SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v WANNAN
Reasons for Decision of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Besanko and The Honourable Justice Anderson)
25 May 2006
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES INVOLVING MISCARRIAGE - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES INVOLVING MISCARRIAGE - MISDIRECTION AND NON-DIRECTION
Appeal against sentence - whether the trial Judge erred in admitting evidence of recent complaint in a rape trial - whether the trial Judge erred in directing the jury as to the evidence of recent complaint - whether the trial Judge erred in directing the jury as to the appellent's consumption of alcohol - whether the trial Judge erred in directing the jury as to consent - whether the conviction is unsafe and unsatisfactory - consideration of s 34I(1) of the Evidence Act 1929 - consideration of the directions of the trial Judge - no error of law - appeal dismissed.
Evidence Act 1929 (SA) s 34I(1), referred to.
Bull v The Queen (2000) 201 CLR 443, discussed.
R v Szejnoga (1998) 199 LSJS 97; R v Mustafa (2005) 91 SASR 62; Allingham (1989) 42 A Crim R 175; The Queen v De Angelis (1979) 20 SASR 288; The Queen v Byczko (1977) 16 SASR 506; The Queen v Gallagher (1986) 41 SASR 73, considered.
R v WANNAN
[2006] SASC 151Court of Criminal Appeal: Doyle CJ, Besanko and Anderson JJ
DOYLE CJ: Mr Wannan appeals against a conviction on a charge of rape. He was found guilty by a jury after a trial in the District Court. His grounds of appeal raise a challenge to the admissibility of certain evidence given by the complainant, a challenge to some of the directions that the Judge gave to the jury, and a complaint that taken as a whole the summing up might have caused the jury to misapprehend the case, giving rise to a miscarriage of justice, and a further complaint that the verdict is unsafe and unsatisfactory.
Grounds of appeal
The first ground of appeal is a challenge to the correctness of a decision by the Judge to admit evidence from the complainant, exercising the discretion conferred by s 34I(1) of the Evidence Act 1929 (SA). The submission is that the evidence should not have been admitted.
Ground 2 challenges the directions that the Judge gave to the jury about the use of that evidence.
Ground 3 challenges the correctness of a decision to admit evidence from the complainant of a conversation that she had with a witness shortly after the alleged offence. The conversation was admitted on the basis that it was a recent complaint. The witness was also permitted to give his version…
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Details
- AGLC
- R v Wannan [2006] SASC 151
- Case
- [2006] SASC 151
- Decision Date
CaseChat Overview and Summary
In the case of R v Wannan, the respondent, Mr. Wannan, appealed against his conviction and sentence for sexual assault. The appellant argued that the trial Judge made several errors in the handling of evidence and jury directions. The Court of Criminal Appeal considered the appeal and found no error of law, dismissing the appeal. The prosecution case was that Mr. Wannan performed an act of cunnilingus on the complainant while she was asleep and therefore incapable of giving consent. The defence argued that the complainant's account was not credible, and that there was no evidence of a recent complaint.
The Court of Criminal Appeal examined the grounds of appeal and concluded that the trial Judge did not err in admitting evidence of the conversation between the complainant and her boyfriend, Mr. Noon, as a recent complaint. The Court found that the conversation, while not entirely spontaneous, still demonstrated consistency and could potentially enhance the complainant's credibility. The Court also found that the trial Judge's directions to the jury on the recent complaint were adequate, and that there were no errors in the directions regarding the complainant's consumption of alcohol, consent, or the evidence of the recent complaint.
The Court of Criminal Appeal ultimately found that the jury, acting reasonably, could be satisfied of guilt beyond reasonable doubt based on the evidence presented. The appeal was dismissed, and Mr. Wannan's conviction and sentence were upheld. The Court agreed with the Chief Justice's reasons for judgment, with the exception of two grounds of appeal relating to the recent complaint, which were allowed. However, these grounds of appeal did not impact the overall outcome of the case, and the conviction and sentence were maintained.
The Court of Criminal Appeal examined the grounds of appeal and concluded that the trial Judge did not err in admitting evidence of the conversation between the complainant and her boyfriend, Mr. Noon, as a recent complaint. The Court found that the conversation, while not entirely spontaneous, still demonstrated consistency and could potentially enhance the complainant's credibility. The Court also found that the trial Judge's directions to the jury on the recent complaint were adequate, and that there were no errors in the directions regarding the complainant's consumption of alcohol, consent, or the evidence of the recent complaint.
The Court of Criminal Appeal ultimately found that the jury, acting reasonably, could be satisfied of guilt beyond reasonable doubt based on the evidence presented. The appeal was dismissed, and Mr. Wannan's conviction and sentence were upheld. The Court agreed with the Chief Justice's reasons for judgment, with the exception of two grounds of appeal relating to the recent complaint, which were allowed. However, these grounds of appeal did not impact the overall outcome of the case, and the conviction and sentence were maintained.
Orders
Orders of the court
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Background
Background to the litigation
A single Judge refused leave to appeal on this ground. Mr Wannan asked that the application for leave be considered by the Court of Criminal Appeal.The facts On 10 April 2004 the complainant and her boyfriend Mr Noon went to a race meeting with Mr Wannan and his partner. The complainant had not met Mr Wannan before. Each member of the group consumed a fair amount of alcohol during the day at the race meeting. The group returned to Adelaide by bus. The complainant vomited once or twice during the return journey. During the course of the day an arrangement was made that Mr Noon and the complainant would stay for the night at Mr Wannan’s home. Mr Wannan and Mr Noon were friendly. Mr Noon did not think it was safe for him to drive, having regard to the amount of alcohol that he had drunk. The group went to a hotel, not far from Mr Wannan’s home, and continued drinking. The complainant continued to feel unwell, and vomited two or three times. She asked Mr Noon if she could go home. She wanted to go to sleep. As Mr Wannan’s home was close to the hotel, he offered to take her to his home and he did so. He took her by car. The complainant was sufficiently affected by alcohol for her to need some help from Mr Wannan when walking. Mr Wannan then returned to the hotel, leaving the complainant at his home. She said that she removed all of her clothing except for her knickers, and then went to sleep in the bedroom that he had indicated to her as available for her use. Evidence from other witnesses established that Mr Wannan returned to the hotel, but a short time later left again. The complainant’s evidence was that she was asleep, and that the room was dark. She became aware that the bedcovers were no longer over her, she was lying on her back and her knickers were half way down her thighs, and she realised that someone was licking her vagina. She did not know who was licking her. She said she was “still very sort of dizzy”. After a time that she described as about 20 or 30 seconds she realised that this was not her boyfriend Mr Noon, and so she sat up, pulled the bed covers over herself, and began crying. She saw Mr Wannan stand up and do his trousers up. He said, “Don’t tell the others”. About then Mr Noon came to the house. He came into the bedroom. The complainant said she was “crying and shaking”. Mr Noon asked her a couple of times “What did he do to you”, but she did not answer. Then he said “Did he touch you”, and she said “Yes”. There was then an angry sounding conversation between Mr Noon and Mr Wannan in a room adjacent to the bedroom. Mr Noon then returned to the bedroom and had a further conversation with the complainant. Mr Noon telephoned the police. They came to the house not long after.The Prosecution case and the Defence case The Prosecution case was that the complainant was asleep at the time when Mr Wannan began to perform the act of cunnilingus on the complainant. As the complainant was asleep she was not capable of consenting. On the Prosecution case the appellant woke while the act of cunnilingus was in progress. At first she thought the act was being performed by Mr Noon. When she realised it was being performed by someone else, she sat up, and Mr Wannan then stopped.
Evidence
Evidence Before The Court
She was also cross-examined about what she told a police officer as follows:Q.I suggested to you earlier one thing that you told a police officer, that is that you had been asleep for a while when you woke up because Darrin had returned. You remember those questions put to you earlier.A.Yes.Q.I suggest also that you told that police officer that the person in the room with you was fully clothed.A.Yes.Q.And that he took your underwear off.A.Yes.Q.And you agree you told her that.A.Yes.Q.And you told her that you presumed he was your partner.A.Yes.Q.And that the oral sex lasted for only 30 seconds.A.What I can remember of it after waking up, yes.Q.No, I’m suggesting that that’s what you told the police officer.A.Yes.Q.And that when you sat up – and this is what you’ve told the police officer – you told her that Mr Wannan had said ‘I thought you liked it’.A.I don’t remember that at all.Q.Are you denying you said that.A.I don’t remember.Q.And that he had said ‘Don’t tell anyone’.A.He said ‘Don’t tell anyone’.Q.I put to you earlier that you had actually said to Mr Wannan ‘We can’t do this’, and I think your answer was you didn’t remember saying that.A.I don’t remember saying or hearing that.Q.I suggest to you that as soon as you said that Mr Wannan stopped immediately and did his belt up and left the room.A.I remember sitting up and working out that it wasn’t Darrin and –Q.Can I put it this way: as soon as you said you worked it out it wasn’t Darrin Mr Wannan got up and left, didn’t he.A.I don’t – I think he stayed there for a little bit.Q.I suggest to you that he got up and left just about immediately after you’d sat up.A.No, I don’t think that –Q.How long did he stay there.A.Not very long.Q.What was he doing.A.He did up his belt and then I think that’s when he walked out.Q.So he stayed long enough to do up his belt and then he left the room.A.Yes.Mr Noon’s Evidence Mr Noon gave evidence regarding the alleged offence. In relation to the complainant, Mr Noon gave the following evidence:Q. What did you see when you turned the light on.A. I saw S on the bed basically curled up in a ball and she was crying.Q. How was she crying.A.Basically she looked like she was frightened, like you’d – probably as you’d see a small child.Q.What was it about her that causes you to say that.A.Just she was like sobbing, was crying like, as a small child would cry. Not just outright crying, she was basically staring into nothing. She had a very blank look on her and she was just curled up in a ball with her knees up towards her and holding her knees and just sobbing.Q.Did you say anything to her.A.I just said ‘What’s going on here?’ basically referring to – because Brenton was just behind me at this stage.Q.You just said Brenton was behind you at this stage.A.He had come in behind me at that stage, because from the front door to the bedroom was probably only about ten metres, five metres, not very far – five metres.Q.So he is back in the house.A.Yes, back in the house.Q.At what point did you become aware that he was there behind you.A.I just knew he was behind me, just felt his presence there.Q.So you asked that question, did you get a response straightaway from S.A.The question was basically directed to S and him, himself, and I looked at both of them, I didn’t get a response from S so I looked at him and he just – he basically just shrugged his shoulders, so I asked again, I said ‘What the hell is going on here?’.Q.Then was happened from there.A.He just basically shrugged his shoulders again and looked down at her and said ‘Why don’t you ask her?’.Q.What did you do.A.I was basically – at this stage I was just very confused at what was going on so I – then I just said, you know, I said ‘What’s happened here? What’s going on?’.Q.Directed at.A.Directed at both of them in the same way. And he actually looked at her again and said ‘Why don’t you tell him, S? Why don’t you tell him what’s going on?’.Q.Then how did the conversation unfold from there.A.I just basically said ‘Right, out here’ and I basically just sort of shrugged him a little bit and said ‘We are going out to the lounge room to discuss this’ so we started to – proceeded to the lounge room which is the room just adjacent to where I just said ‘What the hell is going on here? What are you doing?’ in that way.Q.Before we get into the detail of what was said in the lounge room again, between you and the accused, up until this point whilst you had been in that bedroom area had S said anything to you.A.No, S was – she hadn’t said a word to me, she was just basically just sobbing and was curled up in a ball. Q.Once you were in the lounge room you just told us you asked that conversion [sic], did the accused respond.A.I just said ‘What have you done?’ Or words to that effect and his response was ‘I stuffed up, okay, I stuffed up’.Q.His tone of voice or his manner and demeanour when he said that.A.He looked down at the ground, he didn’t look at me directly in the eye, just looked down at the ground, he just said another time ‘I stuffed up, all right, I stuffed up’.Q.Did you respond to that.A.I just said the words ‘Did you - ’Q.Say the words you used.A.I just said ‘Did you fuck her?’.Q.Did he respond to that.A.He just kept saying ‘I stuffed up, all right, I stuffed up’.Q.Did he say anything to you about her role in all of this, that is S’s.A.He didn’t really say that, the only words – I basically just argued with him saying ‘How could you do this to me?’ and I really wasn’t getting much response out of him at all, he was just saying ‘Okay I stuffed up, all right, I stuffed up’.Q.How long do you think all of this went on for.A.Probably about five, it could have been about five minutes because the reason why I wasn’t getting much response out of him was because his phone was ringing, his mobile was ringing constantly and he was constantly turning it off.Q.Did you say something about that to him at some point.A.After about the third ring I said ‘Why don’t you answer it’ because I knew it was Charmaine on the line, I said ‘Why don’t you answer it, be a man and tell her what you’ve done, get her home here and tell her what you’ve done’.Q.Did you see him then answer the telephone.A.He then answered telephone, yes.Q.Did you hear what he said over the telephone.A.He said ‘You’d better get back here, something’s happened’.Q.Did Charmaine come back to the house.A.It was in minutes. Because it was so sudden, she was back within minutes, I’d say she was probably on her way back because she was back within a minute or two minutes after that.Q.By the time Charmaine arrived where were you, were you still in the lounge room or somewhere else.A.Still in the lounge room, it was just basically – I can’t remember the exact context of the conversation but it wasn’t really much of a conversation it was more ‘How could you do this to me’ and again he was proceeding like ‘I stuffed up’.Q.When Charmaine arrived did she come into the lounge room where you and the accused were.A.Yes, she did.Q.Did you hear the accused say anything to her.A.When she walked in – she was with S at this time as well – as she walked in she just said ‘What’s happened?’.Q.Did the accused respond.A.He just said ‘I’ve stuffed up, I’ve been fooling around with S’.Q.During all of this time had you returned to the bedroom at any stage.A.At this stage they started arguing between each other, she actually said – I won’t get into that but at this stage they started arguing actually at this point, so I just through this was the time to go and see S, see what was happening, or see how she was.Q.So you went back to the bedroom.A.I went directly back to the bedroom, yes.Q.Where was S at that time.A.She was still in the same position on the bed.Q.Was she still crying.A.Still sobbing, still curled up in a ball, still looking blankly into space.Q.Was there any difference between how she appeared by this stage and how you had seen her initially.A.No, she was exactly the same.Q.Did you speak to S then about what had happened.A.When I entered the bedroom I closed the door and I just said ‘What’s going on here S, what’s going on?’Q.What did she say.A.I just didn’t really get a response. I do remember her saying ‘I want to go home’ that’s the only word – the first words that actually came out was ‘I want to go home’ and that first question I just said ‘Did you fuck him or what? What’s going on here?’ and then basically she just kept saying ‘I want to go home’, sobbing saying ‘I want to go home’ and then I just realised that I wasn’t getting much out of her and I just didn’t really realise what was going on and I said ‘Did he touch you? Did he touch you?’ And she just said ‘I thought it was you’ and then that’s when I realised something was not right and I just said ‘So did you consent?’ And she just said ‘No, I thought it was you’ and I just – that’s when I proceeded to say ‘I think – this is a police matter, we’ll have to call the police about this’.Q.How did she react to that.A.She just said ‘I want to go home’.Q.Did you call the police.A.We did eventually, yes, we did.Q.At this point or some later point.A.No, not at that point. At that point I had to bring S her senses at this stage because I wasn’t getting much out of her, she just looked shocked and I just said ‘Look, S, we have to leave here and ring the police’, so eventually she did agree and said ‘Okay’, to the point where I think I said ‘We have to get out of this house and call the police’, and she said ‘Yes, okay we’ll call the police’ and left.
Decision
Reasons for decision
I have considered the case as a whole. The summing up contained no error of law, and was fair to the accused. There was nothing inherently improbable or unlikely about the Prosecution case. Indeed, circumstances do suggest that the complainant would have been unlikely to have consented to the advances of Mr Wannan, under the circumstances. The Defence case was an arguable one. There were aspects of the evidence that might have caused the jury to have a reasonable doubt. But, on the evidence before them, it was open to the jury, acting reasonably, to be satisfied of guilt beyond reasonable doubt.Conclusion For those reasons I would dismiss the appeal. BESANKO J: In my opinion, this appeal should be dismissed. I agree with the reasons for judgment of the Chief Justice and there is nothing that I can usefully add. ANDERSON J: In this matter I have read the draft reasons of Doyle CJ. His Honour sets out the grounds of appeal and deals with each ground in turn. I agree with his Honour’s conclusions and with his reasons in relation to all of the grounds of appeal except Grounds 3 and 6. I would allow the appeal on these grounds. Grounds 3 and 6 of the amended notice of appeal relate to the “complaint”. Ground 3 complains of the admission into evidence of a conversation between the complainant and her boyfriend, Mr Noon, shortly after the alleged offence. The trial Judge admitted evidence of the conversation because he considered it to be a recent complaint. Ground 6 complains that the directions given by the trial Judge on the “recent complaint” were deficient. In particular:(a) how the “complaint” if accepted was capable of being used as evidence of consistency;(b) by failing to identify the issues that arose on the evidence that suggested that there was no “recent complaint”. The Chief Justice deals with the relevant sequence of events in his summary of the facts. I will set out some of the evidence of Mr Noon as it appears in the appeal books because I think that this evidence supports the appellant’s submissions. The appellant argued that the conversation between the complainant and Mr Noon did not amount to evidence of a recent complaint for reasons set out in the written outline of argument presented by the appellant. The appellant argued that:1There was a lack of spontaneity; 2The responses by the complainant to direct questions from Mr Noon were accompanied by inducements held out by Mr Noon;3The complainant did not voluntarily identify exactly what it was that had occurred;4There was an inconsistency between the complainant’s statements in her declaration with that of Mr Noon as against the account given to her boyfriend. The appellant argued that there was no consistency which could be demonstrated by the relevant statements. It was submitted that the complainant’s words to Mr Noon after the event could not bolster her credibility and therefore, the evidence was not admissible. The respondent argued that the threshold test was whether the words of the complainant had the capacity to show consistency and therefore, the potential to enhance her credit. It was argued that it was then a question for the jury as to whether in fact the complaint did enhance her credit.
Ratio Decidendi
Legal Principle Established
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