Vincent O'Brien Windisch v R No. SCCRM93/367 Judgment No. 4289 Number of Pages 6 Criminal Law and Procedure

[1993] SASC 4289

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL LEGOE(1), MOHR(2) AND BOLLEN(3) JJ

CWDS
Criminal law and procedure - appeal against conviction on charge of assault with intent to rape - evidence suggested accused consumed alcohol and drugs before the offence occurred but no evidence as to level of intoxication - trial judge refused to give direction on intoxication - whether jury should have been directed as to the effect the alcohol and drugs may have had on accused's perception of consent. Held, there was no error in the trial judge refusing to give such a direction as the appellant's case did not depend on the issue of intoxication - appellant argued that there was positive consent inferred from the victim's alleged offer to give the appellant sex for $200. Bedi v R (unreported decision of Duggan J Judgment No. 4210 delivered 8/10/93) and R v Craggs (unreported decision of CCA, Judgment No.2473 delivered 22/8/90), applied.

HRNG ADELAIDE, 16 November 1993 #DATE 26:11:1993
Counsel for appellant:     Mr W F Braithwaite
Solicitors for appellant:    Mr W F Braithwaite
Counsel for respondent:     Mr B Jennings QC with him
   Ms R C Gray
Solicitors for respondent: Director of Public
   Prosecutions (SA)

ORDER
Appeal dismissed.

JUDGE1 LEGOE, MOHR AND BOLLEN JJ This is an appeal against the verdict of a jury for one count of assault with intent to rape. On 16 November 1993 this court made an order dismissing this appeal. The following are the reasons as to why the appeal was dismissed. 2. The grounds of appeal were amended by leave on two occasions before the hearing. The grounds of appeal as finally settled read:
     "1. That the verdict is unreasonable and/or unsafe and/or
    unsatisfactory and/or it would be dangerous in the
    administration of justice to allow it to stand.
     2. That the learned trial judge erred in declining to direct
    the jury about the relevance of the accused's possible
    intoxication to questions of intent.
     3. That the learned trial judge erred in the circumstances of
    the case in failing to direct the jury that it could not convict
    the accused of assault with intent to rape unless the Crown had
    disproved any other reasonable inferences open on the evidence
    which were consistent with the accused's innocence." 3. The main thrust of the submissions to this court by counsel for the appellant related to ground 2, i.e. the learned trial judge should have directed the jury "about the relevance of the accused's possible intoxication to questions of intent". This ground was narrowed to the request that was actually made by counsel for the accused at the conclusion of his Honour's summing up. Counsel articulated that request as follows:
    "I don't suggest intoxication in that sense (i.e. 'he has
    made a blatant statement that he was intoxicated by drugs and
    alcohol'). What I suggest - I ask you to direct the jury - it
    is not a question of whether there was intent or not intent - I
    don't put intoxication in that way. What I am suggesting is
    that they should take into account that if they accept Mr
    Windisch was intoxicated, that this may have an effect on his
    perception of whether or not there was consent." 4. The learned trial judge said that there had not been the "slightest suggestion" of intoxication during the evidence or in counsel's address to the jury. Counsel for the appellant, on the hearing of this appeal, challenged that statement by the learned trial judge and drew our attention to certain passages in the evidence. In the cross-examination of Constable Ross, the constable was asked:
    "Q. Was it your impression that Mr Windisch was under the
    influence of alcohol and/or drugs to some degree.
     A. He appeared to be hung over, yes." 5. In his evidence, the appellant gave the following responses in answer to questions from counsel:
     "Q. Do you remember what time you got there (i.e. Victoria
    Square in the city).
     A. About 5.30 p.m. in the afternoon.
     Q. What were you doing whilst you were there.
     A. I was taking celebrations in a Nunga meeting.
     Q. By that you mean you were drinking alcohol.
     A. Yes, I was.
     Q. What were you drinking.
     A. Port." 6. Nowhere in his evidence did the appellant tell the jury how much he had drunk from the time that he was drinking port until the events which are the subject of the charge and conviction, namely, at about 6.10 a.m. on the following morning. 7. In relation to the question of any drug intake, examination by counsel proceeded as follows:
     "Q. What was the purpose of stopping at the phone box.
     A. I needed to use the light in the telephone box, so as I
    could make myself up a fix.
     Q. Did you do that.
     A. Yes, I did.
     Q. Did you then leave the telephone box.
     A. I was in the telephone box for about ten minutes.
     Q. Okay, well, what did you do in the telephone box.
     A. I made myself - I made myself up a fix.
     Q. What did you do then.
     A. Then I - I had that fix." 8. It was while he was in the telephone box that he said he saw the girl walking up towards him as he was looking out of the telephone box. 9. Counsel for the appellant also drew the court's attention to a discussion between the learned trial judge and counsel for the accused during the course of an argument in the absence of the jury that there was no case to answer. In the course of that discussion, counsel for the accused suggested certain alternatives to the learned trial judge which were open on the evidence, other than a motive of an intention to rape, e.g. an intention to indecently assault the victim (with which he was not charged). Further, an alternative was put that the accused had gone into the girl's flat in the hope that he might have sex with her but when she ran to the phone and he tried to stop her from using the phone, there was a reasonable possibility that the accused had no intention of having sexual intercourse with her without her consent. Counsel elaborated on this by making a number of alternative suggestions to the actions of the accused and of the victim. However, nowhere in this part of the discussion is there any suggestion that the alcohol or the drugs had any effect on the accused's intentions towards the girl once he had gained access to the flat. 10. It was on the very meagre evidence to which we have referred above that counsel on this appeal made application after the summing up for a direction as to the accused's perception of "whether there is a lack of consent or not, and he has obviously been intoxicated, on his evidence, by drugs and alcohol". 11. Counsel for the respondent drew attention to a passage in the accused's cross-examination where it was put to him that he had opened the doorway and walked into the flat, which the accused denied. He was also asked in cross-examination whether the girl had raced to the phone shouting at him, telling him not to come in, to which the accused had answered "I don't believe so". It was then put to the accused:
     "Q. Maybe in your fixed state - you had just had heroin and
    stuff.
     A. I might have been on the nod, but - any heroin user will
    tell you that you still know what's going on around you, you can
    still hear words and conversations.
     Q. You knew what was going on, didn't you.
     A. About what?
     Q. When you were in the unit.
     A. When I was in the unit, at what particular stage in the
    unit?
     Q. When you were in the unit, you were chasing her to the
    phone and you knew what you were doing, didn't you.
     A. I was not chasing her to the telephone. And I knew what
    I was doing. I knew what I was doing when I was in the unit." 12. In his last answer to the jury, the accused said:
    "... And I committed no crime. And I kept my actions, even
    though I was stoned and the girl was screaming at me. And I
    spoke to her a couple of words - just I wanted my dope back, and
    I knew I wasn't going to get it and I turned around and I left
the place." 13. It was on this material that counsel for the accused asked the learned trial judge to direct on intoxication and to explain to the jury that they should consider whether there was a possible basis for any mistake in the mind of the appellant about the girl's consent to having intercourse with him when, on his story, he had been invited in there to have sex with the girl for a fee of $200. It is necessary to turn briefly to the background facts to determine this ground of appeal. 14. The victim lived with a girlfriend called Mary in a three-storey unit. She arrived home from a nightclub some time after 4 a.m. She had a shower. She then changed into a long night dress. She did not disturb Mary upon arriving home. At about 6 a.m. she put out the rubbish bin for collection. She then went inside and lay down in the lounge room to sleep. It was very hot. She left the main door open. The security screen door was closed but not locked. These doors open into the lounge room on the ground floor where she lay down. Very shortly afterwards she sensed and then saw a man at the screen door. She said it was beginning to get light but the figure was blocking the light coming in through the door. She sensed that he was going to come in and she said to him "Don't come in or I'll call the police". He then opened the screen door and she ran to the phone which was on the dining room table. She says she yelled a couple of times "Don't come in". She then reached over to the phone to press the button for the police number. This was one of the memory numbers on her phone. As she was lifting the receiver she noticed the figure about a metre or more away from her. He took off his underpants and shorts. He then came up behind her and brought his hand over her mouth and put his finger on the telephone button to stop it ringing through. It was at that moment that Mary came down from her bedroom upstairs. The man ran out of the flat. Mary said in evidence that she said to the man "What are you doing here?" or words to that effect. He claimed that he had been invited in and he was not going to hurt her (the victim). Mary said that at that stage he had his shorts on. 15. When the accused was stopped and questioned by the police shortly afterwards in the vicinity of West Terrace, he was asked whether he had just come from seeing a female, to which he said "Yeah". When asked where, he pointed in an easterly direction and when asked what happened with the female, he said "She wanted $200 for sex. I didn't have enough money". He was then arrested on suspicion of committing a serious offence. When questioned shortly afterwards at the Adelaide CIB, the appellant told the police officers "I met this girl near a phone box in the city and the girl invited me back to her place for sex for $200. When I got back she said I didn't have enough money and, then, her friend came downstairs and I left". He further claimed that he had a full packet of cigarettes which he left behind at the flat. A video recorded interview then took place and this video was submitted to the jury. 16. Counsel for the appellant developed his argument on two heads. First, he submitted that it was the duty of the trial judge where there was evidence of intoxication in the case to direct the jury on the proper use to be made of the evidence of intoxication; see The Queen v Perks (1986) 41 SASR 335. Secondly, a direction should have been given to the jury as to the appellant's perception of the girl's consent to sex. Counsel submitted that this direction should have been put even if the jury totally accepted the victim's evidence on the basis that the appellant went into the flat in the belief that he would be able to have sex with the girl. In particular, the issue as to the intoxication of the appellant was relevant to the aspect of the elements of the offence as to intention when in the alternative the Crown have to prove that the accused was recklessly indifferent as to whether the victim consented to sexual intercourse with him or not. In this regard, reliance was placed on Bedi v R (judgement of Duggan J in the Court of Criminal Appeal, delivered on 8 October 1993, being judgment number S4210) where at pp.6-7, Duggan J was dealing with the alleged intention of the appellant when he knowingly discharged a firearm which was likely to endanger the victim's life and that the appellant either intended such a consequence or "was recklessly indifferent to its occurrence". Duggan J said this: "In determining these aspects of the appellant's state of mind, it was essential for the jury to consider the bearing which the effects of alcohol and drugs may have had on the appellant's appreciation of relevant facts and whether or not he formed the necessary intent inherent in the charge. (The Queen v O'Connor (1979-1980) 146 CLR 64 at 82; R v Tucker (1984) 36 SASR 135 at 139.)" 17. In our opinion the appellant has failed to make out this ground. The learned trial judge clearly charged the jury on the law, particularly on the element of intention in a rape case. The learned trial judge correctly informed the jury that if they were satisfied the accused entered the victim's flat without her consent, that he took off his shorts and underpants, that he placed his hands over her mouth, and that he stopped her from using the telephone, it would be open to the jury to infer from this conduct an intention to rape. His Honour then explained to the jury "other inferences" that may be open on the evidence as suggested by counsel for the accused in his address. His Honour then added:
    "If you do however accept Gemma Bradley's evidence without
    qualification, you may be prepared to conclude beyond reasonable
    doubt that the accused had nothing less than rape in his mind
    when he dropped his shorts and underpants. Any such conclusion
    is, of course, a matter entirely for you." 18. The learned trial judge then summarised the appellant's version of the facts from the evidence. There is no suggestion, nor could there be, that his Honour did not put the defence case fairly and precisely. The important aspect of the appellant's case to the jury as put by the learned trial judge was "She offered to have sex with him for $200. The accused accepted the offer and both then returned to the flat". The appellant also claimed that when in the flat and he had given her $140 and lay down on the sofa, after counting the money he claimed she said he had not got enough money - "I want more". He claimed she then picked up the phone, he grabbed his money and his bankbook and then she screamed so he put his hand over her mouth. He also told the jury he said to her "Look, I'm not going to hurt you, just give me the dope and I'm going". The learned trial judge related to the jury the appellant's explanation for leaving his underpants behind in the flat. 19. After stressing the "indispensable ingredient" of the Crown's version of the facts, i.e. the removal of the appellant's shorts and underpants in the flat, the learned trial judge turned to the jury's function to assess the credibility and reliability of Gemma Bradley on the one hand and "your assessment of the credibility and reliability of the accused on the other". 20. The learned trial judge also dealt with the question of the lie or lies told by the appellant either to the police or to the jury. But there is no complaint about this direction and in our opinion these directions were completely proper. 21. Thus the issues were clearly presented to the jury. When the appellant entered the flat was it reasonably possible he went in after being invited to have sex with the girl for $200, or were the jury satisfied that the girl's version was the one they should accept on the whole of the evidence. Clearly the jury, by recording a conviction, acted solely on the girl's version. On that version there was no room for the jury to come to any other conclusion than that the accused's intention was to have intercourse against her will when he removed his shorts and underpants and put his hand over her mouth when she tried to dial the number. 22. In The Queen v Craggs, an ex tempore decision of the Court of Criminal Appeal, delivered on 22 August 1990, judgment number 2473, King CJ said: "Any direction on intoxication or, indeed, on any other topic must be related to the facts of the particular case and its adequacy must be judged in relation to the evidence and the facts in the case." 23. In our opinion, there was no room on either version of the facts for an "intoxication" direction. The accused maintained to the police and the jury he entered the flat to have sex for $200. That account was obviously rejected by the jury. He intended to have sex, the girl told him not to come in, and when he did she grabbed the telephone. On his own evidence he put his hand over her mouth. On his version he did so to stop her screaming. The only evidence on alcohol was extremely slight and vague. In our judgment the learned trial judge was quite right to reject the request to give a direction on the appellant's "perception of whether or not there was consent". The appellant's case was that there was positive consent inferred from the girl's offer to give him sex for $200. On the Crown case there was a clear case of a consistent denial by the girl that she ever consented or gave any indication of consent to intercourse. 24. We would reject ground 2 of the grounds of appeal. The other two grounds of appeal were not pressed before this court. In our opinion, for the reasons outlined above on the intoxication question, there were straight forward issues of fact and credibility left to the jury. The jury resolved those issues by returning their unanimous verdict of guilty. There is no evidence (apparently accepted by the jury) nor any room for saying that the verdict on the evidence is neither unreasonable, unsafe, or unsatisfactory now that it would be dangerous 12 in the administration of justice to allow it to stand. Ground 1 should be rejected. We have canvassed all the submissions relevant to ground 3. In our opinion, all other reasonable inferences open on the evidence were excluded by the Crown beyond reasonable doubt, and in the light of the clear and precise way in which the learned trial judge left the issues of fact including the possibility of "any other reasonable inferences" to the jury, ground 3 should also be rejected.