Stanley William Hacket v R No. SCCRM93/381 Judgment No. 4340 Number of Pages 15 Criminal Law and Procedure

[1993] SASC 4340

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL KING CJ(1), MILLHOUSE(2) AND OLSSON(3) JJ

CWDS
Criminal law and procedure - appeal against conviction - rape and assault occasioning actual bodily harm - consideration of Criminal Law Consolidation Acts 278 - the two offences did not form part of a series of offences of the same or similar character - two of fences of different legal character and not a unified sequence of events - charges should have been subject of separate trials. Criminal Law Consolidation Acts 278. DeJesus v R (1986) 68 ALR 1 and The Queen v Heidt (1976) 14 SASR 574, discussed.

HRNG ADELAIDE, 6 December 1993 #DATE 22:12:1993
Counsel for appellant:     Ms M E Shaw
Solicitors for appellant:    McGee and Associates
Counsel for respondent:     Mr J J Doyle QC
Solicitors for respondent: Director of Public Prosecutions

ORDER
Appeal allowed; retrial ordered in respect of assault charge.

JUDGE1 KING CJ The appellant has appealed to this Court against convictions following a trial by judge and jury in the District Court for a crime of rape and a crime of assault occasioning actual bodily harm. 2. The events giving rise to the charges followed a party in a caravan in a caravan park at Port Noarlunga. All the witnesses to the critical events were intoxicated and in consequence the events were perceived through an alcoholic haze. This accounts for some conflicting inconsistent and even bizarre versions given by the witnesses but there are also indications of conscious distortion or suppression of the truth. 3. The alleged victim is a married woman who was living with her husband in a caravan at the caravan park. The party began in their caravan but subsequently transferred to a nearby caravan occupied by a Mick Hawthorn. Ten people attended the party although not all remained throughout the evening. The appellant arrived with a woman Joanne with whom he was friendly and Joanne's sister Wendy. During the evening a ditty sung by the appellant offended Joanne's sister. She reprimanded the appellant and was in turn reprimanded by Hawthorn. Joanne and Wendy then left. The appellant offered to escort Joanne home but would not do so if Wendy accompanied them. In the result Joanne and Wendy went off together and the appellant remained at the party. Joanne gave evidence that while she was at the party the alleged victim, to whom I shall refer by her christian name Teresa, was seated next to a Wayne Hutton and placed her hand on his groin. Teresa was apparently not accustomed to drink and there is no doubt that she was considerably under the influence of liquor. 4. The toilets were some few caravan blocks away from Hawthorn's caravan and access to them could only be obtained by means of a key. Each caravan was provided with a key. Teresa gave evidence that she went to the toilet during the evening and while doing so was accosted by the appellant. He made a sexual advance and she rejected him. The appellant in his evidence denied that any such incident occurred. 5. At some stage Teresa left the caravan to go to her own caravan stating that she was tired. At that stage her husband, whose christian name is Lee, Mick Hawthorn and the appellant remained in the caravan. At some stage the appellant borrowed Hawthorn's keys stating that he wished to go to the toilet and left the caravan. When he did not return to the caravan Hawthorn and Lee set off to find him. Hawthorn went towards the toilet block and Lee went to his own caravan. In the caravan he observed his wife under a quilt on the bed and the appellant on the floor at the side of the bed. 6. It is common ground that while the appellant and Teresa were together in the caravan Teresa's jumper, which fitted snugly around her neck, was removed, her jeans were removed and a bodysuit which she wore underneath was rolled up or pushed up around her waist thereby exposing her genitals. It was common ground that the appellant's trousers were pushed down around his legs and that his penis penetrated Teresa's vagina. There was medical evidence of a tear in the anal region but there is no evidence to prove that that was related to the incident in question. Apart from this common ground, the versions of Teresa and the appellant as to the circumstances in which they came to be together in the caravan and what occurred in it, are in total conflict. 7. Teresa gave evidence that when she returned to her own caravan she lay on the bed and passed out. She was vaguely aware of tugging at her jumper. She then felt pain in her vaginal area and was aware of a man on top of her. She said that she remembered curling up in a ball and freezing. Her next memory was of Mick Hawthorn calling out to her to come quickly because Lee was bleeding. 8. The appellant's version was that he set out to the toilet possessed of Mick Hawthorn's keys. On his way to the toilet he was called by Teresa from the annexe of her caravan. She went into the caravan and he followed. There was conversation between them for a short while after which they kissed. He touched her chest and her leg and there was some kissing and intimate touching. She started to take her jumper off. He assisted her to remove it. She started to undo the top of her jeans and they moved into the bedroom section of the caravan. They were tight jeans and the appellant pulled them off. She unbuttoned the bodysuit and the appellant pulled his trousers down. He then had sexual intercourse with her by inserting his penis into her vagina. While all this was in progress and before he had ejaculated, Teresa said "There's someone there." The appellant rolled off the bed onto the floor and tried to get his trousers up. He saw Lee standing in the caravan. Lee began swearing shouting and cursing. He took a gun out of a satchel and aimed it towards the appellant. Teresa was sobbing. Hawthorn came in and demanded his keys from the appellant. The appellant threw the keys to him and took the opportunity of the distraction to escape the caravan. 9. Lee gave evidence that when he came into the caravan the appellant told him that he had wanted somewhere to "crash". Lee accepted that he was drunk and had wanted to sleep. There was a friendly discussion about the gun which Lee showed the appellant. The appellant took the gun, held it up "and sighted it as you would firing." He then handed the rifle back to Lee. Hawthorn then arrived and told him to put the rifle away. Hawthorn told the appellant to get out. When the appellant got up Lee noticed that the fly in his trousers was undone. The appellant and Hawthorn went to Hawthorn's caravan and Lee followed. Hawthorn then told Lee to make sure that Teresa was alright. Lee returned to the caravan and pulled the quilt back to observe that Teresa was crying and shaking. Her jumper and jeans were off and her bodysuit was pulled up so as to expose the lower part of her body. She said "He forced himself upon me. He raped me." 10. Lee then grabbed a piece of wood which Lee had used as a stick and went back to Hawthorn's caravan. 11. Hawthorn's evidence was that when he arrived at the caravan the appellant was crouched in the bottom corner of the bed with his hands in front of his groin and was doing his fly up. Teresa was under the quilt and was crying. Hawthorn said to the appellant "What the hell have you gone and done now?" and demanded the keys. The appellant gave him the keys. Lee said to the appellant "What are you doing mate? Are you crashing?" Teresa said "I think he raped me." Hawthorn said he heard her say those words but it appeared to him that Lee did not hear them because he showed no reaction. Lee, however, pulled a rifle out of a wardrobe and removed it from a leather pouch. The appellant took the rifle from him and sighted it. There was some conversation about how nice the gun was. Lee took the gun back and the appellant left the van. Hawthorn says that while still in the van he said to Lee "I think you'd better speak to your wife." Lee had a conversation with Teresa and then he grabbed the rifle in an angry manner and took some bullets from under a cushion. Lee threatened that he would shoot the appellant. Hawthorn took the rifle off Lee. Lee grabbed a walking stick and Hawthorn followed him out of the caravan. 12. It is clear that in Hawthorn's caravan annexe Lee struck the appellant on the head with the walking stick using some force. The appellant grabbed the walking stick and Lee thereupon grabbed him around the throat. Lee had the appellant on the ground and was choking him. Hawthorn separated the combatants. Lee and Hawthorn both say that there was then an interval of time during which Lee and the appellant were standing up abusing one another. Then without warning the appellant headbutted Lee and knocked him to the ground. A struggle ensued during the course of which Lee sustained a severe injury to his right ear. 13. The appellant's version differs from those versions as to this incident only in that his is a version of a continuous struggle. He said that he did not remember headbutting Lee and denied having bitten his ear. Hawthorn's evidence was that he saw the appellant bite Lee's ear and then broke up the struggle. The appellant spat blood in Lee's face and said "I enjoyed that sunshine. Have you had enough?" Hawthorn saw the appellant off the caravan park and summoned Teresa. Teresa appeared in Hawthorn's caravan annexe fully dressed. Hawthorn drove Lee and Teresa to the Noarlunga Hospital. Lee was subsequently taken to the Flinders Medical Centre where he was seen by Dr Clisby. Dr Clisby gave evidence that the right ear was partially amputated in that the cartilage part of the ear was almost totally off, hanging by a thread of skin. He expressed the opinion that the injury was consistent with someone having bitten the ear. 14. The complaint of rape was made and Teresa was examined by a Dr Moody at the Sexual Assault Unit at the Queen Elizabeth Hospital at 4.35 am. Teresa was a little unsteady on her feet. There was no sign of injury to the body. There was no abnormality or sign of recent injury to the genitalia. The doctor observed a fresh split about two millimetres in length just outside the anal verge. Teresa told Dr Moody that she had "got up to walk down to the toilets and one of the guests walked with her or followed, but instead made her go into her own caravan onto the bed." 15. She was carrying the keys for the toilet in her hand but the assailant took them from her and opened the door of her caravan. Teresa wasn't sure just how he managed to do that but he seemed to push and shove her inside. She further said that afterwards she was curled up on the bed, not sure what had happened when her husband came in upset and angry with the other man. It is impossible not to view a verdict of guilty of rape based upon such evidence other than with misgiving. It is true that the jury was satisfied of the guilt of the appellant but I think that the verdict of the jury was vitiated by irregularities in the summing up with a consequential serious risk of prejudice. When directing the jury, the learned trial judge described the crime of rape as follows: "Here the crime alleged against the accused consisted of having unlawful intercourse with Teresa, of having sexual intercourse with her without her consent, or of having sexual intercourse knowing that she was not consenting or realising that she might not be consenting or having sexual intercourse with her with the determination to go on notwithstanding that realisation." 16. In that direction the mens rea is made an alternative to the element of absence of consent instead of being referred to as an additional element which had to be proved by the prosecution. I do not know what the jury would have made of that but evidently the elements of the crime were giving them some trouble. After a period of retirement, they sought a redirection as to what they described as "the three elements" of the crime. His Honor directed them in the same terms again making the mental element an alternative to the element of the absence of consent. 17. There was a further serious misdirection. The judge directly directed the jury that they must consider each charge separately but added, "You can look at all of the circumstances to help you make up your mind, but they are quite distinct matters." 18. This was a serious misdirection in the circumstances. There were elements in the evidence with respect to each of the charges which were not admissible with respect to the other charge. That was particularly so with respect to the charge of rape. I cannot see that anything that occurred after the participants left Teresa's caravan which could conceivably be admissible with respect to the charge of rape. There was no express or implied admission or anything else which could throw light upon what had occurred in the caravan. The direction that the jury could look at all of the circumstances amounted to a direction that they could take into account the appellant's behaviour subsequently in Hawthorn's caravan in considering the issue of his guilt on the charge of rape. 19. This misdirection was highly prejudicial to the appellant. At the commencement of the trial, counsel for the accused had applied for a severance and a separate trial of the two counts. That application was refused and the refusal was challenged on the appeal. In the view I take of the case it is unnecessary for me to consider the correctness of that ruling. What is certain is that the joint trial of the two charges made it imperative that the jury be given clear directions as to any evidence which was admitted with respect to one charge but which was inadmissible with respect to the other and the clearest of warnings to take care not to be prejudiced in considering the rape charge by anything that the appellant had done afterwards. The evidence of Hawthorn as to what the appellant did and said following the altercation in the caravan had the potential to be highly prejudicial to a fair and impartial consideration of the charge of rape. The quality of the evidence upon which this appellant was convicted of rape is highly suspect. Teresa was not accustomed to drink and was very intoxicated. One cannot ignore the possibility that in her intoxicated state she succumbed to sexual temptation and engaged willingly in sexual intercourse with the appellant. Her state of intoxication was such as to militate strongly against placing reliance upon her evidence of what occurred. She has displayed extraordinary lapses of memory which, if they are not lapses dictated by convenience, indicate a considerable degree of alcoholic amnesia. She denied any recollection of the presence at the party of Wayne Hutton, the man upon whose groin she was said to have placed her hand. There is not the slightest doubt on the evidence that Wayne Hutton was at the party. Even more extraordinary is her professed lack of recollection of anything that occurred between experiencing pain in her vagina and being summoned by Hawthorn because of Lee's injury. If that lapse of memory is genuine, it means that she has no recollection of the extraordinary events which took place in the caravan after Lee and Hawthorn arrived. This might be explained if her condition were more or less comatose, but that is difficult to reconcile with her apparent ability to respond only a few minutes later to Hawthorn's summons, to dress herself and to participate in the removal of Lee to hospital. It is also difficult to reconcile with her recollection of leaving Hawthorn's caravan to go to her own caravan and her seemingly clear recollection of events after being summoned by Hawthorn only shortly after the alleged rape. The same comment can be made about the removal of Teresa's clothing. The removal of that clothing without her knowledge would only be explicable if she were virtually comatose and that explanation would face similar difficulties. 20. There is the further grave difficulty about acting upon Teresa's version, namely that it is quite inconsistent with the account that she gave Dr Moody only a few hours after the incident. The story that she was intercepted while going to the toilet and forced into her caravan is at total variance with her evidence in Court to the effect that the appellant came into her caravan while she was comatose on the bed and took advantage of her condition. Her version to Dr Moody makes it plain that the incident commenced, as the appellant claimed, outside the caravan. It also makes plain that Teresa was far from being in a comatose condition at the time of the sexual incident. 21. I hasten to say that I do not think that there are grounds for any positive conclusion that Teresa is not telling the truth. The appellant's version of the event is also unconvincing in many respects. A great deal of liquor was consumed that night by all the participants. Marijuana was smoked by Hawthorn and perhaps by others. The events are surrounded by the haze of intoxication and it is simply impossible to ascertain the truth with any confidence. 22. In those circumstances I am of the opinion that any verdict of guilty of rape arrived at on this evidence would be unsafe. The appellant is therefore entitled to a verdict of acquittal. 23. My conclusion as to the charge of rape leads inevitably to the conclusion that the verdict of guilty on the charge of assault occasioning actual bodily harm, cannot stand. The conclusion of the jury on the charge of rape could well have had a prejudicial affect upon their consideration of the assault charge. It is almost inevitable that a belief that the appellant raped Teresa would have affected the jury's assessment of the appellant with respect to his subsequent actions in Hawthorn's caravan. There are also criticisms of the summing up with respect to this charge but it is unnecessary for me to consider them. The verdict must be set aside. There is, however, evidence reasonably capable of supporting a verdict of guilty of assault occasioning actual bodily harm and I think that there must be a new trial on that count. 24. In my opinion, therefore, the appeal should be allowed and the verdicts of guilty on both counts should be set aside. In lieu thereof there should be a verdict and judgment of acquittal on the first count and an order that there be a new trial on the second count.

JUDGE2 MILLHOUSE J I agree.

JUDGE3 OLSSON J This is an appeal, by leave, against the conviction of the appellant, by verdicts of a jury, of one count of rape and one count of assault occasioning actual bodily harm. 2. A variety of grounds of appeal were pleaded and relied upon on the hearing of the appeal but it is, I consider, unnecessary to discuss all of them in detail. 3. The facts relied upon by the Crown were somewhat unusual. In October 1992 a young married couple, Lee and Theresa Holden, were living in a caravan at the Port Noarlunga Caravan Park. Late in the afternoon of 1 October 1992 a number of the residents of the Caravan Park gathered in the annexe to the caravan occupied by the Holdens to drink and socialise. 4. At some stage Lee Holden and the witness Hawthorn (who was a near neighbour of the Holdens in the Caravan Park) left the gathering to go to a delicatessen in Port Noarlunga to procure some cigarettes. Whilst at the delicatessen they encountered the appellant, who was well known to Hawthorn, but only casually known to Lee Holden. After some discussion Hawthorn invited the appellant and two females who were with him to the Caravan Park later in the evening. Hawthorn and Lee Holden then rejoined the group at the annexe and further drinking ensued. 5. Later in the evening the group at the annexe decided to move to Hawthorn's caravan, only a very short distance away. Further drinking thereafter took place in that location. At some stage after the move the appellant arrived with his two female friends. 6. Apparently, as the evening progressed, a certain amount of stupid, maudlin behaviour occurred. It was claimed by Theresa Holden, who had consumed a good deal of liquor, that, when she left the Hawthorn's caravan and was in course of going to the toilet late in the evening, the appellant, who had met her for the first time that evening, appeared and accosted her by taking hold of her arm. She said that he made verbal advances to her of a sexual nature. This, she said, occurred near the toilet. She deposed that she rejected his advances in no uncertain manner and told him to "Fuck off". When she returned to Hawthorn's caravan the appellant was not there. 7. By the early hours of the morning the group in or at the caravan gradually dispersed. At a time at which the appellant was still present Teresa Holden, who, by then, was appreciably intoxicated, excused herself. She said that she walked the short distance back to the Holden's caravan and went straight to bed without undressing, leaving the door unlocked so that her husband could gain entry. This was some time after the toilet episode, about which she had not said anything to the others present. 8. Mrs Holden was, at the time, wearing skin tight jeans, a jumpsuit fastened through the crotch with studs and a jumper on top of the jumpsuit. 9. A little later again the appellant borrowed the keys to the Caravan Park toilet block and left Hawthorn's caravan, ostensibly for the purpose of relieving himself. According to Mrs Holden she was aroused from her sleep in the Holden caravan, in the sense that she first became aware of someone pulling on her jumper, and then she felt her jeans coming off completely. She testified that, due to her state of intoxication, she was then still "drowsy, mainly asleep". Her next sensation was what was described as "a real sharp pain in my vagina". She looked up and realised that the studs of her jumpsuit were undone and that a man was on top of her. She did not know who it was. 10. Her evidence was that she made no attempt to call out or seek assistance, despite the fact that Hawthorn's caravan was well within earshot; and that the next thing that she recalled was lying in a curled up position on the bed and pulling the bed clothes up over her. She did not know what had happened to the man. 11. She testified that, soon afterwards, she heard Hawthorn calling out something to the effect "Teresa, come quick, Lee's bleeding". She thereupon pushed the covers off, pulled on her jeans (which were in a heap on the floor), otherwise adjusted her dress and quickly went outside. 12. She went to Hawthorn's car and there saw her husband sitting in it with blood pouring from his ear. Hawthorn then drove Mr and Mrs Holden to the Noarlunga Hospital, from which he was taken to Flinders Medical Centre for treatment. At Flinders Medical Centre Mrs Holden apparently complained that she had been raped and was referred to the sexual assault unit. 13. It is to be noted that the following exchanges occurred in the course of Mrs Holden's examination in chief:-

     "Q. Do you know who it was who raped you?
     A. I do now.
     Q. How do you know that?
     A. Because they caught him." 14. That was followed by this further evidence which seems quite contrary to what she had earlier said:-
    "Q. Of your own knowledge do you know who it was who
    raped you. Are you able to identify the person who did it?
     A. Yes, I am.
     Q. Who was that person?
     A. Stan Hacket." 15. The version of events deposed to by Mrs Holden before the jury falls to be compared with her initial declaration to the police and what she said to Dr Moody at the sexual assault clinic. 16. She told the police that her memory was that, when she returned from the toilet, the appellant was in fact sitting in Hawthorn's van, as was her husband. 17. In striking contrast with her evidence before the jury she told Dr Moody that she "got up to walk down to the toilets and one of the guests walked with her or followed, but instead made her go into her own caravan on to the bed" and then had intercourse with her. 18. Mrs Holden further told the doctor that, afterwards, she was curled up on the bed, not sure what had happened, when her husband came in upset and angry with the other man. 19. It is thus apparent that there were significant inconsistencies in the various versions of narrative fact given by Mrs Holden. 20. According to Mr Holden the sequence of events which occurred was that his wife went to the toilet, followed, some time afterwards, by the appellant. When the appellant had not returned after some time Lee Holden and Hawthorn went looking for him. In the course of so doing Holden walked through the annexe into his own caravan and switched the light on. He observed his wife lying on the bed with a quilt wrapped around her and the appellant was lying on his side on the floor alongside the bed. 21. Holden said that he asked the appellant what he was doing there, to which the latter replied "I was just looking for somewhere to crash out". 22. After a time and some discussion with the appellant Holden called out to Hawthorn that he had found the appellant. Hawthorn came in and said to the appellant, who was still on the floor, "You bastard, what are you doing? Get out." 23. It emerged that, prior to calling out to Hawthorn, Holden had a quite casual and relaxed discussion with the appellant, in the course of which he got out his rifle and showed it to the latter because, earlier in the evening, the appellant had mentioned having been in the Army. There was, according to Holden, no acrimony at that point. 24. Holden claimed that, when the appellant was told by Hawthorn to leave, he got up and did so. However, it became apparent that, when he did stand up, his fly zipper was undone. Holden followed the appellant and Hawthorn out, but the latter told him to make sure that Teresa was all right. 25. It was Holden's evidence that he re-entered the caravan, pulled back the quilt and found his wife crying and shaking. Up to that point she had not moved or said anything. She had no jeans on and her bodysuit was up around her waist. She then said "He forced himself upon me. He raped me." 26. According to Holden he became angry, picked up a piece of wood which he had been fashioning into a walking stick, and "stormed" across into the annexe to Hawthorn's caravan, where the latter was standing talking with the appellant. He says that he took a swing at the appellant with the stick, but the appellant grabbed it and then Holden seized the appellant by the throat. A general melee then occurred, with Hawthorn attempting to separate the two men. 27. On Holden's narrative the appellant was pulled away, but an argument continued, during which the appellant head butted Holden, who fell to the ground. Holden then struggled on the ground with the appellant. It is not disputed that, at one point during the struggle, the appellant bit one of Holden's ears, so that it was hanging down, almost off. 28. Holden deposed that he returned to his caravan. Whilst there he picked his rifle up and proposed to make the appellant leave. At that stage the appellant must have departed. The jury was told that Hawthorn came into the caravan, told Holden to put the rifle down and said that he had to get to hospital, because his ear was pretty bad. Mrs Holden was still curled up on the bed. The three of them then went to hospital in Hawthorn's vehicle. 29. It is at once to be seen that Holden's narration of events, as just summarised, is seriously at odds, in terms of sequence and detail, with that of his wife. 30. Hawthorn's evidence was that, as the evening wore on, Mrs Holden became "paralytic" drunk, although she was able to walk unaided. This witness said nothing about Mrs Holden going to the toilet, but he told the jury that she did eventually leave to go to bed. It was, he said, about half an hour later that the appellant borrowed the keys to go to the toilet, but failed to return after 5-10 minutes. Both men then went to look for him. 31. Hawthorn's version was that, when he eventually entered Holden's caravan, the appellant was crouched at the bottom corner of the bed with his hands in front of his groin, doing up his zip. At that point Mrs Holden was on the bed with the quilt around her and was crying. 32. The narration of this witness as to what then transpired was substantially different from that of both Mr and Mrs Holden. 33. He said that he asked the appellant what he had done and demanded his keys back, whereupon Holden said, "What are you doing mate? Are you crashing?" The appellant did not reply, but Mrs Holden said "I think he raped me." Hawthorn then described what followed in these terms:-
     "A. Lee didn't hear her say that.
     Q. Well, what is it about Lee's behaviour that makes you
    think that.
     A. Because if your wife had said that, you would have
    automatically had a reaction. But there was no reaction. He
    hadn't heard what she said.
     Q. What did he say or do after that - that is Lee.
     A. He leant towards the wardrobe door and he pulled out a
    rifle.
     Q. What did he do with the rifle.
     A. He didn't have a chance. Stan took it from him.
     Q. Was the rifle in some sort of case.
     A. It was in a leather pouch.
     Q. Did anyone remove it from the pouch or the case.
     A. Lee removed it from there.
     Q. What happened after he'd removed it from the case.
     A. As soon as it came out the case, Stan took hold of it.
     Q. What did Mr Hacket do with the gun when he took hold of
    it.
     A. He sighted it.
     Q. What do you mean by that.
     A. He held it up (DEMONSTRATES) and he sighted it.
     Q. Did he say anything - that is Mr Hacket - when he sighted
    it.
     A. Not to my memory, no.
     Q. Was there some conversation between Mr Hacket and Lee
    about the gun.
     A. There may have been a comment on how nice it was or
    something like that. I don't know. I don't remember much of
    that point. I was more concerned at a gun being brought out.
    I'd heard what Teresa had said.
     Q. Now, at that point, what did you do, if anything.
     A. I was just watching them at that point. I was - I had my
    eyes on the rifle.
     Q. Was anyone pointing it at anyone else in any threatening
    manner or not.
     A. Not at that stage.
     Q. In fact, I think you said Mr Hacket had the gun at that
    point.
     A. At that point.
     Q. What did he do with the gun after he'd sighted it and
    perhaps made some comment about it.
     A. Lee took it back from him.
     Q. What did Lee do with it.
     A. He just kept holding it. As soon as Lee was holding the
    rifle, Stan went straight out the van.
     Q. Did you ever take hold of the gun at that time or not.
     A. Not at that particular moment, no.
     Q. You said that once Lee had the gun, then Stan left the
    caravan.
     A. Yes.
     Q. Did he leave quickly or slowly or just normally.
     A. Got out pretty quick.
     Q. Did you follow him at all or not.
     A. No. Q. What did you do.
     A. I stood there with Lee and said to him 'I think you'd
    better speak to your wife'." 34. On Hawthorn's version Lee Holden did speak to his wife and then turned around and seized the rifle in a threatening manner, but Hawthorn took it away from him. He had threatened to shoot the appellant. However, Holden then seized a walking stick and ran out of the van. Hawthorn followed, to see him enter his own annexe and assault the appellant with the stick. 35. He then described the subsequent melee in somewhat similar terms to Holden's narration. 36. Once more there are very substantial and obvious differences between the evidence of this witness and that of Lee Holden in particular. Moreover, there were also differences between his oral evidence and the declaration which he originally gave to the police. 37. The evidence which I have summarised fell to be contrasted with that of the appellant himself. 38. He said that, by about 1.00 am, he, Holden and Hawthorn were the only persons left in Hawthorn's caravan. The appellant borrowed the key to the toilet and went outside with the intention of going there. He conceded that he was intoxicated at the time. As he went near the Holden annexure Mrs Holden, who appeared drunk, called out "Hey Dickhead" and some conversation developed, during which he followed her back into her caravan. 39. They sat down side by side and talked for a few minutes, after which, according to the appellant, they, more or less spontaneously, commenced kissing. He fondled her. The appellant testified that Mrs Holden then commenced removing parts of her clothing and he assisted her. They both had difficulty getting her jeans off, because they were skin tight. 40. The appellant said that they then commenced to have consensual sexual intercourse, in the course of which Mrs Holden said "There's someone there." They both disengaged and the appellant endeavoured to re-adjust his clothing. He was crouched near the end of the bed endeavouring to do up the top of his trousers, when Lee Holden appeared. Mrs Holden was on the end of the bed. She started to sob as her husband commenced swearing and shouting. He produced a gun from a satchel and pointed it at the appellant. Hawthorn then came in and demanded his keys, at which point the appellant seized the opportunity of exiting the caravan. 41. The appellant said that he raced over to the Hawthorn annexe to collect his gear, when Holden came in behind him and struck him on the side of the head with the stick. This partly 11 stunned him. Holden then got on top of him and attempted to throttle him and a general fight developed until Hawthorn broke it up. He did not remember biting Holden. He went home after Hawthorn intervened. 42. It was the appellant's contention that Mrs Holden was a willing party to the intercourse which took place. He denied the occurrence of any incident near the toilet as deposed to by Mrs Holden. 43. I have recited the key aspects of the evidence at some length, because it is not possible to appreciate the issues argued on the appeal without a reasonable grasp of it. 44. Against that background the appellant asserts that:-
     . the learned trial judge erred in law in declining to
    sever the rape charge from the charge of assault occasioning
    actual bodily harm;
     . the directions given as to the elements of the offence of
    rape were inadequate and confusing and the jury was not informed
    that all elements had to be proved beyond reasonable doubt;
     . the directions as to intoxication, as that aspect arose for
    consideration in relation to the elements of rape, were
    inadequate;
     . the learned trial judge failed adequately to point out the
    inherent dangers of convicting on the evidence of Mrs Holden in
    the particular circumstances of the case, particularly having
    regard to her state of intoxication and the inconsistency of the
    various witness' narratives;
     . the directions as to the second count were confusing and
    inadequate as to the issue of self defence;
     . no sufficient direction was given as to the need to
    consider each count and the evidence relative to it separately.
    The direction actually given was erroneous and misleading;
     . no direction was given as to the significance and use of
    the character evidence related to the appellant;
     . the verdicts were generally unsafe and unsatisfactory. 45. I first turn to the issue as to severance. Section 278 of the CriminalLaw Consolidation Act authorises joinder of charges where such charges "are founded on the same facts, or form, or are part of, a series of offences of the same or a similar character". 46. In my view it can at once be said that the two offences charged did not form, and were not part of, a series of offences of the same or a similar character. As was pointed out by Dawson J in De Jesus v R (1986) 68 ALR 1 at 15, this aspect of the section focuses on the legal character or components of the offences rather than the facts alleged by the prosecution. The requirement is that there be a sufficient nexus or connection betwen them - in terms of similarity - coupled with a degree of correlation which enables the offences to be described as a series, without straining the word beyond the meaning which it is reasonably capable of bearing. 47. The two offences charged in this case have fundamentally different legal characters and the only nexus between them is temporal. Patently they cannot be characterised as being a "series" of the type contemplated by the section. 48. Can it, however, fairly be said that they are founded on the same facts? To fall within such a test it must be demonstrated that there was a unified, continuous sequence of events which gave rise to the alleged offences. 49. In the instant case there are, in any event, inherent difficulties in drawing a line between what ought to be classified as being of such a class; and what ought to be characterised as separate acts. This is so by reason of the divergences in the factual narratives of the various witnesses. 50. However, at the end of the day, it cannot be denied that, on any view, there was a distinct separation between the alleged rape and the alleged assault - both in terms of chronology and location, even although the difference in time may not have been more than 10 minutes or so. 51. Viewed objectively, what occurred was not, in the legal sense, a unified sequence of events. Rather what transpired were, to adopt the language of Bray CJ in The Queen v Heidt (1976) 14 SASR 574 at 580, separate episodes with different actors - they were like two successive scenes of a play with the curtain dropped between them, falling on the completion of the act of intercourse between Mrs Holden and the appellant and rising on the subsequent attack by Lee Holden on the appellant in the Hawthorn annexe, regardless of how that attack came about and who was initially present. 52. It follows that the joinder of the two charges was not authorised by section 278 of the Criminal Law Consolidation Act and that the trial therefore miscarried. 53. Viewed on a practical plane the evidence related to the second count clearly must, in any event, have had a prejudicial effect on the trial of the first count, because the evidence of the ear biting episode must necessarily have operated to tend to negate the evidence of the good character of the appellant. 54. Equally the evidence of the alleged rape episode would necessarily cast a prejudicial shadow over the events surrounding the melee between Lee Holden and the appellant. That is, of course, not to say that evidence of Lee Holden's state of mind and what, in broad terms, gave rise to it would not be irrelevant to the assault charge, so as to place that in its appropriate factual setting and render intelligible the events related to it. That is another issue. 55. In my opinion the appeal must be allowed on that basis alone, and it becomes necessary to address the other grounds of appeal, some of which are of considerable substance. However, the question arises as to whether the appellant ought to be presented for re-trial on both of the charges preferred against him. 56. On the state of the evidence I consider that it would be inappropriate to require his re-trial on the charge of rape. Having regard to the obvious and serious inconsistencies between Mrs Holden, her husband and the witness Hawthorn as to the narrative facts, the evidence of the advanced state of inebriation of Mrs Holden, the fact that the appellant had also been drinking for a substantial period of time and the character evidence related to the appellant it is difficult to see how any verdict of guilt could be considered other than as unsafe and unsatisfactory. How a jury, properly directed, could ever safely resolve the issues of consent and the appellant's state of mind and perception beyond reasonable doubt in the circumstances is impossible to perceive. 57. I would therefore quash the conviction for rape and order that a verdict of acquittal be substituted for it. 58. A rather different situation arises in relation to the charge of assault occasioning actual bodily harm. There is certainly a body of evidence fit to go to a jury as to this count - on which it would be justified in convicting the appellant if it considered that the Crown had negatived self defence in relation to the ear biting episode. 59. I would, accordingly, quash the verdict of guilt in relation to this count and remand the appellant for re-trial in respect of it.