items admittedly belonging to the complainant on the oval adjacent to the Para West Adult Campus. These were collected at about 7.35am that morning. Included among those items were the complainant’s skirt, top, underwear, thongs and a used tampon.
Earlier that morning, at approximately 1.33am, the police apprehended the respondent. They arrested him for rape which he immediately denied. When it was put to him that he had been arrested for rape, he replied, “This is bullshit. She asked for it.” On being searched at the Elizabeth Police Station, a mobile phone was found in his possession. It was an agreed fact at trial that that phone belonged to the complainant. Also found in his possession were 114 green pills. These were later analysed and found to be flunitrazepam.
Blood samples were taken from the complainant, as were swabs from her vagina. Sperm was detected which, by way of DNA profile, matched the DNA profile obtained from the blood of the respondent. It was an agreed fact at trial that vaginal sexual intercourse between the complainant and the respondent took place between 11.00 pm on 16 March 2010 and 1.00 am on 17 March 2010 on the oval at the Para West Adult Campus and this was done by the insertion of the respondent’s penis into the vagina of the complainant.
It was also agreed at trial that during the external examination of the complainant there were no signs of a tampon but there was blood present in her upper vagina, consistent with menstruation.
Blood samples were also taken from the respondent. The results of the blood analysis from both the complainant and the respondent were presented to the jury through the evidence of a forensic scientist, Joanna Rositano and a professor of pharmacology, Jason White. The analysis of the blood of the complainant indicated the presence of cannabis use. It also indicated the presence of one microgram of flunitrazepam and two micrograms of 7‑aminoflunitrazpeam. There were no other drugs detected in the blood. No flunitrazepam was found in the blood sample from the respondent. On an analysis of the green pills found in the possession of the respondent, as I have indicated, they were found to be flunitrazepam.
Professor White gave evidence that there was alcohol present in a blood sample taken from the complainant at 5.30 am on 17 March 2010. At that stage, the amount of alcohol in the complainant’s system was 0.1 grams of alcohol per 100 millilitres of blood. By a back calculation, he was of the opinion that at 12.40 am the complainant’s blood alcohol reading would have been between 0.148 and 0.197 grams of alcohol per 100 millilitres of blood. Having been informed that there was one microgram of flunitrazepam and two micrograms of 7‑aminoflunitrazepam in the complainant’s blood, Professor White gave an opinion as to the effects of those drugs. He said that those drugs produce a range of effects including sedation, which is the main therapeutic use. In fact, high doses will produce a comatose state. He also said that the drugs can produce irrational thinking and generally influence a person’s thought processes. They can also produce disinhibited behaviour. He said that in combination with alcohol the effects of the drugs would be enhanced. In other words, they would increase the effects of alcohol and may cause a person to fall asleep and may cause impaired memory. He gave further evidence that the effects of cannabis use at the same time might have caused some additional impairing effect but that would have been small compared to the effects of flunitrazepam.
At the conclusion of the prosecution case the trial Judge invited defence counsel to make an application that there was no case to answer. Upon hearing submissions from counsel he then directed the jury to bring in a verdict of not guilty. It is against that directed verdict that the applicant now seeks permission to appeal.
Appeal
It is important to set out the relevant parts of the CLCA dealing with the offence of rape. Sections 46, 47 and 48 provide:
46—Consent to sexual activity
(1)In this section—
sexual activity includes sexual intercourse.
(2)For the purposes of this Division, a person consents to sexual activity if the person freely and voluntarily agrees to the sexual activity.
(3)Without limiting subsection (2), a person is taken not to freely and voluntarily agree to sexual activity if—
(a) the person agrees because of—
(i)the application of force or an express or implied threat of the application of force or a fear of the application of force to the person or to some other person; or
(ii)an express or implied threat to degrade, humiliate, disgrace or harass the person or some other person; or
(b) the person is unlawfully detained at the time of the activity; or
(c) the activity occurs while the person is asleep or unconscious; or
(d) the activity occurs while the person is intoxicated (whether by alcohol or any other substance or combination of substances) to the point of being incapable of freely and voluntarily agreeing to the activity; or
(e) the activity occurs while the person is affected by a physical, mental or intellectual condition or impairment such that the person is incapable of freely and voluntarily agreeing; or
(f) the person is unable to understand the nature of the activity; or
(g) the person agrees to engage in the activity with a person under a mistaken belief as to the identity of that person; or
(h) the person is mistaken about the nature of the activity.
Example—
A person is taken not to freely and voluntarily agree to sexual activity if the person agrees to engage in the activity under the mistaken belief that the activity is necessary for the purpose of medical diagnosis, investigation or treatment, or for the purpose of hygiene.
47—Reckless indifference
For the purposes of this Division, a person is recklessly indifferent to the fact that another person does not consent to an act, or has withdrawn consent to an act, if he or she—
(a) is aware of the possibility that the other person might not be consenting to the act, or has withdrawn consent to the act, but decides to proceed regardless of that possibility; or
(b) is aware of the possibility that the other person might not be consenting to the act, or has withdrawn consent to the act, but fails to take reasonable steps to ascertain whether the other person does in fact consent, or has in fact withdrawn consent, to the act before deciding to proceed; or
(c) does not give any thought as to whether or not the other person is consenting to the act, or has withdrawn consent to the act before deciding to proceed.
48—Rape
(1)A person (the offender) is guilty of the offence of rape if he or she engages, or continues to engage, in sexual intercourse with another person who—
(a) does not consent to engaging in the sexual intercourse; or
(b) has withdrawn consent to the sexual intercourse,
and the offender knows, or is recklessly indifferent to, the fact that the other person does not so consent or has so withdrawn consent (as the case may be).
Maximum penalty: Imprisonment for life.
(2)[Not applicable].
(3) [Not applicable].
In the present case there was no dispute that the first element, namely that an act of sexual intercourse took place, had been proved. On the prosecution case there was no direct evidence that the complainant did not consent to engaging in the sexual intercourse and further, there was no direct evidence that the “offender” knew or was recklessly indifferent to the fact that the complainant did not so consent. The prosecution sought to prove those elements by way of circumstantial evidence. The reason that there was no direct evidence is obvious. Due to the ingestion of drugs and alcohol, the complainant said she could not remember what happened. It is to be noted that there was no direct evidence that she was asleep when intercourse took place and there was no direct evidence that she was so drunk that she could not appreciate her situation to the point of being incapable of freely and voluntarily agreeing to the activity. The prosecution argues that the circumstantial evidence presented in the case was capable of proving that she did not consent to sexual intercourse or, at the very least, she was asleep or was in such a state of intoxication that she was incapable of consenting.
The test of whether there is a case to answer at the end of a prosecution case when an element of the charge is sought to be proved by circumstantial evidence is clearly set out in the decision of King CJ in R v Bilick and Starke where his Honour said:[2]
The same test is to be applied to deciding a submission of no case to answer in a case depending upon circumstantial evidence as in a case depending upon direct evidence, although the manner of its application will be different. The question to be answered by the trial judge is whether there is evidence with respect to every element of the offence charged which, if accepted, could prove that element beyond reasonable doubt. Where there is direct evidence of the actus reus and that evidence is capable of supporting an inference of mens rea, there is a case to answer except in the extreme case, as perhaps of testimony which is manifestly self-contradictory or the product of a disorderly mind, envisaged by the Privy Council, in which the direct “evidence” is so incredible as to amount to no evidence. Where the case is a circumstantial or partly circumstantial case and therefore depends on inferences, the question may be expanded so that it becomes: On the assumption that all the evidence of primary fact considered at its strongest from the point of view of the case for the prosecution, is accurate, and on the further assumption that all inferences most favourable to the prosecution which are reasonably open, are drawn, is the evidence capable of producing in the mind of a reasonable person satisfaction, beyond reasonable doubt, of the guilt of the accused? That, as it seems to me, was the question which the learned trial Judge was required to answer in deciding on the submission of no case to answer.
[2] (1984) 36 SASR 321 at 337.
Mr Kimber SC, for the applicant, argued that the test of a case to answer was satisfied and the matter should not have been withdrawn from the jury. He put forward the following matters as items of circumstantial evidence on the assumption that all evidence of primary fact is considered at its strongest from the point of view of the prosecution, and is accurate. In other words, adopting the test in Bilick referred to above.
In relation to the state of mind of the complainant, he referred to the following matters:
1The evidence that the complainant had previously resisted the advances of the respondent.
2Her evidence that she held strong views about engaging in sexual activity whilst menstruating.
3That throughout the evening although advances were made to her she did not consent to sexual intercourse.
4That she was “pretty sure” that she told the respondent about how she felt about being touched while she was on her period.[3]
5She made an immediate complaint and was in a state of distress. What she said to Ms Hamitov is, of course, not evidence of the truth but, quite correctly, Mr Kimber puts it as a piece of circumstantial evidence going to the question of her lack of consent.
Mr Kimber puts that a combination of those matters with the evidence of Professor White as to the effects of alcohol and flunitrazepam is a strong circumstantial case going to the fact that she was asleep or unconscious when the act of sexual intercourse took place. At the very least those circumstances lead to the conclusion that the complainant was so intoxicated to the point of being incapable of freely and voluntarily agreeing to the activity.
[3] T44.26-28; T69.28-30.
Concerning the further element that needs to be proved, namely the respondent’s knowledge of lack of consent or his reckless indifference as to whether she was consenting or not, Mr Kimber points to the same series of circumstances. However, he adds the following factors:
1That the respondent left her naked on the oval when he knew where she lived and had earlier offered to walk her home.
2He took her mobile phone.
3He offered her a drug in the nature of a sedative which although she says she did not take, blood analysis showed that it was somehow administered to her. Mr Kimber submitted that it could be inferred that because it had been rejected by her previously, the respondent provided her with that drug for the purposes of sedating her.
Mr Kimber argues that the test set out in Bilick has been clearly made out in relation to both elements and the trial Judge was in error in directing no case to answer.
Mr Mead SC, for the respondent, argues that there was no direct evidence in relation to the two elements in issue. He puts that earlier resistance to any suggestion of sexual activity has to be regarded in the light of the complainant’s condition and the general lack of consistency in her behaviour. In other words, there is no reason to infer that because she resisted on one occasion, she necessarily would have resisted at the time intercourse took place. He also put that it is a long bow to draw that just because the respondent had a number of pills containing flunitrazepam in his possession that he therefore knew of its effect and fed one of those pills to the complainant for the purposes of sedating her to the point that she would consent to sexual intercourse. He put that the inferences relied upon did not go far enough and the trial Judge was correct in withdrawing the matter from the jury.
Conclusion
In my view the trial Judge erred when he withdrew the matter from the jury at the conclusion of the prosecution case.
I find there was a sufficient body of circumstantial evidence going to the proof of the elements of the charge that were in issue to satisfy the test set out in Bilick. I need only refer to the arguments of the applicant as set out above.
I come to that conclusion even accepting the argument of Mr Mead that it was a long bow to infer that the respondent deliberately supplied the complainant with a pill to sedate her for the purposes of rape. The other pieces of circumstantial evidence clearly establish a case to answer on those elements of the charge that were in issue.
I would grant permission to appeal, allow the appeal, quash the acquittal and order a retrial.
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