R v William John Davis R v William Neville Hyland Nos. SCCRM 96/80 and SCCRM 96/92 Judgment No. 5690 Number of Pages 24 Criminal Law Rape

[1996] SASC 5690

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL COX(2), PERRY(1) AND LANDER(3) JJ

CWDS
Criminal law - rape - summing up - warning - the appellants appealed against their convictions for rape of a young woman - held that a full corroboration warning was not called for and the warning to the jury that they were to subject her evidence to 'special scrutiny' coupled with other directions as to how the jury should approach her evidence were adequate in the circumstances observations as to the discretion of the trial judge as to whether to give a warning at all and if so on what terms. Evidence Act
(1929) s34i(5), referred to. R v Pahuja (1987) 49 SASR 191; Longman v R (1989) 168 CLR 79, considered.
Criminal law - practice and procedure - summing up - putting the defence case - held that it was not incumbent upon the trial judge to refer to the evidence of every witness in putting the defence case to the jury or to dilate on every alleged inconsistency in the evidence of the Crown witnesses. R v Schmahl (1965) VR 745; R v Carbone (No. 2) (1976) 14 SASR 280; R v B and D (1993) 66 A Crim R
192; R v Veverka (1978) 1 NSWLR 478, considered.
Criminal law - summing up - intoxication - the appellant, convicted of rape, complained of the trial judge's directions to the jury as to the use to be made of evidence of intoxication of both the accused and of the prosecrntrix - held that the directions given were adequate.
Criminal law - practice and procedure - juries - the trial judge called the jury back nearly five hours after they had retired and asked if they required more time - held that this inquiry, as well as remark as to the undesirability of a hung jury did not, in the context in which they were made, put undue pressure on the jury. Black v R (1993) 179 CLR 44, considered.
Criminal law - verdicts - inconsistency - the two appellants were tried on multiple counts of rape of the same victim on the same occasion - convictions on both on some counts but acquittal of one appellant on others - held that the verdicts were reasonably supportable on the evidence - observations as to the approach to be taken on appeal where verdicts do not appear to be consistent. R v Kirkman (1987) 44 SASR 591, applied.
Rape - prior acquittal - in a joint rape trial, against two accused, the trial judge admitted evidence of acts of intercourse between one of them and the prosecutrix which had been the subject of a previous charge resulting in an acquittal - held that there was no miscarriage of justice with respect to the co-accused as the evidence was subject to appropriate rulings by the trial judge as to the limited use to which it could be put - furthermore, the admission of the evidence gave no support for an application for separate trials, as the evidence would have been equally admissible in a separate trial - in any event, a failure to order separate trials is not appealable - if there has been a refusal of separate trials, the only question for the appeal court is whether at the end of the day, having regard to the course of the trial, there has been a miscarriage of justice. R v Harbach (1973) 6 SASR 427; R v Davis; R v Hyland (1996) 185 LSJS 137; R v Garrett (1977) 139 CLR 437; R v Storey (1978)140 CLR 364, considered.
Rape - unsafe and unsatisfactory verdict - appeal against conviction of rape - held that it was open to the jury to be satisfied beyond reasonable doubt that the appellants were guilty - observations as to matters to be taken into account in reviewing the evidence on appeal and the advantages held by the jury in evaluating the evidence. M v R (1994) 181 CLR 487, applied.

HRNG ADELAIDE, 17 June 1996 #DATE 19:7:1996 #ADD 28:10:1996
Counsel for appellant Davis:        Mrs M Shaw
Solicitors for appellant Davis:     J A Richards
Counsel for appellant Hyland:     Mr W Braithwaite
Solicitors for appellant Hyland:    Mr W Braithwaite
Counsel for respondent:             Ms W J Abraham
Solicitors for respondent:         DPP (SA)

ORDER
Appeals dismissed.

JUDGE1 PERRY J The appellants appeal against their convictions for rape, in the case of the appellant Davis on two counts, and in the case of the appellant Hyland on one count. The convictions followed their trial in the District Court before a judge and jury on an information which alleged four counts of rape of a young woman. It was alleged that the offences were committed on a single occasion between 21 and 24 April 1994 at Semaphore Park.
2. The first count alleged against the appellant Davis that he had vaginal sexual intercourse with the prosecutrix without her consent, and that the appellant Hyland, who was jointly charged on the same count, was guilty of aiding and abetting Davis in the commission of that offence.
3. The second count (against Hyland) alleged an act of cunnilingus; the third count (against Davis) a further act of vaginal sexual intercourse; and the fourth count (against Hyland) an act of vaginal sexual intercourse.
4. By a majority verdict, the jury convicted both appellants on the first count, and Davis on the third count. They acquitted the appellant Hyland on the other two counts.
5. The Crown case was that on the afternoon of Friday 22 April 1994, the prosecutrix, whom I will call Nicolle, then aged 17 years, was picked up at her flat by the appellants. She was acquainted with both of them, having met them before socially. They drove to a park where the appellant Hyland, whom she knew as Hawkeye, and Nicolle smoked cannabis. They then went to an hotel bar where the three of them drank alcohol. At the hotel the appellant Hyland obtained from Davis his keys to the latter's flat. Hyland and Nicolle then drove to the flat, leaving Davis at the hotel.
6. Nicolle and Hyland entered the flat and sat down in the kitchen, where they both shared some more cannabis. They then went into the bedroom where he performed three sexual acts on her, namely, digital penetration of the vagina, cunnilingus and penile vaginal intercourse.
7. At an earlier trial, Hyland had been acquitted of charges to do with those three acts. I will deal later in greater detail with the circumstances in which that acquittal was entered, and how the evidence as to those acts was dealt with at the trial now in question.
8. At all events, it appears to have been common ground that after that encounter between Hyland and Nicolle, Davis came to the flat and entered the bedroom in which Nicolle, by then naked, was still lying on the bed. Her evidence was that he was accompanied by Hyland, who put his hands on her shoulders and breasts, holding her down, while Davis had vaginal intercourse with her. It is that incident which was the subject of the first count.
9. After both men had left the bedroom, Hyland later returned and performed a further act of cunnilingus upon her, which is the subject of the second count.
10. About a half an hour later, Davis again entered the bedroom, Nicolle again being alone in the room, and against her will, committed a further act of vaginal intercourse (count 3).
11. After Davis left the bedroom following that incident, Hyland returned and had vaginal intercourse with her from behind (count 4).
12. Nicolle and Hyland then fell asleep on the bed.
13. Later two other men whom Nicolle did not know, came into the bedroom. One of them was called Tim. She left with the two men after midnight to go to another address.
14. She eventually returned to her own flat at about 7.00 am on what was by then Saturday 23 April.
15. On Monday 25 April 1994, police officers spoke to Nicolle. She was subsequently examined on the same day by a medical practitioner, Dr Jelbart, at Queen Elizabeth Hospital. Dr Jelbart observed signs of a bite, described at the trial as a "love bite" on Nicolle's neck. Her examination revealed a tear at the vaginal opening and some irritation of the surface of the cervix. Those signs were consistent with penetration but inconclusive as to the degree of force, if any, used. There was no evidence of bruising to any other part of the body.
16. On the following day, that is, 26 April, police officers questioned the appellant Hyland. He exercised his right to refuse to answer any questions, following which he was arrested. Upon his arrest, he denied that he had raped Nicolle.
17. Davis presented himself in the company of a solicitor at Port Adelaide Police Station on 2 May 1994, where he was charged after declining to answer any questions.
18. Both appellants gave evidence at the trial. Their account of the matter was consistent with the prosecution case up to the point where Hyland and Nicolle left the hotel.
19. Davis's case was that he eventually obtained a lift back to his flat where he encountered Hyland, who was naked, emerging from the bedroom. On seeing Nicolle, also naked, on the bed, he stroked her body and put his finger into her vagina. On his account of the matter, she responded in a willing fashion to these actions. He proceeded to have consensual vaginal intercourse with her.
20. He returned to the kitchen, and then went off elsewhere in a taxi and made several trips, including a detour back to his flat to retrieve his wallet. He spent the rest of the night with friends. Part of his defence was that the second act of intercourse with him alleged by Nicolle, which he said did not happen at all, could only have occurred while he was away at a friend's place.
21. Hyland's case was that at the hotel, Nicolle did nothing to resist his advances. In Davis's flat, after they had smoked a "cone" of cannabis each, she followed him into the bedroom. According to him, once there, following some preliminary petting, she undressed herself before the initial three consensual acts of intercourse occurred.
22. He returned to the kitchen, leaving her in the bedroom. Soon after, Davis arrived. Hyland was sitting naked at the kitchen table. Davis went into the toilet. Hyland did not see him go into the bedroom. However, he remembered Davis returning to the kitchen and then leaving the flat.
23. On his account of the matter, Hyland then returned to the bedroom, lay on the bed with Nicolle and went to sleep. He woke later to sounds caused by the man Tim looking for Davis. Hyland then returned to the kitchen and fell asleep there, waking at daybreak, when he dressed and left. According to him, Nicolle was still in the bedroom (on any view of the matter, that seems most unlikely). He denied having held her down while Davis had intercourse with her, and he denied any other acts of intercourse other than the initial three acts which occurred before Davis arrived.
24. I proceed to deal separately with the various grounds of appeal. In some but not all instances, both appellants advance the same ground of complaint.
Warning of the danger of acting upon the complainant's evidence (Both appellants, ground 1) 25. This ground is expressed in both notices of appeal in the same terms, namely:
    "The learned trial judge failed to adequately warn the jury as
    to the dangers of acting upon the complainant's evidence. Such
    a warning was particularly necessary in the light of:
    (a) previous accounts she gave of the events markedly at
    variance with her evidence.
    (b) her admission that she deliberately ingested cannabis for
    the purpose of becoming 'stoned' prior to the alleged rapes.
    (c) her relative youth and immaturity.
    (d) the fact that her evidence stood alone and was contradicted
    on oath by the applicant."
26. Since the enactment of s34i(5) of the Evidence Act 1929, which had the effect of abolishing the rule of law or practice relating to corroboration warnings in sexual cases, it is a matter for the discretion of the trial Judge as to whether or not any caution or warning should be given, and if so, in what terms. See, for example, the following passage in the judgment of King CJ in Pahuja:(1)
    "In many sexual cases prudence will dictate the giving of
    some appropriate caution or warning. If, since the enactment of
    s34i(5), a judge cautions or warns the jury as to their approach
    to the evidence of an alleged victim of a sexual offence, he
    does so as part of his duty to provide guidance to the jury as
    to the evidence and the facts. He is free to frame the caution
    or warning in such terms as he sees fit. It must be clear to
    the jury, either from a specific direction or at least from the
    general tenor of the summing up, that they are free to reject
    the judge's suggested approach to the evidence of the alleged
    victim or any views which he might express on such questions of
    fact. He must not convey the impression that the caution or
    warning is given as a matter of law. Subject to those
    considerations, he may give the jury a warning in the
    conventional terms or in any other terms which commend
    themselves to him."
27. That dictum was cited with approval by Deane J in Longman.(2)
28. Circumstances in which it might be thought desirable that a warning be given will vary considerably. In some cases, such as, for example, Longman, particular circumstances might compel the conclusion that the absence of any warning resulted in a miscarriage of justice. In the vast majority of cases, however, given the wide nature of the discretion to be exercised by the trial Judge, the absence of a warning, or the giving of a warning falling short of a full corroboration warning, will not give rise to appealable error.
29. In this case, the learned trial Judge summarised at some length various inconsistencies in the prosecutrix's evidence as highlighted by counsel for the appellants. He went on to say:(3)
    "Having summarised the various inconsistencies relied upon
    by the defence, I now need to give you a direction. I direct
    you that if a witness gives sworn evidence in court which is
    significantly different from statements made on earlier
    occasions, a jury needs to exercise considerable caution before
    accepting the sworn evidence of the witness.

The more significant the differences, the greater the risk that
    the sworn evidence will be unreliable. I am not saying that in
    this case the inconsistencies necessarily require you to reject
    (Nicolle's) evidence. What I do say is that you should
    carefully assess the reliability of her sworn evidence of events
    against inconsistent versions which she has given on earlier
    occasions. Are the inconsistencies explained by the fear and
    distress and exhaustion of a young female victim of sexual
    assaults of this kind, or are the inconsistencies just too
    numerous and significant to be explained in that way?

There are other reasons why you should subject (Nicolle's)
    evidence to special scrutiny. She willingly allowed herself to
    become intoxicated through alcohol and drugs and she willingly
    went with Hyland to the flat. These are all admissions that she
    made to you during her evidence. The evidence overall would
    suggest that she did not expect to meet up with Gary Page (her
    former boyfriend) during the course of that evening. She told
    her flatmate on arriving home next morning that she had been
    raped but she did not make any complaints to the police until
    later.

So, ladies and gentlemen, you should add these reasons to the
    inconsistencies when you come to assess Nicolle as a witness and
    you should only accept her evidence if, after careful scrutiny,
    you are satisfied of its truthfulness and reliability beyond
    reasonable doubt."
30. Earlier in the summing up he had given a direction as to the effect of intoxication (which he defined to include intoxication by drugs or alcohol or both) upon Nicolle's evidence. He said:(4)
    "I have said that the second element requires the
    prosecution to prove that sexual intercourse was performed
    without the female's consent. (Nicolle) says that each of the
    acts alleged in the information did take place without her
    consent. In considering her evidence in that regard, it is for
    you to decide what significance you should assign to her state
    of intoxication. To what extent, if at all, has her
    intoxication affected her memory of what really happened? To
    what extent, if at all, did her intoxication affect her judgment
    about whether or not she would engage in sexual activity? Did
    her intoxication lead her to engage willingly in sexual
    activity, albeit sexual activity which she later came to regret?
    These are questions you should answer when considering the
    second element of the offence in relation to each accused and,
    by 'offence' I mean the offence of rape."
31. Earlier again he had observed:(5) "the prosecution case really boils down to the credibility and reliability of Nicolle ..."
32. Later he said(6):
    "... the prosecution case against each accused rests entirely
    upon the evidence of Nicolle ... Counsel for both accused say
    that you should reject her evidence or, at the very least,
    entertain a reasonable doubt about its reliability and
    truthfulness. Counsel say that the weight of her evidence is
    significantly impaired, not only by the accuseds' denials but
    by other factors as well."
33. After the jury had retired following the summing up, counsel for Davis submitted that it was a case for what she described as a "full blown corroboration warning". Presumably that would have been a warning to the effect that it was not safe to convict on the uncorroborated testimony of the prosecutrix but that the jury might do so if satisfied of its truth.(7) If such a warning had been given, it would have been necessary for the learned trial Judge to have defined what was meant by corroboration, and to have given to the jury some guidance as to what might or might not constitute corroboration in the particular circumstances of the case.
34. In my opinion, the case did not call for a so called "full corroboration warning". Furthermore, I do not consider that the circumstances highlighted in the particulars of this ground of appeal, were such as to require that the learned trial Judge say more than he did.
35. As to particular (a), the inconsistencies in the previous accounts were fully summarised by the learned trial Judge. As to (b), he included in the reasons why her evidence should be subjected to "special scrutiny" the fact that she "willingly allowed herself to become intoxicated through alcohol and drugs". As to (c) and (d), her youth and immaturity, and the fact that her evidence was contradicted on oath by the appellants were matters which were obvious to the jury. In any event, he reminded the jury to take into account "the accuseds' denials" in the passage of his summing up which I have quoted in which he summarised the various matters which might be thought to have a bearing on Nicolle's reliability and truthfulness.
36. This ground of appeal with respect to both appellants must fail.
Alleged failure to put the defence case (Both appellants, ground 2) 37. In his summing up, following various directions as to questions of law, the learned trial Judge proceeded to summarise the prosecution case. This largely took the form of an extended summary of Nicolle's evidence. He then said that he would "... outline the answer or defence which each accused makes in answer to the charges".(8) In addressing that question, he gave a detailed account of the evidence of each of the appellants in turn.
38. After referring to the evidence of Davis, he said:(9)
    "In short, Davis says that he was involved in one only act
    of intercourse, that it was, or at least he believed that it
    was, with (Nicolle's) consent and that there was no-one else in
    the room at the time. He says that the second act of
    intercourse alleged against him would have occurred on
    (Nicolle's) version of events well after he rang for a taxi at
    10.34 pm and a time when he was at Enfield with his girlfriend
    Rhonda Ball. So much ladies and gentlemen for the evidence of
    Davis."

39. He followed a similar course with respect to Hyland. After summarising Hyland's evidence as the course of events that night, he said:(10)
    "In short, Hyland told you he had one only act of vaginal
    intercourse with (Nicolle) and that it was, or at least he
    believed that it was, with her consent. He did not hold her
    down while Davis had sex with her. He did not lick her vagina
    on any occasion other than the one occasion he described. There
    was not a second act of vaginal intercourse from behind. He did
    not bite her on the neck. He did not have any discussion with
    Davis about having sex with (Nicolle)."
40. The law is that the defence must be "... clearly and fully presented to the jury".(11)
41. But it is not necessary that all the arguments of the defence should be put.(12) It must be accepted, however, that significant issues of fact relevant to the defence case should be identified by the trial Judge.(13)
42. In Veverka(14) Street CJ observed, with reference to a submission that the defence case had not adequately been put to the jury:
    "It is not easy to resolve a submission of this nature remote
    from the atmosphere of the trial, and from the terms of the
    addresses of counsel. It is, however, clear from the
    authorities ... that a summing up must contain an adequate
    presentation of the defence case to enable the jury, from the
    terms of the summing up itself, to comprehend and understand
    what the defence case is."
43. Again both appellants laid stress upon the directions given by the learned trial Judge as to the jury's consideration of Nicolle's alleged previous inconsistent statements. In my opinion, the points to be made about that aspect of the matter were adequately covered in the learned trial Judge's summing up.
44. The appellant Davis complains that the learned trial Judge failed to refer to the evidence of the defence witnesses.
45. It is true that the appellant Davis called two taxi drivers, a Mr Bishop and Ms McNeil, to confirm the times on the evening in question when they picked him up and the nature of the trips he made with them. The learned trial Judge did not refer specifically to their evidence. But it was not incumbent upon him to refer to the evidence of every witness.
46. The point of their evidence is covered in the passage in the summing up to which I have already referred, which I repeat in part:
    "He (Davis) says that the second act of intercourse alleged
    against him would have occurred on (Nicolle's) version of
    events, well after he rang for a taxi at 10.34 pm and at a time
    when he was at Enfield with his girlfriend Rhonda Ball."
47. The appellant Hyland separately complains that in putting Hyland's defence, the learned trial Judge at no stage directed the jury that Hyland could be acquitted of ground 1, even if Davis was convicted of that count.
48. In my opinion, the jury were adequately instructed as to this aspect of the matter early in the summing up when the learned trial Judge observed:
    "... you will be asked for five separate verdicts: Count 1,
    Davis, guilty or not guilty? Count 1, Hyland, guilty or not
    guilty? Count 2, Hyland, guilty or not guilty? Count 3 ....
    The counts do not stand or fall together and, indeed, the
    accused do not stand or fall together."
49. In any event, given the circumstances of the incident the subject of the first count as deposed to by Nicolle, if the jury accepted her evidence beyond reasonable doubt, conviction of one and acquittal of the other accused on that count was hardly a feasible option.
Direction as to inconsistent statements (Appellant Hyland, ground 3) 50. The appellant Hyland complains: "The learned trial judge failed to adequately put to the jury the inconsistent statements made by the complainant and the bearing such inconsistencies had on the issues in each of the counts."
51. In advancing his argument that the verdict was unsafe and unsatisfactory, the appellant Davis covered much the same ground as that covered by the appellant Hyland in advancing this ground of appeal.
52. There were a number of inconsistencies in Nicolle's evidence. Perhaps the most significant were as to the number of persons who were said to have raped her in the house to which she was taken by the man she knew as Tim, and conflicting accounts as to the number of acts and offences at Davis's flat.
53. There was also an inconsistent account of attempted oral sex and an assertion that she had been locked up while she was raped in Davis's flat, in her account of the matter given to Dr Jelbart.
54. However, as I have already indicated, during the course of his summing up the learned trial Judge gave a lengthy account of the various inconsistencies relied upon by counsel. He listed the most significant of the inconsistencies and gave to the jury a clear warning that they should take them into account in assessing the reliability of Nicolle's evidence.
55. After the jury had retired, counsel for the appellant Hyland suggested that there were a number of inconsistencies to which the learned trial Judge had not expressly referred.
56. The jury were brought back and the learned trial Judge gave them a further direction in the following terms:(15)
    "The other point I wish to make to you concerns the
    inconsistencies. You will recall that I explained to you that
    you are obliged to consider the inconsistencies when we come to
    assess the reliability and truthfulness of (Nicolle's) ....
    evidence. I then listed some inconsistencies. Counsel have
    pointed out to me that I did not list all the inconsistencies
    which counsel have relied upon, and that is true, I did not do
    so. The point I want to make to you is that I did not mean, in
    giving my list of inconsistencies, to be exhaustive. You are to
    consider the inconsistencies that I listed, but you are also to
    consider the other inconsistencies which you had put to you by
    Ms Vanstone and Mr Sykes."
57. Both counsel in their addresses to the jury laid great stress upon the alleged inconsistencies in Nicolle's evidence.
58. At the end of the day, having regard to the combined effect of the addresses of counsel and the directions given by the learned trial Judge, in my opinion, this ground of appeal is not made out.
Direction as to intoxication (Appellant Hyland, ground 4) 59. The appellant Hyland complains: "The learned trial judge failed to adequately direct the jury on the evidence of intoxication of the victim and the significance of intoxication on the issues in each of the counts."
60. Early in the summing up the learned trial Judge, in giving general directions as to the manner in which they should assess the evidence of the witnesses, commented:(16)
    "If a witness was affected by alcohol or drugs at the time
    relevant events took place, that will also have a bearing on
    your assessment of his or her reliability as a witness. I will
    say more about the topic of intoxication later on in my summing
    up."
61. Later in the summing up the learned trial Judge said:(17)
    "In a moment I will outline the answer or defence which each
    accused makes in answer to the charges. Before I do so, it will
    be convenient to explain the approach you should take to
    evidence relating to intoxication. When I use the word
    'intoxication' I mean intoxication by drugs or alcohol or both.
    Both Hyland and (Nicolle) told you that they consumed spirits at
    the Leg Trap Hotel and cannabis first at the park and later in
    the kitchen of the flat at Semaphore Park. Indeed Hyland said
    he had been drinking since about 2.00 pm at the Newmarket Hotel.
    Both told you that by the time they reached the flat they were
    intoxicated. 'Stoned' was the expression that was used. Davis
    told you that, although he had not consumed any drugs, he had
    been drinking alcohol over a period of time. He told you that
    at the time he went to the flat he was intoxicated in the range
    'mild to medium'.

As I said earlier in my general remarks, with regard to the
    evidence of any witness, intoxication is relevant to your
    assessment of his or her reliability as a witness. It is common
    experience that intoxication can affect the recall of events of
    a witness. So, you will approach the evidence of each of Davis,
    Hyland and (Nicolle) with that comment in mind.

I should add one further general remark with respect to the
    intoxication of an accused person. Intoxication resulting from
    the voluntary consumption of drugs or alcohol does not of itself
    provide a defence to a criminal charge. A person must answer
    when sober for what he does when intoxicated. It is no defence
    that an accused would not have done what he did or formed the
    intention that he formed if he had not been intoxicated.

Nevertheless, that general remark needs to be qualified to some
    extent when the charge under consideration is the charge of
    rape. You will recall that, when discussing the elements of
    rape, I said that the second element concerns the state of mind
    of the female and that the third element concerns the state of
    mind of the accused. Because intoxication can affect or alter a
    person's state of mind, intoxication must be relevant to your
    consideration of the second and third elements of each charge in
    the case.     Of course some of the acts charged are disputed in their
    entirety by the accused. So you will appreciate that the second
    and third elements can only arise for consideration if the first
    element, namely that there was an intentional act of sexual
    intercourse, is proven to your satisfaction beyond reasonable
    doubt.

I have said that the second element requires the prosecution to
    prove that sexual intercourse was performed without the female's
    consent. (Nicolle) says that each of the acts alleged in the
    information did take place without her consent. In considering
    her evidence in that regard, it is for you to decide what
    significance you should assign to her state of intoxication. To
    what extent, if at all, has her intoxication affected her memory
    of what really happened? To what extent, if at all, did her
    intoxication affect her judgment about whether or not she would
    engage in sexual activity? Did her intoxication lead her to
    engage willingly in sexual activity, albeit sexual activity
    which she later came to regret? These are questions you should
    answer when considering the second element of the offence in
    relation to each accused and, by 'offence' I mean the offence of
    rape.

The third element, as I have said, requires the prosecution to
    prove that the accused either knew that the female was not
    consenting or was recklessly indifferent as to whether she was
    consenting. In relation to such act of sexual intercourse as
    you find proven, it is for you to decide what significance you
    should assign to the state of intoxication of each accused. Is
    it possible that in his intoxicated state he construed
    (Nicolle's) behaviour as consent? Is it possible that there was
    a misunderstanding in the mind of the accused resulting from the
    confused signals of an intoxicated woman operating upon the
    dulled perceptions of an intoxicated man? These are questions
    you should answer when considering the third element of the
    offence of rape in relation to each accused."
62. Counsel for the appellant Hyland complained that the law relating to intoxication was not related to the facts of Count 1, and that it was never explained that if by virtue of intoxication it was reasonably possible that Nicolle wrongly identified Hyland as holding her shoulders or mistakenly believed or remembered somebody else was holding her while Davis raped her, Hyland was entitled to an acquittal.
63. In my opinion, the latter submission is fanciful. It is common ground that Nicolle was alone with Hyland after he brought her to the house before the first incident occurred. There is no suggestion anywhere in the evidence that it was other than Davis who came later, after the initial sexual encounter between Hyland and Nicolle had taken place in the bedroom. Hyland was naked after that encounter and remained so throughout the rest of the evening, whereas the evidence was that Davis removed his pants only before having intercourse with Nicolle. On any view of the evidence, neither the man Tim nor a man said to have been in his company entered the flat until much later.
64. Whether that act of intercourse occurred in the circumstances to which Davis deposed, that is, when he was alone with Nicolle, or whether it occurred while Nicolle's shoulders were being held down by Hyland was a matter for the jury. On no view of the evidence was it a reasonable possibility that Nicolle was so intoxicated that she could have mistaken the naked Hyland for someone else with respect to the first incident involving Davis.
65. In my opinion, the summing up as to intoxication was adequate in the circumstances of the case.
Undue pressure on the jury (appellant Hyland, ground 5; appellant Davis, ground 3) 66. This ground is pleaded in the same terms by both appellants, namely: "In interrupting the deliberations of the jury, the learned trial Judge placed undue pressure on them to reach a verdict."
67. Following the summing up, the jury retired at 2.35 pm. They were brought back for some further short directions by the learned trial Judge at 2.50 pm. They retired again at 2.53 pm.
68. The learned trial Judge had no further contact with the jury until 7.28 pm. They them returned, presumably at the invitation of the learned trial Judge, who proceeded to address them in the following fashion:
    "HIS HONOUR: Ladies and gentlemen, you have had getting on
    for five hours. I am, as you would be aware, able to take a
    majority verdict on any of the counts after the expiration of
    four hours. Without telling me anything precise about voting on
    particular counts, are you able to say whether it would be
    helpful for the jury to have more time?

FOREPERSON: Yes, we would like more time.

HIS HONOUR: You ask for more time?

FOREPERSON: Yes.

HIS HONOUR: Well, I would urge you to make use of this further
    time by re-examining the opposing arguments and seeing whether
    you can come to a conclusion that represents, if not a unanimous
    view, then at least a majority view.

In the end of course you must all vote according to your oath to
    bring in a true verdict according to the evidence. If we can
    avoid a hung jury obviously that would be desirable. In the end
    I stress though you must all vote according to your conscience
    and according to your oath, to bring in just verdicts upon the
    evidence. But, certainly I am happy to give you further time.
    So would you please now retire."
69. Those remarks took two minutes. The jury retired again at 7.30 pm and without any further direction or instruction, returned at 8.45 pm when they delivered their verdicts. In each case the verdicts were by a majority.
70. It was put in support of this ground of complaint that to bring the jury back in a little less than five hours after they had been deliberating in a case involving multiple counts and two accused placed undue pressure on them "to compromise". It was submitted that rather than grant the jury "further time" to "re-examine opposing arguments" the learned trial Judge should have advised the jurors to take all the time they needed; that it was not unusual to have a jury out overnight, and the Sheriff's office would telephone their families and put in train procedures for overnight accommodation if needed.
71. In support of this ground, counsel for Hyland referred to the decision of the High Court in Black.(18) He complained that if the learned trial Judge thought it necessary to give to the jury further assistance at that stage, he should re-cover all of the points set out in the model direction given in that case.(19)
72. In my opinion, there is nothing in this ground of appeal. There was no reason to suppose that an inquiry, whether "it would be helpful for the jury to have more time", placed the jury under pressure. When the foreperson answered that question affirmatively, in then suggesting that they might make use of the further time by "re-examining the opposing arguments and seeing whether" the jury could come at least to a majority view, the learned trial Judge was doing no more than simply indicating to the jury how they might proceed from that point on.
73. In using the words "If we can avoid a hung jury obviously that would be desirable", the learned trial Judge did not unduly pressure the jury.
74. When he indicated at the end of his comments "I am happy to give you further time", he was making it plain that they were not under any pressure.
Inconsistent verdicts (Appellant Davis, ground 4; appellant Hyland ground 6) 75. With slightly different wording, each ground complains that in the circumstances of the case, Hyland's acquittal on counts 2 and 4 is inconsistent with and cannot be reconciled with the convictions recorded in the other two counts, that is, count 1 concerning Hyland and counts 1 and 3 concerning Davis.
76. In the first place, I should say that in my opinion the verdicts of guilty are well supported by the evidence.
77. Further, as was pointed out by Ms Abraham for the Crown, there are certain factors in the case which could readily be put forward to explain the verdicts.
78. There seems little doubt that Hyland was substantially intoxicated both by alcohol and drugs. On the other hand, there was no evidence that Davis had any drugs that evening, and there is nothing to suggest that he was unduly affected by liquor.
79. It is quite conceivable that the jury considered that Hyland's state of intoxication might have robbed him of the necessary intent with respect to his direct acts of intercourse with Nicolle. On the other hand, they well have considered that whatever his state of sobriety, he could hardly have been unaware of what he was doing when the jury accepted Nicolle's evidence that he held her down while Davis raped her, or that he did not know what he was about at that stage.
80. The other obvious point of distinction is that Nicolle came back to the flat with Hyland voluntarily, smoked cannabis voluntarily with him, and by direction to the jury, they were obliged to accept that there were the initial three acts of intercourse with Hyland which occurred with her consent and which preceded the incidents the subject of the charges.
81. Davis, on the other hand, was an intruder. The jury could readily have come to the view, if they otherwise accepted Nicolle's evidence, that to Davis's knowledge, she was not consenting to the acts of intercourse with him.
82. If I was to be wrong in the comments which I have made so far as to this ground of appeal, the fact remains that where there are multiple counts, juries sometimes refrain from convicting on all of the counts, even if the evidence might otherwise have justified that course: see the remarks of King CJ (with whom Olsson and O'Loughlin JJ) concurred in Kirkman:(20)
    "... juries cannot always be expected to act in accordance
    with strictly logical considerations and in accordance with the
    strict principles of the law which are explained to them, and
    courts, I think, must be very cautious about setting aside
    verdicts which are adequately supported by the evidence simply
    because a judge might find it difficult to reconcile them with
    the verdicts which had been reached by the jury with respect to
    other charges. Sometimes juries apply in favour of an accused
    what might be described as their innate sense of fairness and
    justice in place of the strict principles of law. Sometimes it
    appears to a jury that although a number of counts have been
    alleged against an accused person, and have been technically

    proved, justice is sufficiently met by convicting him of less
    than the full number. This may not be logically justifiable in
    the eyes of a judge, but I think it would be idle to close our
    eyes to the fact that it is part and parcel of the system of
    administration of justice by juries. Appellate courts therefore
    should not be too ready to jump to the conclusion that because a
    verdict of guilty cannot be reconciled as a matter of strict
    logic with a verdict of not guilty with respect to another
    count, the jury acted unreasonably in arriving at the verdict of
    guilty. A jury may be quite reasonable in arriving at the
    verdict of guilty. That verdict may be amply supported by the
    evidence. They may decide for reasons of their own, unrelated
    to the strict logic of the situation, that they are unwilling to
    arrive at a verdict of guilty on another count in the
    information."
Admission of evidence of acts of intercourse not charged (Appellant Davis, ground 6) 83. This concerns the admission by the learned trial Judge of evidence of the complainant as to the acts of intercourse with the accused Hyland which preceded the occasion the subject of the first count on the information in question, the earlier acts having been the subject of acquittals at the earlier trial of the appellant Hyland. It is said that he erred in dong so.
84. It was further contended that:(21)
    "... the fair trial of the accused Davis miscarried as a
    result of the cross-examination of the complainant by counsel
    for the accused Hyland in relation to that act of intercourse,
    during which the complainant stated that the act had occurred
    without her consent. ... the learned Judge failed to direct the
    jury that the evidence of the complainant and the accused Hyland
    in relation to that act of intercourse was inadmissible against
    the accused Davis ...the learned Judge ought to have separated
    the trial of the accused Davis from that of the accused Hyland."
85. As to the complaint that the trials ought to have been separated, that is not a proper ground of appeal. If there has been a refusal to separate the trials, the only questions for the appeal court are whether, by reason of the joint trial, there has been a miscarriage of justice, or whether improper prejudice has been created against an accused.(22)
86. Before the jury was empanelled, the learned trial Judge heard lengthy argument on two applications which were described as applications "on the voir dire", although no-one sought to call any evidence at that stage.
87. The appellant Hyland sought an order that the evidence of the earlier acts of intercourse with the accused Hyland upon which he had previously been convicted be excluded in its entirety. Both appellants sought an order that further proceedings be permanently stayed.
88. On the conclusion of the hearing as to those applications, the learned trial Judge delivered written reasons.(23)
89. He deferred the applications for a stay, but later ruled against them. However, he then ruled that it was not open to the Crown to lead any evidence which had "the clear tendency to show that the complainant did not consent to the first act of penile penetration ...".
90. I do not refer further to the reasons for judgment of the learned trial Judge as, given the ruling which he then made, the only question for this Court is whether, in the course of the trial, the way in which the evidence of the earlier acts of intercourse with the appellant was introduced into the case gave rise to a miscarriage of justice from the point of view of the trial of the appellant Davis.
91. In accordance with the ruling of the learned trial Judge, the evidence of the initial encounter between Nicolle and Hyland was led by counsel for the Crown in the following fashion (the extract of evidence which follows is from the evidence in chief of Nicolle at a point after she speaks of her presence with Hyland in the kitchen of the house but before there had been any sexual contact with her).(24)
    "A. Hawkeye asked me if I was stoned and I said 'Yes'. And he
    said that his head was spinning and he asked me if I could get
    him a glass of water. So I got him a glass of water.     Q. Did you give to him.     A. Yes.     Q. What happened then.     A. He had a couple of mouthfuls of it.     Q. What happened then.     A. And then he asked -     Q. He spoke to you, did he.     A. No.     Q. What happened then.     A. Then we went into the bedroom.     Q. What happened then; where were you in the bedroom.     A. We were - we were on the bed.     Q. What happened there. (NOT ANSWERED)     Q. Let me point your mind to a topic. Was there any sexual
    activity in the bedroom.     A. Yes.     Q. What sexual activity was there.     A. He - he was licking, he was licking my vagina and he put his
    fingers into me and he took his hand out and then he put his
    penis into me and started to have sex with me.     Q. How long did that last for.     A. About 20 minutes.     Q. What did you do after that.     A. He got up off the bed and he went into the bathroom."
92. With reference to the same incident in the course of her cross-examination by counsel for the appellant Hyland, the following passage of evidence was given:(25)
    "Q. You've given evidence of Mr Hyland going into the bedroom,
    haven't you.     A. Yes.     Q. You have given evidence of sexual intercourse taking place
    in the bedroom, haven't you.     A. Yes.     Q. Why did you say to me that you didn't have sexual
    intercourse in the bedroom.     A. Because I didn't want to go into the bedroom.     Q. You see, I put it to you that you had sexual intercourse in
    the bedroom and you went into the bedroom willingly.     A. No.     Q. So that we don't beat about the bush here, you had sexual
    intercourse with Mr Hyland in the bedroom with your consent.     A. No.     Q. Are you saying to the ladies and gentlemen of the jury that
    you did not consent to the acts of sexual intercourse with Mr
    Hyland.     A. Yes.     Q. On that occasion.     A. Yes.     Q. And I am talking about the occasion that you first described
    on first going into the bedroom.     A. Yes.     Q. And do you say you made that clear to Mr Hyland.     A. Yes.     Q. Patently clear.     A. Yes.     Q. You are lying about that, I put it to you. I put it to you
    you are lying about that and that you had sexual intercourse
    with him willingly, and obviously willingly, in the bedroom on
    that occasion.     A. No.     Q. You were completely naked with him in the bedroom.     A. Yes.     Q. He was completely naked with you in the bedroom.     A. Yes.     Q. He was extremely intoxicated, wasn't he.     A. Yes.     Q. And you were intoxicated, weren't you.     A. Yes.     Q. You see, I suggest to you that the only acts of a sexual
    nature that occurred between you and Mr Hyland occurred on that
    occasion when you first went into the bedroom with him and they
    occurred with your consent.     A. No."
93. Obviously, counsel for the appellant Hyland thought it necessary to put to Nicolle the questions which appear in that passage of transcript, as it was Hyland's case that there was only one consensual act of intercourse which occurred in the circumstances there identified.
94. During the course of argument as to this ground of appeal, reference was made to a number of authorities, including Garrett(26) and Storey.(27)
95. It is sufficient for present purposes to refer to Storey. In that case both appellants had been convicted of rape. The Crown led evidence which tended to show that the prosecutrix had been taken away from a railway station by force before the rape occurred. The defence was consent.
96. At a previous trial both accused had been acquitted on a charge of forceful abduction contrary to s62 of the Crimes Act 1958 (Vict), arising out of the same incident.
97. The High Court by a majority(28) held that the conviction could not stand. This conclusion was reached on the ground that although evidence tending to show that the accused were guilty of the offence upon which they had been acquitted was properly admitted, it was not made sufficiently clear to the jury that the previous acquittal could not be challenged and that the evidence could not be taken to prove guilt on the previous charge.
98. The admission of such evidence was held to be permissible where its exclusion would result in the balance of the witness's testimony being "so incomplete and artificial as to provoke dangerous speculation on the part of the jury".(29)
99. Mason J observed:(30)
    "Fairness to the Crown and to the accused therefore suggests
    that the totality of the prosecutrix's testimony as to the
    events occurring at the railway station should have been led at
    the second trial and that it should have been accompanied by a
    direction that the respondents' acquittal on the charge of
    abduction could not be challenged and that the evidence must be
    understood in this light. The summing up by the trial judge was
    deficient in that, although his Honour instructed the jury that
    '... you are relieved of the task of considering whether the
    accused were, or were not guilty of forcible abduction, and you
    will confine your deliberations to the various counts of rape',
    he did not give sufficient emphasis to the fact that the jury
    were bound to accept the verdict of acquittal of the charges of
    forcible abduction as the only possible view of the evidence
    relating to those charges; it was not open to them to accept a
    view of the facts inconsistent with that acquittal or to use
    such a view for any other purpose."
100. In my opinion, the proper course for the Crown to follow in this case was that which was permitted by the trial Judge and put into effect when they led Nicolle in her evidence in chief. In my opinion, neither that evidence nor the evidence led in cross-examination of her by counsel for the appellant Hyland gave rise to a miscarriage of justice from the point of view of the appellant Davis.
101. The evidence which was led was the subject of clear rulings by the learned trial Judge as to the use to which it could be put by the jury.
102. The first of them was given by the learned trial Judge shortly after Nicolle had completed her evidence. He then said:(31)
    "Ladies and gentlemen, before we break for this afternoon,
    there is a direction that I need to give you about a certain
    aspect of the evidence of Nicolle .... You will recall that her
    evidence is that when she first went into the bedroom from the
    kitchen with Hyland, she and Hyland engaged in some sexual
    activity - namely, penile intercourse. Now, that particular act
    is not the subject of any charge in this court. It was,
    however, the subject of a charge in earlier proceedings and I
    need to inform you that as a consequence of a trial of that
    charge before a judge and jury, Mr Hyland was acquitted. Now,
    the consequence of that acquittal is that you must accept that
    that act of penile intercourse was occasioned with (Nicolle's)
    consent. In other words, Mr Hyland has been tried and acquitted
    of rape with respect to that intercourse. You are obliged and I
    am obliged to give full force to that acquittal and in
    consequence, you are bound as a matter of law to treat that act
    of penile intercourse as having occurred with (Nicolle's)
    consent."
103. Then in his summing up at the end of the trial, the learned trial Judge, after referring to the initial act of intercourse with Hyland, said:(32)
    "I should remind you of the direction I gave earlier. In
    earlier proceedings Hyland was charged but acquitted of rape in
    connection with the first act of vaginal intercourse at the
    flat. So, you are required, by law, to regard that act and the
    associated act of cunnilingus and penetration of the fingers, as
    having occurred with (Nicolle's) consent."
104. In my opinion, the evidence was not, as was suggested by counsel for the appellant Davis, inadmissible as against him. Even in the context of a separate trial as against Davis, it would have been admissible to provide the background to and context of the act of intercourse said to have occurred between Davis and Nicolle after he arrived at the house. To have excluded that evidence entirely would have resulted in a situation where the jury would have been given no explanation for the presence of Nicolle naked on the bed in the bedroom. It was essential for a proper understanding of the context in which the act of rape was alleged to have occurred on the part of Davis after he arrived at the house, for sufficient evidence to be given as to the earlier incident with the appellant Hyland to explain the situation in which Nicolle was found by Davis when he entered the bedroom.
105. Neither did the admission of that evidence deprive Davis of a fair trial. In the first place, for the reasons which I have given, the evidence was admissible against Davis. In the second place, the directions of the learned trial Judge were adequate to explain to the jury how they were to deal with it. Unsafe and unsatisfactory (Appellant Davis, ground 5; appellant Hyland, ground 7)
106. The question for the Court in addressing this ground of appeal is: "... whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty."(33)
107. Furthermore:
    "... in answering that question the court must not disregard or
    discount either the consideration that the jury is the body
    entrusted with the primary responsibility of determining guilt
    or innocence, or the consideration that the jury has had the
    benefit of having seen and heard the witnesses. On the contrary
    the court must pay full regard to those considerations."(34)
108. It is incumbent upon this Court to reconsider the evidence at the trial. If having done so there emerges a doubt as to the soundness of the conviction, generally speaking, a doubt entertained by this Court must be regarded as a doubt which a jury ought to have experienced, with the result that the conviction will be quashed:
    "It is only where a jury's advantage in seeing and hearing
    the evidence is capable of resolving a doubt experienced by a
    court of criminal appeal that the court may conclude that no
    miscarriage of justice occurred. That is to say, where the
    evidence lacks credibility for reasons which are not explained
    by the manner in which it was given, a reasonable doubt
    experienced by the court is a doubt which a reasonable jury
    ought to have experienced. If the evidence, upon the record
    itself, contains discrepancies, displays inadequacies, is
    tainted or otherwise lacks probative force in such a way as to
    lead the court of criminal appeal to conclude that, even making
    full allowance for the advantages enjoyed by the jury, there is
    a significant possibility that an innocent person has been
    convicted, then the court is bound to act and to set aside a
    verdict based upon that evidence.(35) In doing so, the court is
    not substituting a trial by a court of appeal for trial by jury,
    for the ultimate question must always be whether the court
    thinks that upon the whole of the evidence it was open to the
    jury to be satisfied beyond reasonable doubt that the accused
    was guilty.(36)"(37)
109. I have already referred to various inconsistencies in the evidence given by Nicolle. Amongst the arguments advanced by counsel in support of this ground of appeal they pointed to the fact that she failed to tell the police that she gave her correct telephone number to the man Tim; her initial account to police that she had been raped by five men at the first house to which she was taken; her initial account to Dr Jelbart which was markedly different from her evidence; and an alleged inconsistent account as to the circumstances in which she received the so called "love bite" on her neck. It was also suggested that the behaviour of the complainant after the alleged rapes was inconsistent with a history of rape, and in particular, her action in afterwards sleeping with the accused Hyland for over an hour.
110. I do not pause to go through each of the arguments advanced by counsel as to this ground of appeal.
111. Most if not all of these matters were fully canvassed in lengthy addresses to the jury. In the course of her submissions to this Court, Ms Abraham for the Crown responded to the criticism levelled at Nicolle with respect to many of the matters referred to by counsel for the appellants. Again, no good purpose would be served by dwelling over the detail of those matters. Ms Abraham stressed, in my opinion correctly, that it is important in a case such as this where much depends upon the demeanour of the complainant, to allow for the advantage which the jury has in those circumstances. As Ms Abraham put it, Nicolle was giving evidence of what, on her account of the matter, were very traumatic events, and she was cross-examined at great length about the alleged prior inconsistent statements. The jury had the advantage of seeing and hearing her explanation of them. The jury was in a better position than this Court could possibly be in to form a conclusion as to whether or not the imperfections in her evidence were such as to raise a serious doubt as to her credibility.
112. In reviewing the evidence, I have borne in mind all of the criticisms levelled by the appellants. Having done so, I have reached the view that it was open to the jury to be satisfied beyond reasonable doubt that the appellants were guilty. I do not entertain a doubt which the jury's advantage in seeing and hearing the evidence was not capable of resolving.
113. In my opinion, the appeals should be dismissed.

JUDGE2 COX J In my opinion these appeals should be dismissed. I agree with the reasons of Perry J.

JUDGE3 LANDER J I agree that these appeals ought to be dismissed for the reasons given by Perry J.
1 (1987) 49 SASR 191 at 198. 2 (1989) 168 CLR 79 at 96. 3 AB 1/48. 4 AB 1/41. 5 AB 1/39. 6 AB 1/46 7 See the authorities noted in Cross on Evidence, Australian Edition, Vol 1, para 15125. 8 AB 1/39 9 AB 1/44. 10 AB 1/45. 11 R v Schmahl (1965) VR 745 per Winnecke CJ at 749. 12 Carbone (No 2) (1976) 14 SASR 280 per Bray CJ at 286. 13 R v B and D (1993) 66 A Crim R 192 per King CJ at 196 and per Perry J at 197. 14 (1978) 1 NSWLR 478 at 482. 15 AB 1/56. 16 AB 1/31. 17 AB 1/39. 18 (1993) 179 CLR 44. 19 See the joint judgment of Mason CJ, Brennan, Dawson and McHugh JJ at 51-52. 20 (1987) 44 SASR 591 at 593. 21 AB 7-8. 22 See Harbach (1973) 6 SASR 427 in the joint judgment of Bray CJ, Michell and Sangster JJ at 433, citing R v Beavan (1952) 69 WN (NSW) 140, Kerekes' Case (1953) 70 WN (NSW) 102, Grondkowski's Case (1946) 31 Cr App R 116 and R v Flaherty (1968) 3 NSWR 734. As their Honours observed, it is an "ex post facto test". 23 (1996) 185 LSJS 137. 24 AB 2/109. 25 AB 2/199. 26 (1977) 139 CLR 437. 27 (1978) 140 CLR 364. 28 Stephen, Mason, Jacobs and Aickin JJ. 29 See per Mason J as 397. 30 140 CLR at 398. 31 AB 2/216. 32 AB 1/46. 33 M v R (1994) 181 CLR 487 per Mason CJ, Deane, Dawson and Toohey JJ at 493, citing Whitehorn v The Queen (1983) 152 CLR at 686; Chamberlain v The Queen (No 2) (1984) 152 CLR at 532 and Knight v The Queen (1992) 175 CLR 495 at 504-505, 511. 34 181 CLR 493. 35 Citing Chamberlain v The Queen (No 2) (1984) 153 CLR at 618-619; Chidiac v The Queen (1991) 171 CLR 432 at 443-444. 36 Citing Chidiac v The Queen (1991) 171 CLR at 443, 451, 458 and 461-462. 37 181 CLR 494-495.