R v Wallace

Case [2008] SASC 47

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v WALLACE

[2008] SASC 47

Judgment of The Court of Criminal Appeal

(The Honourable Justice Duggan, The Honourable Justice Bleby and The Honourable Justice Vanstone)

29 February 2008

CRIMINAL LAW - EVIDENCE - SIMILAR FACTS

JOINT TRIAL OF SEVERAL COUNTS

Appellant charged with rape (9 counts) and false imprisonment (3 counts) - 3 complainants and 3 separate occasions - issue whether acts were consensual - whether miscarriage of justice occurred because all counts were heard together - whether evidence led on counts relating to second and third complainants were cross-admissible - admissibility of similar fact evidence where nature of sexual activity is in issue - whether evidence revealed a pattern of behaviour and underlying unity - objective improbability of events having occurred other than as alleged by prosecution - appeal dismissed.

CRIMINAL LAW - EVIDENCE - COMPLAINTS - ADMISSIBILITY OF DETAILS AND FACT OF COMPLAINT

First and second complainants were sisters - evidence given by both sisters of a complaint made by second complainant to first complainant - differing accounts of complaint - whether second complainant's evidence of complaint was admissible - whether complaint recent - whether inconsistency of evidence relevant - permission to appeal refused. 

Evidence of "complaint" led from independent witness - inadmissible - led by arrangement between counsel - adequacy of trial Judge's directions - whether miscarriage of justice - permission to appeal refused.

Criminal Law Consolidation Act 1935 (SA) s 278, referred to.
R v Collie, Kranz and Lovegrove (1991) 56 SASR 302; R v Smith (1988) 71 SASR 543; De Jesus v The Queen (1986) 61 ALJR 1; Hoch v The Queen (1988) 165 CLR 292; R v Boardman [1975] AC 421; Pfennig v The Queen (1995) 182 CLR 461; Phillips v The Queen (2006) 225 CLR 303; Goldsmith v Sandilands (2002) 76 ALJR 1024; R v Freeman [1980] VR 1; R v Mustafa (2005) 91 SASR 62; Makin v The Attorney-Genearl (NSW) [1984] AC 57; Thompson v The Queen (1989) 169 CLR 1; Martin v Osborne (1936) 55 CLR 367, applied.
R v Liddy (2002) 81 SASR 22; Smith v The Queen (2001) 206 CLR 650; Perry v The Queen (1982) 150 CLR 580; Sutton v The Queen (1984) 152 CLR 528; R v Lobban (2000) 77 SASR 24; R v Gallagher (1986) 41 SASR 73; Breen v The Queen (1976) 180 CLR 233, considered.

WORDS AND PHRASES CONSIDERED/DEFINED

"similar fact evidence"
"recent complaint"

R v WALLACE
[2008] SASC 47

Court of Criminal Appeal:       Duggan, Bleby and Vanstone JJ

  1. DUGGAN J.         I would refuse permission to appeal on grounds 6 and 7 and dismiss the appeal on all other grounds.

  2. I agree with the reasons prepared by Bleby J.

  3. BLEBY J. After a trial by jury the appellant was convicted of two counts of false imprisonment and five counts of rape against two different complainants.…

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Details
AGLC
R v Wallace [2008] SASC 47
Case
[2008] SASC 47
Decision Date

CaseChat Overview and Summary

In the matter of R v Wallace, the appellant challenged his convictions for a series of serious sexual offences. The appellant was found guilty of charges related to three complainants, C1, C2, and C3. The crux of the appeal was whether the trial judge erred in several respects, including the handling of similar fact evidence and the decision not to order separate trials for certain charges. The South Australian Court of Criminal Appeal was tasked with reviewing these issues.

The primary legal issues involved the admissibility of similar fact evidence and the necessity of separate trials for certain charges. Specifically, the court needed to determine if the evidence from one complainant was properly admissible in relation to charges against another complainant. Additionally, the court examined whether the trial judge should have ordered separate trials for the charges involving different complainants.

The court's reasoning focused on the principles governing the admissibility of similar fact evidence and the circumstances under which separate trials should be ordered. The court concluded that the trial judge correctly admitted the evidence from C1 and C2 in relation to the charges against C3, as the evidence was relevant and did not unfairly prejudice the appellant. The court also found that the trial judge did not err in not ordering separate trials, as the charges were properly joined, and the evidence was cross-admissible. The court upheld the conviction, finding that the jury's verdicts were supported by the evidence.

No further grounds of appeal were pressed, and the court dismissed the appeal in its entirety. The judges agreed that the trial judge's decisions were correct and that the appellant's convictions were properly upheld.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

To address this ground, it is necessary to say some more about the evidence led by the prosecution concerning the incidents involving each of the complainants. Although the appellant was found not guilty of the charges in relation to C1, it is necessary to consider whether the evidence led in support of those charges was also cross-admissible on the charges in respect of C3. Evidence concerning counts 1 - 3 (C1) C1 was aged 38 at the time. On the evening in question she was working as a prostitute opposite a hotel on a suburban arterial road. She was standing on the footpath and was approached by the appellant. During the course of discussion she made it known that she was a prostitute, and the appellant invited her back to his lodgings. She explained that she had no money and asked if he could help her out. He agreed to do so, she then understanding that she was likely to be paid for sexual favours. The appellant hailed a taxi to go to his house. On the way they stopped at a bank ATM so he could withdraw some money. C1 started to feel uncomfortable in the taxi and asked the driver to stop to let her out. The appellant instructed the driver to keep going. When they arrived at the appellant’s house they went to his bedroom. There was a discussion about money and the appellant gave C1 $100. There was further non-threatening conversation between them while sitting on the bed during the course of which C1 provided the appellant with her mobile phone number. The appellant then got up and in an aggressive manner demanded that C1 take her clothes off. The appellant alluded, in a threatening fashion, to some knives that were in the room. C1 panicked and screamed at the appellant that he had better not hurt her or touch her in any way. She said she only wanted to spend time with him and that she would like to call a taxi. The appellant responded that he had work to go to in the morning and that he would not let her out until then. Notwithstanding that, after some further conversation they both undressed and had consensual sexual intercourse, the appellant wearing a condom supplied by C1. C1 described the intercourse as “a really rough style of rubber style of sex” and causing her pain. She complained, but it made no difference. After some time he suddenly withdrew, quickly removed the condom and reinserted his penis into her vagina. C1 told him to get off, as she was not consenting to sex without a condom and he was causing pain. She tried to escape from under him but was unable to. He withdrew after ejaculation. C1 asked for a towel and to go to the toilet. Wearing the towel, she was escorted by the appellant to the toilet, some distance down a hallway. He remained in an adjoining cubicle while C1 was in the other. He then escorted her back to the bedroom. They lay on the bed together for some time. The appellant allowed C1 to make a phone call, and shortly after aggressively demanded intercourse again. She said she wanted to leave, but he repeated that he was not letting her out until the morning.

Decision

Reasons for decision

DUGGAN J BLEBY J
There was evidence on which the jury could properly convict. The acceptance or otherwise of the evidence of C2 and C3 was a matter for the jury in the light of other evidence properly admitted. The Judge gave adequate directions on the evaluation of the evidence of witnesses, particularly that of the complainants, and directed the jury that if they considered C2 and C3 were not telling the truth in some respects they would have to consider what implications that had for their evidence about being imprisoned and raped. There was nothing in the evidence or in the Judge’s summing up which suggested that the verdicts of guilty that were returned were or could be unreasonable. This ground of appeal therefore fails.Conclusion No other grounds of appeal were pressed at the hearing. It follows that I would refuse permission to appeal on grounds 6 and 7 and that I would dismiss the appeal on all other grounds. VANSTONE J: I have had the advantage of reading the reasons in draft of Bleby J. I agree with Bleby J that the application for leave to appeal on grounds 6 and 7 should be refused and the appeal itself should be dismissed. In respect of grounds 1, 6 and 7 my reasons for so finding follow. As to grounds 3 and 5, I am content to rely on the reasons expressed by Bleby J. Grounds 2 and 4 were not pursued, leave to appeal having earlier been refused. The relevant facts of the matter are set out in the reasons of Bleby J and it is unnecessary for me to repeat them. I shall use the same nomenclature in relation to the witnesses in the trial.Ground 1: Failure to order separate trials The first ground of appeal asserts that the learned trial judge erred in failing to order a separate trial in relation to counts 8 to 12, being the charges arising from the evidence of C3. There was no contest that the charges were properly joined. Rather, the application for an order for a separate trial for the C3 counts was made pursuant to s 278(2) Criminal Law Consolidation Act 1935 (SA). The general principle under consideration seems to have been refined where the charges are of a sexual nature. I understand the applicable principle to be as follows. Where an Information contains charges of a sexual nature which are based on the evidence of two or more complainants and where the evidence of one complainant is not admissible in respect of the other charges, then the need to prevent the accused suffering impermissible prejudice generally (if not universally) requires a direction for separate trials: De Jesus v The Queen (1986) 61 ALJR 1, per Gibbs CJ at 3, per Mason and Deane JJ at 6, per Brennan J at 7; Hoch v The Queen (1988) 165 CLR 292 per Mason CJ, Wilson and Gaudron JJ at 294, per Brennan and Dawson JJ at 298. It was accepted in this case that unless the charges concerned with C1 and C2 on the one hand and C3 on the other were cross-admissible, an order separating the C3 charges should have been made. The exclusionary rule is that “evidence that reveals that the accused is a person of bad character is not admissible if it proves no more than that he or she has a general disposition or propensity to commit crime or crime of a particular kind”: Pfennig v The Queen (1995) 182 CLR 461 per McHugh J at 512, citing Makin v The Attorney-General (NSW) [1894] AC 57.

Ratio Decidendi

Legal Principle Established

Established by: DUGGAN J, BLEBY J

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