William John Davis and William Neville Hyland v R No. SCCRM 95/160 Judgment No. 5250 Number of Pages 8 Criminal Law and Procedure

[1995] SASC 5250

COURT IN THE COURT OF CRIMINAL APPEAL OF THE SUPREME COURT OF SOUTH AUSTRALIA DOYLE CJ(2), PRIOR(1) and DEBELLE(3) JJ

CWDS
Criminal law and procedure - particular offences offences against the person - Appeal against convictions for rape - Davis found guilty of two counts of rape, Hyland of three - three verdicts of not guilty in favour of Hyland - two by direction, one by verdict - grounds of appeal included complaint trial judge erred in his directions to the jury on the issue of intoxication and the complainant's previous inconsistent statements - trial judge gave general directions about the possible effects of intoxication upon a person's state of mind - further complaints including jury's verdicts unsafe.

Held: clear and specific directions as to the relevance of intoxication to the state of mind of the woman and the accused required - each count had to be dealt with separately, with precise directions and references to the evidence relevant to each particular charge - more than a general direction with respect to the possibility of actual consent was required - directions should have alerted jury to possibility that intoxication could make recollections inaccurate - case required directions with respect to complainants prior inconsistent statements - submissions as to inconsistencies between the acquittal on count one and the guilty verdict returned rejected - other issues on appeals not made out - convictions set aside - retrial ordered on counts 3,4, 6 and 7. Driscoll v R (1977) 137 CLR 517; M v A (1994) 181 CLR 487, applied. A v Wilson (1986)42 SASR 203; Bedi v R (1994) 61 SASR 269, considered.

HRNG ADELAIDE, 21 August 1995 #DATE 8:9:1995 #add 28:11:1995

Counsel for appellant Davis:        Ms M Shaw

Solicitors for appellant Davis:     J Adam Richards

Counsel for appellant Hyland:     Mr D H Peek

Solicitors for appellant Hyland:    Sykes Bidstrup

Counsel for respondent:             Mr P Brebner

Solicitors for respondent:         DPP (SA)

ORDER
Appeal allowed.

JUDGE1 PRIOR J The appellants were tried before a jury on an information charging the appellant Davis with two counts of rape and the appellant Hyland with six. The third count on the information charged Hyland with aiding and abetting rape by Davis. The jury returned verdicts of not guilty on counts two and five by direction of the trial judge. These were charges against Hyland alone. Hyland was found not guilty of the first count of rape. The jury convicted both appellants on the third count. Hyland was also found guilty on the fourth and seventh counts. The first of those rapes involved cunnilingus, that in the seventh count vaginal intercourse. The third and sixth counts charged Davis with vaginal intercourse. He was found guilty as charged. Thus, these appeals are against five verdicts of guilty with respect to four acts of rape.

2. The prosecution case was that on 22 April 1994, the appellant Hyland telephoned a seventeen year old woman, suggesting that she go with him to speak to her former boyfriend. The appellant Davis was with Hyland when the woman was picked up from her flat in a car. All three drove to an hotel. The woman smoked some cannabis before she got to the hotel and after she went with Hyland to Davis' flat. Hyland also smoked cannabis there then. Both had been drinking at the hotel, as had Davis. Hyland suggested that the woman go with him for a drive, to smoke some more cannabis. She agreed. Hyland got keys from Davis and drove to Davis' flat.

3. The young woman's evidence was that after sitting at a kitchen table with Hyland and smoking cannabis things changed. She felt uncomfortable with Hyland telling her to, "come over here". Her evidence was that she asked to go home, with Hyland grabbing her by the arm, pushing her from behind towards a bedroom, and then pushing her onto a bed and telling her to remove her clothes. She said that when she refused to remove some of her clothes, Hyland took some of them off. She removed her bra when told to do so because she was scared. Her evidence was that Hyland touched her all over, placed his fingers into her vagina and then licked it before the penile intercourse, referred to in the first count, occurred. Hyland then left the room. She heard voices before Hyland came back into the room with Davis following.

4. Davis did not go to the flat with Hyland and the woman. He arrived there later. The prosecution had alleged that by then the woman had been raped at least twice by Hyland. The first two counts referred to two such occasions. In his opening to the jury, the prosecutor told the court of two separate acts of cunnilingus before Davis became involved with the woman at the flat. The young woman's evidence was specific as to one of these two acts but she failed to give adequate evidence about the act relied upon for the second count in the information. This was said to have occurred after the sexual intercourse alleged in the first count. The direction to return a not guilty verdict on the second count was not opposed by the prosecutor.

5. The woman's evidence was that when Hyland came back into the room with Davis, Hyland held her down by the shoulders whilst Davis had vaginal sexual intercourse with her. After that rape had occurred, the two men left the bedroom with Hyland returning to perform another act of cunnilingus upon her followed by penile intercourse. The woman admitted in cross-examination that she had not told police of this alleged act of rape when making statements. She then agreed with counsel's suggestion that vaginal sexual intercourse did not occur then. Thus the trial judge directed the jury to return a verdict of not guilty on the fifth count.

6. As to the sixth count, the prosecution's case was that Davis then returned to the room and had penile intercourse with the woman. After Davis had penile intercourse, another man came into the room and placed his fingers into her vagina, with yet another man coming into the room whilst this third man was still on the bed with her. The second man was alleged to have had penile sexual intercourse with the woman, with the other man then attempting to have the woman perform an act of oral intercourse upon him. These two men left the room, with Hyland returning again to have penile intercourse with her. The seventh count in the information referred to this. The woman gave no evidence about a second act of intercourse by Davis until after she had said, in cross-examination, that she had seen him a second time at the flat. In re-examination she said that Davis had sexual intercourse with her again, with no one else then being in the room with them. She thought that this incident had occurred after Hyland had woken up and left the room.

7. The woman's evidence was that after the act of intercourse referred to in the seventh count, she and Hyland fell asleep. She was woken up when Hyland left the room. She heard voices in the kitchen. Then the first of the other two men, who had come into the bedroom earlier, returned with another person. That person had intercourse with her, then the first man put his fingers into her vagina. The woman left the house with those two persons. It was now early morning. She returned to her flat, at about seven or eight o'clock, waking her flat mate to get in. The police were called. On Anzac Day the woman was examined by a doctor at the Queen Elizabeth Hospital. Statements were taken by police. On 26 April, the woman went with police and identified the park to which she said she went before going to the hotel. She also pointed out a house at 19 West Street, Semaphore Park. There, there was a flat leased by the appellant Davis. When police searched these premises they located a shoe the woman was missing as well as her crop-top. The appellants were arrested. They declined to answer questions.

8. At the trial, both appellants gave evidence. The appellant Hyland said that he had told the woman's former boyfriend that he was going to ring his former girlfriend up. He denied that it was as part of an attempt to have the couple reconciled. He said he asked the woman if she wished to go out for a couple of drinks and that she agreed to that. When Hyland got in his car to go to pick up the woman, Davis was with him. His evidence was that he told Davis of his intention to pick the woman up after they had driven away from an hotel. Davis took over the driving because of his concern for the appellant's capacity to drive. On their way to another hotel they both consumed marijuana. Davis and the woman drank whisky at that hotel. Hyland drank Ouzo. Hyland's evidence was that both he and the woman had three drinks at the hotel. Hyland said that, at the hotel, he was kissing the woman on the forehead and on the hand and rubbing her thigh. It was his evidence that the woman did nothing to suggest that she did not want that to happen. He said he got the keys to Davis' flat after the woman had said that she wanted some more marijuana. Davis's flat was said to be some five minutes drive away.

9. At Davis' flat, Hyland said he gave the woman a cone of cannabis. She smoked it. He packed a cone for himself before packing another one for the woman at her request. Hyland said that at this stage he was "pretty stoned from the cannabis". He said he asked the woman to go into the bedroom with him and that she did so. He denied the woman's evidence that he had told her to go towards him when she was sitting at the kitchen table in Davis' flat. He denied her allegation that she was pushed in the back towards the bedroom. It was his evidence that he walked into the bedroom and that the woman followed him into it. He took the woman's shoes off but that she otherwise undressed herself, at his request. He admitted cunnilingus and vaginal intercourse. He insisted that it was with the woman's consent. Some five minutes after intercourse, Hyland says he heard the appellant Davis' voice. He went out into the kitchen, spoke to him there and then had some more marijuana. He was not aware of Davis' whereabouts for some ten to fifteen minutes, apart from hearing him in the toilet. He denied being in the bedroom, as the woman alleged, holding her down by the shoulders, whilst Davis had intercourse with her. It was Hyland's evidence that he was never in the bedroom with Davis. After Davis had left, Hyland says he returned to the bedroom, falling asleep with his arm around the naked woman. He said no sexual intercourse occurred between him and the woman then and that he was awakened by a man called Tim asking for Davis. Hyland was not cross-examined by Davis' counsel. Hyland called no other evidence in his defence. Davis did. His evidence was that he met Hyland at the Newmarket Hotel and got a lift with Hyland to the Leg Trap Hotel, just as he was leaving the Newmarket. He took over the driving because Hyland was driving erratically. He drove to a flat at Hyland's direction. The woman got into the car with them and had marijuana with Hyland before they got to the Leg Trap Hotel. Davis spoke of having had "a flirting conversation" with the woman at the hotel and learning that she had split up with her former boyfriend. He said he saw Hyland pretty close to the woman, "touching her on the leg, just mucking around and kissing her". His evidence was that he gave his flat keys to Hyland and went later that night to recover them, encountering Hyland coming out of the bedroom naked. After a conversation and a beer in the kitchen, he went to the toilet. Seeing the woman lying naked on the bed in the bedroom, he went into the bedroom and lay down on the bed, alongside the woman. He said he admired the woman's body and ran his hands down her inner thigh. There was "no negative response from her". He said he "just more or less wanted to see how far (he) could go". He admitted to touching the woman on her vagina and then having consensual intercourse with her. He denied that Hyland was ever in the room, holding the woman down, when he had intercourse with her. He denied the woman's evidence, that intercourse between them was over some twenty to thirty minutes. He said it was "just a quick sexual encounter", after which he returned to the kitchen. Hyland was there, "sucking on a pipe". He left the flat by taxi, returning later to find Hyland and the woman asleep on the bed. He came back for his wallet. He thought it must have fallen from his pocket when he took down his jeans to have intercourse with the woman. His evidence was that there was no one other than himself, the woman and Hyland at his flat when he was there that night. He denied the allegation of a second act of intercourse.

10. A man who was with Davis at the Leg Trap Hotel on the occasion the subject of the charges, spoke of seeing Davis give Hyland a key and leave with a woman that Hyland seemed be fairly "occupied" with at the hotel. This man gave Davis a lift to his flat. Another man spoke of seeing the two appellants with a woman. Two women were then called. The first said that Davis came to meet her at a girlfriend's house at about midnight. The girlfriend gave evidence to the same effect, as well as referring to occasions earlier in the day when she saw him with the other woman called. A third woman at the house, to which the appellant went after being with the co-accused, gave evidence to the same effect about the time when the appellant arrived to catch up with the first of these three women.

11. The appellants seek to set aside the verdicts on a number of grounds. They each complain of errors in the summing-up. The first is that the trial judge erred in his directions to the jury as to the approach to be taken to the issue of the effect of intoxication as it related to both the appellants and the complainant. They say that the trial judge failed to adequately identify the evidence relevant to the issue of intoxication and to relate the directions he gave to that evidence, both in respect of the appellants' state of mind and the complainant's conduct.

12. In his summing-up, the learned trial judge gave the jury general directions with respect to the possible effects of intoxication upon a person's state of mind. He told the jury that whether a person was affected by alcohol and drugs was particularly relevant to the question whether a person truly thought the woman was consenting to intercourse. As to the woman's evidence, the trial judge spoke of the jury having to consider whether it was a reasonable possibility that the effect of the liquor and drugs upon her was to loosen her self-control,
    "so that she did consent to intercourse and it's later urged
    that on coming, shall I say to her senses, she was ashamed
    and regretful and remorseful about what had happened, and
    made up her mind to make false allegations of rape.

That is something for you to reflect on and consider.
    Consider whether that is a reasonable possibility. Consider
    whether you believe it to be what happened or whether it was
    a reasonable possibility. If that is what happened, of
    course, then the accused are not guilty of anything."

13. In his directions, the trial judge did not direct the jury to consider whether or not any recollection of events was affected by the fact that the appellants and the complainant had been drinking and were affected by intoxicating liquor and/or drugs. The jury had to understand that intoxication was relevant to their assessment of the reliability of witnesses: Bedi v R
(1994) 61 SASR 269 at 273. There was no direction about that nor about the possibility of misunderstanding resulting from a combination of confusing signals given by an intoxicated woman and dulled perceptions of intoxicated men: R v Wilson (1986) 42 SASR 203 at 208. In that case, King CJ said that juries do not need much assistance from a judge as to the bearing of intoxication, particularly from drink, upon sexual behaviour. In Bedi, this Court pointed out that intoxication, whether induced by alcohol, drugs or a combination of both, may be relevant to a variety of issues in a criminal trial. If there is evidence of intoxication capable of having some bearing on such issues, it is the duty of the trial judge to identify that evidence for the jury and relate it to those issues with appropriate directions on the law. The observations in Wilson and Bedi are not inconsistent. The facts and circumstances of any particular case dictate the need for particular directions. In some cases general directions will suffice. In this case, the jury had to be alerted to the relevance of any intoxication of particular participants to particular ingredients of particular charges. The trial judge had to ensure that the defence case was clearly put to the jury against whatever the jury's ultimate view was about a particular person's intoxication. This case required clear and specific directions as to the relevance of intoxication to the state of mind of the woman and the accused. Each count had to be dealt with separately given the contests raised by the evidence before the jury. Admitted acts of intercourse were said to have been consensual. The circumstances surrounding the fourth count were denied by both appellants. Events after that would call for careful review against the jury's assessment of credibility and intoxication properly and fully explained. More than a general direction with respect to the possibility of actual consent was required. The jury should have been alerted to the possibility that recollections could be inaccurate because of a person's intoxication. This was a case where it was not sufficient to give the directions actually given. The particular significance of intoxication to the particular charges called for precise directions and references to the evidence relevant to each particular charge.

14. The second common complaint by the appellants relates to an alleged failure to adequately direct the jury as to the correct approach to and importance of the making of previous inconsistent statements by the complainant. The evidence of intoxication and the directions to return verdicts of not guilty on two counts are relevant to these issues.

15. At the trial, the complainant's evidence was at variance with the prosecutor's opening. It was also at variance with what police officers and a doctor said she told them on 25 April 1994. The complainant's evidence was that a bite mark on her neck had been put there by Hyland. In cross-examination, she said she was not sure if she had told the doctor that she did not know who gave her the bite mark. The doctor's evidence was that the complainant told her that she was bitten on the neck by one of her assailants but that she was not sure which one. There was evidence that the complainant told a police officer that she had been taken to a house near West Lakes by two men and vaginally raped on that occasion, after which she was taken to a house off Grand Junction Road, near the hills, where she was raped by five men. No complaint of cunnilingus at the West Lakes' house was made to that officer. The doctor said that the complainant told her that she was raped at one house by five males and then taken to another house where the same five raped her again. A statement was made to a second police officer in which the complainant spoke of cunnilingus having occurred at the first house. However, the circumstances as described in that statement differed significantly from the evidence given to the jury.

16. Early in the summing-up the trial judge told the jury that "in judging the truth and reliability of any witness" the jury was entitled to remember that it all happened a year before and that memory can be frail. He told the jury that the demeanour of a witness was something the jury was "entitled to call to mind" and then said:-
    "You are entitled to ask yourself what you would expect by
    way of evidence from a girl who had in fact been subjected to

    all that N claims she was subjected to. Would you be
    surprised if her memory on some aspect of the matter was
    faulty, or if she told police and others things that were
    somewhat different than what she told you? Call her to mind
    as she presented. Reflect on those matters."

17. Much later in his directions, the trial judge referred to the submissions put by Hyland's counsel to the jury, which suggested that her version of events could not be believed against her having told different things at different times. His Honour reminded the jury of what counsel had said to them and said that he did not need to go through that further as the jury would remember what counsel had said. A little later, the trial judge referred to the fact that counsel for both appellants emphasised that the woman had told different things at different times and that she made no real attempt to get away when there was such an opportunity. The only other reference to inconsistent statements was when the trial judge referred to submissions by counsel for Davis, that the woman had given:
    "three different versions to what happened, and how can you
    have any confidence in her if she can't stick consistently to
    one story. You may reflect upon whether any differences in
    her stories as told from time to time or any oddities might
    be explained by the terror and exhaustion of a young girl
    raped several times. That's something upon which to
    reflect."

18. At the end of his summing-up the trial judge referred to "differences in stories" of the woman, "absence of fleeing and other matters" all meriting the jury's most careful attention. Nowhere did the trial judge himself tell the jury that the whole purpose of seeking to contradict the woman was to show that she was unreliable in what she was then telling the jury.

19. In a case where credibility was crucial, the jury had to consider whether they were convinced about the truth of what the woman was then telling them against any inconsistencies apparent to them in what they were satisfied she had said on other occasions. It was not necessary to direct the jury to treat the woman's evidence as unreliable in light of any established inconsistencies. It was necessary to have the jury consider what reliance they were prepared to place upon her evidence given in the witness box against such inconsistencies as they found made out against previous statements: Driscoll v R (1977) 137 CLR 517 at 536 and 537. More so was this the case here when the intoxication of the woman at the time was a factor going not only to the question of consent but also recollection. More so too because of the variation between the evidence, the opening of the prosecution and the two verdicts of not guilty by direction of the trial judge.

20. This was a case where it was not enough to reiterate submissions of counsel. A direction from the judge was required in conjunction with references to evidence; not just of possible inconsistencies between what the woman was then saying and what she had said in April, but also as to any inconsistencies between her evidence and the case as opened to the jury. Intoxication may have been an explanation for some inconsistencies. That was not put to the jury though others were. Against the climate of the trial, the jury had to have more help than it was given. The trial has miscarried because of the failure to direct adequately on the matters raised by the first two grounds of appeal.

21. The other issues argued on the appeals are not made out. In particular, I reject the claim that the trial judge erred in failing to give any adequate warning as to the infirmities of the evidence of the complainant and the submissions put as to inconsistencies between the acquittal on count one and the guilty verdict actually returned. A jury properly directed could have had a reasonable doubt as to Hyland's state of mind on the first count because of the intoxication of those two then, but no doubt about things occurring as the woman alleged once Davis was in the room. I reject the argument that the verdicts are unreasonable or unsafe and unsatisfactory in all of the circumstances. On the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the appellants were guilty: M v R
(1994) 181 CLR 487 at 493-495. I also reject the argument that this is not a case for a retrial.

22. I would set aside the convictions and order a retrial on counts 3, 4, 6 and 7.

JUDGE2 DOYLE CJ I concur.

JUDGE3 DEBELLE J I am unable to agree with the conclusions of the majority of this Court. As I am in the minority, I will say little other than that, in my view, the directions to the jury were adequate and the criticisms of the appellants are not sustained. Viewed as a whole, the direction to the jury was very favourable to the appellants. On the whole of the evidence, the jury could be satisfied beyond reasonable doubt that the appellants had committed the offence: M v R (1994) 181 CLR 487. I would dismiss the appeal.