Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal - Whether sufficient direction given on onus of proof - Whether proper direction on application of Criminal Code s 24 - Relevance of intoxication to honesty - Whether direction given about distress of complainant - Whether need to give such a direction - Whether grounds of appeal have reasonable prospects of success - Turns on own facts

Criminal Appeals Act 2004 (WA), s 9(2)

1 MILLER JA: This is an application for leave to appeal against conviction. For leave to appeal to be granted, the court must be satisfied that the ground has a reasonable prospect of succeeding: Criminal Appeals Act 2004 (WA), s 9(2). To have a reasonable prospect of succeeding, a ground must have a rational and logical prospect of succeeding, or a real prospect of success: Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473.

2 The appellant was charged on indictment that, on or about 4 March 2007 at Maddington, he sexually penetrated the complainant without her consent, by penetrating her vagina with his penis.

3 The appellant was tried in the District Court at Perth before a judge and jury and, on 7 February 2008, was convicted by verdict of the jury. He now appeals to this court against that conviction. Three grounds are contained within the grounds of appeal annexed to the appellant's case. They are as follows:

1. The learned trial Judge erred in law by not explaining to the jury that wherever she used the term 'satisfied' it meant 'satisfied beyond reasonable doubt' such that there was a miscarriage of justice.

1. The learned trial Judge erred in law when she failed to direct the jury correctly as to the relevance of intoxication to the defence of honest and reasonable mistake, specifically by failing to direct them that intoxication was relevant to the question of whether or not such a belief was honestly held by the accused, such that there was a miscarriage of justice.

1. The learned trial Judge erred in law by failing to give the jury any direction as to the use to which they could put the evidence of the complainant's distressed condition.

4 The facts of the case are well summarised in the trial judge's directions to the jury. The complainant testified that she was sexually penetrated on the night in question, while she was asleep on a bed. She said that she felt a sharp pain inside her vagina and realised from past experience that this must have been caused by a penis penetrating her. She thought that it was her partner who was responsible. She pushed him away and said, 'What are you doing?' As events transpired, it was not the complainant's partner, but the appellant who was there. The appellant said, 'I thought you wanted it'. The complainant said that the appellant got up and left the room. She followed shortly afterwards. She went outside to her partner and told him that the appellant had come into her room. She said that the appellant had 'got into my pants'. The complainant denied that she had flirted with the appellant at any time, or that she had given any indication to him on that night, or beforehand, that she wanted to have sex with him. She denied various assertions made by the appellant to the effect that she had said she was attracted to him.

5 The appellant did not give evidence at trial. However, he engaged in a video record of interview with investigating police. He said that, on the night in question, the complainant had given him every indication that she was interested in him. He said that she used words to the effect of 'you put me on fire'. He said that, whilst people were lying around the pool area of the house where the complainant was living, he (the appellant) had gone looking for her. He saw her lying on the bed with her pants and underwear pulled down to around her lower legs. He said her legs were open and he thought that the complainant was waiting for him. He removed the complainant's pants and underwear and lay on top of her, trying to place his penis into her vagina. He said that her vagina was too dry and he tried to lubricate it by spitting on his hand and wiping his hand across the lips of her vagina. He said that he tried to penetrate her vagina with his penis, but she said, 'Peter', and when he replied, 'No, it's Kris', she closed her legs and jumped off the bed.

6 The appellant's defence at trial was that there had been no sexual penetration of the complainant, but if there had been, it was with consent, or, alternatively, in circumstances where there was an honest and reasonable, but mistaken, belief that consent was being given.

7 This ground contends that the trial judge failed to tell the jury that whenever she used the term 'satisfied' she meant 'satisfied beyond reasonable doubt' and that there was, accordingly, a miscarriage of justice.

8 In my opinion, there is no substance whatever in this ground.

9 The trial judge made clear, on numerous occasions, the onus and standard of proof. She said at the outset that the burden of proving the charge was on the State and the standard to which it must prove the charge was beyond reasonable doubt. She reiterated that the jury could not convict the appellant unless the State had satisfied the jury beyond reasonable doubt that he was guilty of the charge preferred against him. Beyond reasonable doubt was said to be a high standard - the highest standard known to law. The presumption of innocence was fully articulated.

10 On numerous occasions thereafter, the trial judge told the jury that they had to be satisfied beyond reasonable doubt of the essential elements of the offence and, further, that the burden was on the prosecution to satisfy the jury beyond reasonable doubt that the appellant did not honestly and reasonably hold a belief that the complainant was consenting to sexual intercourse. The jury was also told that if, in consequence of anything the appellant said in his video record of interview, there was a reasonable doubt in their minds in relation to any one of the elements of the charge against the appellant, then he was entitled to the benefit of that reasonable doubt and could not be convicted.

11 At the conclusion of the trial judge's directions, her Honour made it clear that the jury's task was to decide whether the State had proven the charge beyond reasonable doubt.

12 I am unable to find anything in the trial judge's directions to the jury that suggests that mere 'satisfaction' would be sufficient to convict. To the contrary, the trial judge made it clear on numerous occasions what the onus of proof was and what the standard of proof was, articulating on every occasion that the standard was proof beyond reasonable doubt.

13 At the hearing of the application, counsel for the appellant made reference to the trial judge's directions to the jury on the question of inferences. Her Honour there used the word 'satisfy', but in the context of a standard direction on inferences, to the following effect:

Now, this is a criminal trial and the accused is presumed to be innocent until he is proved guilty beyond reasonable doubt. Therefore, before you draw an inference or come to a conclusion against Mr Prazmo, you must be satisfied that it is the only reasonable inference or conclusion that can be drawn consistent with the proven facts. It would not be proper for you to draw an inference adverse to Mr Prazmo unless you have reached the conclusion that such an inference is the only reasonable one open to you on the evidence. The circumstances which you find to have been established must be so as to exclude every other reasonable inference consistent with Mr Prazmo's innocence.

14 It will be observed that, in this passage, the trial judge prefaced what she said with the statement that the accused was to be presumed innocent until proven guilty beyond reasonable doubt.

15 Use of the word 'satisfied' in the context of a direction on inferences does not, in my view, support the proposed ground of appeal.

16 Counsel also referred to a passage in which the trial judge used the word 'persuaded', suggesting that this, too, took away from the proper articulation of the standard of proof. The passage is in the following terms:

Now, if the state has satisfied you beyond reasonable doubt of these three elements, then there is still another matter for you to consider, which goes still to the third element, and this is the question whether Mr Prazmo mistakenly believed that [the complainant] did consent to the sexual penetration. So even if the state has persuaded you that there was no consent, you still have to take another step and you have to ask yourself, has the state also persuaded you that Mr Prazmo did not have an honest and reasonable belief that there was consent.

17 Again, this passage is prefaced with the statement that the prosecution had to prove its case beyond reasonable doubt. I am therefore unable to conclude that use of the word 'persuaded' took away from that standard of proof.

18 There is no substance in ground 1 and it has no reasonable prospects of success. I would dismiss that ground.

19 This ground contends that the trial judge erred in failing to direct the jury correctly as to the relevance of intoxication to the defence of honest and reasonable mistake. The specific error is alleged to be a failure to direct the jury that intoxication was relevant to the question of belief.

20 The trial judge's direction on the question of honest and reasonable, but mistaken, belief included the following passage:

The honesty of an accused's belief requires an examination of his state of mind at the time of the act in question so you have to ask yourself did Mr Prazmo honestly believe that [the complainant] had given consent to the sexual penetration.

The second possible thing that the state can disprove is that the belief was reasonable. Now, the reasonableness of the accused's belief is an objective factor to be judged by the standard of a reasonable person of the same age, background and level of intellectual functioning as Mr Prazmo and familiar with all the circumstances that were known to the accused at the relevant time, so you have to ask yourselves how would a reasonable person in Mr Prazmo's position have assessed the consent by [the complainant]. Would that reasonable person have had a belief that she had given her consent?

In this case there is evidence that the accused, Mr Prazmo, had consumed alcohol before the events the subject of this charge. Intoxication does not provide support for the reasonableness of the accused's belief. In assessing the reasonableness of the accused's belief the effect of alcohol on him is not a relevant factor in support of the reasonableness of the accused's belief, so the question you have to ask yourself is whether the state has proven beyond reasonable doubt that an ordinary, reasonable, sober person in the position of Mr Prazmo would not have had the belief that [the complainant] was a consenting party. I have put the question in this way simply because the onus of proof of absence of honest and reasonable belief lies on the state.

21 There is no doubt that the trial judge was entirely correct in directing the jury that intoxication was irrelevant to the issue of reasonableness of the belief of the appellant: Aubertin v The State of Western Australia [2006] WASCA 229; (2006) 33 WAR 87 per McLure JA (Roberts-Smith and Buss JJA concurring) at [44].

22 The only question in this case is whether the trial judge was obliged to tell the jury that intoxication was relevant to the question of honesty. In my opinion, it was not necessary for that direction to have been given. As Wheeler JA pointed out in Gust v The State of Western Australia [2008] WASCA 166:

The reason for his Honour's emphasis on the issue of whether the appellant's possible belief was reasonable or not is, it seems to me, not difficult to understand. It would be a matter of fairly common experience that an intoxicated person may honestly believe something, but may do so wholly unreasonably. In the context of this trial, his Honour may well have considered that it would not be difficult for the jury to decide, one way or the other, whether there was a reasonable doubt as to whether the appellant held such a belief, but that they might need more assistance in relation to the question of whether such a belief could be considered to be reasonable. In any event, his Honour then went on to canvass at some length the factual differences in the evidence and the submissions made about that. Almost the last remarks which his Honour made to the jury about the question of mistake were those set out at [11] above. [17]

23 These observations are apposite to the present case. The trial judge told the jury, when summarising the prosecution case, that its case was that 'if [the appellant] genuinely believed that [the complainant] wanted sex, then it was not a reasonable belief'. It seems to have been assumed that the appellant may have had an honest belief, but the question was whether the belief was reasonable. The direction, in my opinion, sufficiently addressed this issue and I do not consider that the ground has any prospects of success. In my opinion, it should be dismissed.

24 This ground contends that there was a failure by the trial judge to direct the jury as to the use to which they could put evidence of the complainant's distressed condition.

25 The complainant did not say that she was distressed. She said that, when she realised it was not her partner who was with her on the bed, she closed her legs, jumped off the bed and went outside, and told her partner what had occurred.

26 Her partner, Mr Staszczak, testified that, when the complainant came outside, she was distressed. He said:

Okay, well, I want you to use her exact words if you can recall them, so what were her exact words?---'This wanker walked into the bed where I was sleeping.'

How was she appearing when she was saying this to you?---She was very - she was distressed.

What makes you say that she was distressed?---Because her voice was a little bit up, and me having known [the complainant] for nine years I would say that I will tell when she's distressed.

Okay, and did she say anything else?---No, I don't - I don't think so, no.

27 Mr Okomnuniewski, who was also present, described the complainant as 'shaken up'. He said:

You and Peter were out talking about cars. What's the net [sic] thing that you can remember?---After I [sic] while I seen Monica coming out of the house.

How did she look?---Sort of shaken up, and she was saying something - something happened to her.

Can you remember what she was saying?---What I heard first - she was talking to Peter first, then I approached her and said, 'What happened? What's going on?'

Yes?---She told me something - something happened.

Were those her words?---Yeah.

28 Although Mr Staszczak spoke of the complainant as being distressed, it appears that the distress was limited to the tone of her voice. Mr Okomnuniewski described her as 'shaken up', but no more.

29 The direction given by the trial judge on complaint simply related to the complaint that the complainant made to her partner after the alleged event. A proper direction was given that a complaint could not be proof that the event had occurred, but that the evidence was led to show consistency of conduct and could be taken into account in relation to the complainant's credibility: see Kilby v The Queen [1973] HCA 30; (1973) 129 CLR 460 per Barwick CJ at 472.

30 There are cases in which evidence of the distressed condition of a complainant has been considered to be of importance (see, for example, R v Flannery [1969] VicRp 72; [1969] VR 586), but this was not a case in which the distressed condition of the complainant was relied upon by the prosecution in any way.

31 In a case in which the distressed condition of the complainant is relied upon by the prosecution, there may or may not be evidence capable of amounting to corroboration of her testimony. Generally, however, authority would suggest that evidence of distress carries little weight: see R v Brdarovski [2006] VSCA 231; (2006) 166 A Crim R 366 at [42].

32 Whether or not a warning is required in a particular case will, in my view, depend upon the extent to which the prosecution relies upon evidence of distress (see Eades v The Queen [2001] WASCA 329 per Murray J at [34]).

33 This was not a case in which any importance was placed upon evidence of distress of the complainant, and, notwithstanding the evidence of Mr Staszczak that the complainant appeared distressed to him (because of her voice), I do not consider that the trial judge was required to do more than give a direction on the use to which evidence of complaint could be made. Her Honour could have given a direction which dealt with Mr Staszczak's evidence that the complainant appeared distressed when he saw her, but, in the context of the case, I do not consider that the trial judge erred in failing to give such a direction.

34 I therefore consider that ground 3 has no reasonable prospects of success and should be dismissed.