Weragoda v The Queen

Case [2021] SASCA 123

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

WERAGODA v THE QUEEN

[2021] SASCA 123

Judgment of the Court of Appeal  

(The Honourable Justice Doyle, the Honourable Justice David and the Honourable Justice Stanley)

28 October 2021

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION

CRIMINAL LAW - EVIDENCE - COMPLAINTS - GENERALLY

CRIMINAL LAW - EVIDENCE - CREDIBILITY - GENERALLY

CRIMINAL LAW - EVIDENCE - OPINION EVIDENCE

CRIMINAL LAW - EVIDENCE - CORROBORATION - WARNING REQUIRED OR ADVISABLE - SEXUAL OFFENCES

Permission to appeal against conviction and appeal against conviction.

The appellant was convicted following a trial by jury of two counts of rape. The complainant was a young woman residing in Australia on a student visa and boarding at the appellant’s house.  The offending occurred in March 2019 when the appellant digitally penetrated the complainant’s vagina and engaged in penile/vaginal intercourse over her objection.

The appellant seeks permission to appeal on the grounds that the trial judge erred in failing to give proper directions to the jury as to the complainant’s evidence. The appellant submits that these errors, together with the admission into evidence of a record of interview between a police officer and the appellant containing prejudicial opinion evidence, resulted in a miscarriage of justice.

Held (per the Court) refusing permission to appeal on grounds 1, 2 and 4, dismissing ground 3, and dismissing the appeal:

1.      The circumstances of the trial did not require a warning from the trial judge of the necessity to subject the complainant’s evidence to close scrutiny or to consider it with great care.

2.      Directions to the jury as to the reliability of the complainant’s evidence were given and it was appropriate for the trial judge to focus on the issue of credibility as this was the critical forensic contest at trial.

3. The trial judge adequately directed the jury in relation to the complaint evidence under s 34M of the Evidence Act 1929 (SA), and in particular the degree of consistency of the conduct of the complainant.

4.      The record of interview was admitted as a result of a considered forensic decision by the appellant’s trial counsel and the appellant remains bound by the conduct of his trial counsel. The trial judge gave clear and appropriate directions to the jury both at the time the record of interview was received in evidence and in the course of summing up as to its proper use.

Evidence Act 1929 (SA) ss 34L(5), 34M; Statutes Amendment (Vulnerable Witnesses) Act 2015 (SA) s 17; , referred to.
R v Murray (1987) 11 NSWLR 12; Bromley v The Queen (1986) 161 CLR 315; Longman v The Queen (1989) 168 CLR 79; RPS v The Queen (2000) 199 CLR 620; R v Jones [2018] SASCFC 80; R v Usher (2014) 119 SASR 22; R v S, DD (2010) 109 SASR 46; R v H, T (2010) 108 SASR 86;

Continue reading Weragoda v The Queen

Sign in free to access the full text

Details
AGLC
Weragoda v The Queen [2021] SASCA 123
Case
[2021] SASCA 123
Decision Date

CaseChat Overview and Summary

The Supreme Court of South Australia, in a decision by the Full Court, considered an appeal by the appellant against his conviction for a sexual offence. The complainant, a young woman residing at the appellant's house, alleged that the appellant had sexually assaulted her. The dispute centred on the directions given by the trial judge to the jury regarding the complainant's evidence and the admission of certain evidence.

The legal issues before the Full Court included whether the trial judge had erred by failing to give a warning to the jury regarding the necessity of closely scrutinising the complainant's evidence, whether the directions on the reliability of her evidence were appropriate, and whether the judge adequately directed the jury concerning the complaint evidence under section 34M of the *Evidence Act 1929* (SA). A further issue concerned the admission of a record of interview and the directions given to the jury regarding its use.

The Court reasoned that the circumstances of the trial did not necessitate a specific warning about close scrutiny of the complainant's evidence, as the judge had provided appropriate directions on credibility, which was the central forensic issue. The Court found that the trial judge had adequately directed the jury in relation to the complaint evidence, as required by section 34M of the *Evidence Act*, particularly concerning the consistency of the complainant's conduct. Regarding the record of interview, the Court held that its admission was a considered forensic decision by the appellant's trial counsel, and the appellant was bound by that decision. The trial judge's directions on the proper use of this evidence were deemed clear and appropriate.

Consequently, the Full Court refused permission to appeal on grounds 1, 2, and 4, dismissed ground 3, and ultimately dismissed the appeal.

Orders

Orders of the court

Held (per the Court) refusing permission to appeal on grounds 1, 2 and 4, dismissing ground 3, and dismissing the appeal:

1. The circumstances of the trial did not require a warning from the trial judge of the necessity to subject the complainant’s evidence to close scrutiny or to consider it with great care.

2. Directions to the jury as to the reliability of the complainant’s evidence were given and it was appropriate for the trial judge to focus on the issue of credibility as this was the critical forensic contest at trial.

3. The trial judge adequately directed the jury in relation to the complaint evidence under s 34M of the Evidence Act 1929 (SA), and in particular the degree of consistency of the conduct of the complainant.

4. The record of interview was admitted as a result of a considered forensic decision by the appellant’s trial counsel and the appellant remains bound by the conduct of his trial counsel. The trial judge gave clear and appropriate directions to the jury both at the time the record of interview was received in evidence and in the course of summing up as to its proper use.

Background

Background to the litigation

It will be seen that, as counsel for the appellant put it, there is some overlap between each of the grounds.Factual background The complainant is a young woman who came to Australia on a student visa in July 2018 to undertake studies at the University of South Australia. She boarded at the appellant’s house. Resident in the house, apart from the complainant and the appellant, were the appellant’s partner, Sithara Kurunduwage (Sithara), and his father. The complainant gave evidence that she lived at the appellant’s house from the time she came to Australia until March 2019. She gave evidence that by the beginning of 2019 she decided to move because she was finding the appellant and his partner annoying and living there was becoming uncomfortable. She succeeded in finding another place to live which was available at the end of March. On the Sunday before she was to move she was at home with the appellant. His partner and father had gone shopping. She and the appellant were standing outside her bedroom door when he asked for a hug because he did not get one from her for his birthday. They entered her bedroom and an argument took place as to whether she would give him a hug. She agreed to do so. After she let go he continued to hug her and said it felt comfortable. He kissed her on the cheek. She became angry. She sat on a chair in front of her desk. He sat on her bed and they talked. He told her that he had sexual fantasies about her. She got up and asked him to leave. She attempted to leave the bedroom. He grabbed hold of her from behind. He began to touch her breasts. She told him to stop. He put his hand down her shorts and digitally penetrated her vagina. He then pulled her shorts and knickers down and again digitally penetrated her. He then engaged in penile/vaginal intercourse over her objections. This occurred for only a few seconds. Suddenly he ran out of the room. The complainant then heard the front door and realised that the appellant’s partner and father had returned home from their shopping expedition. The complainant was feeling scared. She went outside for some fresh air. She went back into the house and returned to her bedroom. She sent a message through WhatsApp to a friend, Nadun Madusanka, in Sri Lanka. She said in evidence that she messaged him “my house mate tried to fuck me”. She told him that she was scared and did not know what to do. Nadun asked what she meant by “tried to”. The complainant said she “ ...little bit explain” and that she “…feel embarrassed. I was regretting everything so I was slowly explaining”. She said she told Nadun “I was so scared I don’t know what to do”. At the trial it was an agreed fact that if he had given evidence, Nadun would have said that the complainant told him that the appellant “had tried to do sexual harassment” and he removed her clothes to fulfil his sexual interest; and that the complainant told him she was “shocked and shamed”. The complainant gave evidence that after she had sent this message Sithara came into her bedroom and asked her if anything had happened between her and the appellant. The complainant told her that the appellant had kissed her. The appellant’s father then entered the room and the complainant told him the same thing. She gave evidence that she only said that he kissed her because she was scared and did not think they would believe her. The complainant said that the appellant’s father asked him to apologise to her. He did so. She was then asked to leave the house because Sithara did not want her staying there any longer. She packed her bags and departed.

Evidence

Evidence Before The Court

Section 34M of the Evidence Act provides:34M—Evidence relating to complaint in sexual cases(1) This section abolishes the common law relating to recent complaint in sexual cases.Note—See Kilby v The Queen (1973) 129 CLR 460; Crofts v The Queen (1996) 186 CLR 427(2) In a trial of a charge of a sexual offence, no suggestion or statement may be made to the jury that a failure to make, or a delay in making, a complaint of a sexual offence is of itself of probative value in relation to the alleged victim's credibility or consistency of conduct.(3) Despite any other rule of law or practice, evidence related to the making of an initial complaint of an alleged sexual offence is admissible in a trial of a charge of the sexual offence.Examples—Evidence may be given by any person about—• when the complaint was made and to whom;• the content of the complaint;• how the complaint was solicited;• why the complaint was made to a particular person at a particular time;• why the alleged victim did not make the complaint at an earlier time.(4) If evidence referred to in subsection (3) is admitted in a trial, the judge must direct the jury that—(a) it is admitted—(i) to inform the jury as to how the allegation first came to light; and(ii)as evidence of the degree of consistency of conduct of the alleged victim; and(b) it is not admitted as evidence of the truth of what was alleged; and(c) there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person, but that, otherwise, it is a matter for the jury to determine the significance (if any) of the evidence in the circumstances of the particular case.(5) It is not necessary that a particular form of words be used in giving the direction under subsection (4).(6) In this section—complaint, in relation to a sexual offence, includes a report or any other disclosure (whether to a police officer or otherwise);initial complaint, in relation to a sexual offence, includes information provided by way of elaboration of the initial complaint (whether provided at the time of the initial complaint or at a later time). In R v Jones,[26] the Full Court explained that s 34M was enacted to replace the common law relating to complaint evidence in sexual cases. Evidence of complaint was not admissible at common law as probative of any fact in issue. But evidence of proximate complaint (but not delayed complaint) was admissible at the instance of the prosecution to bolster or buttress the complainant’s credit. And evidence of delayed complaint was admissible at the instance of the defendant to detract from the complainant’s credit.[26] R v Jones [2018] SASCFC 80 at [107] (Kelly, Blue and Lovell JJ). In R v Usher,[27] Kourakis CJ said:[28]Section 34M of the Evidence Act abolished the common law with respect to recent complaint evidence in sexual cases and replaced it with a statutory regime. Section 34M expands the circumstances in which complaints are admissible, beyond the contemporaneity required by the common law, and leaves to the jury the evaluation of the significance (if any) of the evidence, subject to prescribed mandatory directions.[27] R v Usher (2014) 119 SASR 22.[28] R v Usher (2014) 119 SASR 22 at [48] (Kourakis CJ, Peek J agreeing).

Decision

Reasons for decision

We would refuse permission to appeal on ground 4.Conclusion We would refuse permission to appeal on grounds 1, 2 and 4, dismiss ground 3, and dismiss the appeal.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.