R v Wait - [2011] SASCFC 91

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 91
Court 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 16^th day of March 2010 and the 17^th 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…

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 Wait

Details

AGLC: R v Wait [2011] SASCFC 91
Case: [2011] SASCFC 91
Decision Date: 19 August 2011

CaseChat Overview and Summary

The Crown sought permission to appeal against a directed acquittal in the Supreme Court of South Australia. The respondent, R, had been acquitted of rape by the trial judge, who directed the jury to find him not guilty. It was not disputed that sexual intercourse had occurred between the respondent and the complainant. The central dispute at trial concerned whether the complainant had consented to the intercourse and, if not, whether the respondent knew she was not consenting or was recklessly indifferent to her consent. The complainant's ability to recall the events was significantly impaired due to her consumption of alcohol and drugs, meaning there was no direct evidence of her consent or the respondent's state of mind. The appeal therefore turned on whether the available circumstantial evidence was sufficient to establish a prima facie case requiring determination by the jury.

The legal issues before the Full Court of the Supreme Court of South Australia were whether the trial judge had erred in withdrawing the case from the jury and whether there was a sufficient body of circumstantial evidence to allow the matter to proceed to a verdict. Specifically, the court had to consider if the circumstantial evidence was capable of proving the elements of rape in issue, namely consent and the respondent's knowledge or recklessness regarding consent, to a standard that satisfied the test for a case to answer.

The Full Court, comprising Nyland, Anderson and David JJ, allowed the Crown's appeal. The court reasoned that the trial judge had erred in directing an acquittal. It found that there was a sufficient body of circumstantial evidence that went to the proof of the disputed elements of the charge, satisfying the test established in cases such as *R v Bilick and Starke*. While acknowledging the respondent's argument that certain inferences, such as the deliberate drugging of the complainant, might be considered a "long bow," the court concluded that other circumstantial evidence, when considered collectively, clearly established a case to answer. Consequently, permission to appeal was granted, the acquittal was quashed, and a retrial was ordered.

Orders

Orders of the court

I would grant permission to appeal, allow the appeal, quash the acquittal and order a retrial.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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