R v Rogers [2008] VSCA 125

2 At the time the offence was alleged to have been committed, the complainant was 16 years of age. She was living in a one-bedroom unit in Noble Park, as were the applicant and others. The complainant returned to the unit on a summer evening to find the applicant, who was then 30 years old, and another occupant of the unit, both of whom had been drinking and smoking marijuana. Some hours later, the complainant, who had taken sleeping tablets, went to sleep in the bed in the unit's bedroom. She said at the trial of the applicant that she woke up to discover the applicant beside her. She was not wearing her jeans or underpants and felt wetness on the top of her legs, in the vagina and on the bed. The Crown contended, and the jury must have accepted, that the applicant had sexual intercourse with the complainant while she was asleep.

3 The principal Crown witness was the complainant. At the conclusion of the Crown case, the applicant stood mute and called no evidence. He had told the police that he had had sexual intercourse with the complainant. He did not state in clear terms that it was consensual intercourse. The general tenor of his answers suggested that he was unsure whether the complainant was or was not consenting.

4 The applicant seeks leave to appeal against his conviction. The first ground of the application is that the verdict is unsafe and unsatisfactory. The applicant relied upon two matters which were said to undermine the complainant's credibility to such an extent that it could not sustain the verdict.

5 The first was that in the course of cross-examination the complainant denied that she had 'done anything to suggest her sexual interest in' the applicant, whereas other persons present in the unit gave evidence that earlier in the evening the complainant gyrated on the laps of the applicant and two other men, and, when asked why she had let the applicant 'dry root her from behind', she said, 'He enjoyed it and I don't mind' that the applicant and the complainant sat on the couch, playing with each other's toes and conversing in an undertone, that the complainant rubbed her bottom in the applicant's lap, that the complainant was 'behaving in a sexual way with' the applicant, and that the complainant was 'dry humping' with the applicant.

6 The second matter was that the complainant was affected by a combination of alcohol and the drug, Serapax. There was evidence that the complainant drank cans of bourbon and Coca Cola during the evening, although no alcohol was found in her blood when it was tested at four o'clock the following morning. One witness agreed with counsel for the applicant that 'she was pretty drunk'. The complainant told her mother that she had taken two Serapax tablets. That evidence was corroborated by a doctor, who had read a toxicology report, analysing samples of the complainant's blood and urine. The doctor said that Serapax tablets made people drowsy and could also affect their memory. He went on to say that it was 'broadly unlikely' that the complainant's memory was affected, because a medical examination several hours after she took the tablets found her to be alert and oriented, not significantly affected by drugs or alcohol.

7 The matters advanced on behalf of the applicant were capable of affecting the credit of the complainant, but in my view neither of them, in isolation or in combination, led to the conclusion that it was not open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty. The jury could reject parts of the complainant's evidence and accept other parts. The trial judge so instructed them. I do not consider that the matters relied upon by counsel for the applicant do create a reasonable doubt as to the guilt of the applicant. In any event, the jury's advantage in hearing and seeing the evidence was capable of resolving any doubt.[1] The matters advanced on behalf of the applicant are not necessarily inconsistent with the complainant's evidence that she did not consent to sexual intercourse. It was for the jury, the body entrusted with the primary responsibility of determining the applicant's guilt or innocence, to weigh these matters in assessing the credibility of the complainant's evidence.

8 The second and third grounds of the application are that the trial judge erred in admitting evidence of the complainant's distress and in failing to warn the jury that the evidence should be given little weight.

9 The complainant said in her evidence that, when she woke up to find the applicant in her bed, her jeans and underpants had been taken off and she felt moisture on her legs and vagina, she 'freaked out'. She telephoned her mother and soon afterwards the police arrived at the unit. Another occupant of the unit said the complainant was crying and appeared distraught when she emerged from the bedroom. The complainant's mother said that she was crying and upset. A policewoman who attended at the unit said that the complainant was upset.

10 While counsel for the applicant conceded that evidence of distress was capable of amounting to corroboration of evidence of rape, he submitted that the evidence in this case was equivocal in that, as the complainant said she had no memory of penetration, she may have been upset because she did not know what had happened.

11 I do not consider that the evidence was equivocal. The complainant appeared to be upset on waking and being confronted with clear evidence that the applicant had had sexual intercourse with her, which she maintained was without her consent. The existence of another explanation for the complainant's distress did not render the evidence inadmissible. As Duggan J said in R v Mitrovic[2]:

Evidence of distress was not rendered inadmissible simply because of competing theories as to its cause.

12 Counsel for the applicant submitted that the trial judge erred in failing to tell the jury that, in the words of the Full Court in R v Flannery[3]:

Evidence of a distressed condition would carry little weight.

Counsel for the respondent relied upon the fact that her Honour did tell the jury that they were to be careful in drawing any inferences adverse to the applicant from the evidence of distress, and that, if there was another inference open on the facts that was consistent with an innocent explanation of the complainant's distress, no adverse inference could be drawn. No exception to this aspect of the charge was taken.

13 The question of the significance and use to be made of the existence of an explanation for distress is distinct from the question of the weight to be given to evidence of distress. However, even if it is incumbent upon a trial judge to tell a jury that evidence of distress is to be given little weight, in my view the trial judge's failure to give that direction was irrelevant in the circumstances of this case. The trial judge said, in the course of her charge:

Although distress can be corroboration of the complainant's version of events if it is equally consistent with the case for the prosecution and the defence, it is not corroborative of the complaint. The apparently distressed condition of the complainant can only confirm that story, or the version of sexual assault, if, in the circumstances of the case, it is reasonably explicable only on the basis of the sexual assault, or in this case rape, having occurred.

The effect of this direction was to deprive the evidence of distress of any weight unless the jury came to the conclusion that the complainant had been raped. Accordingly, I am of the opinion that the ground has not been established.

14 The last ground of the application is that the trial judge failed to sufficiently relate her directions on the law to the facts of the case.

15 The context in which this complaint is made is that of a very short trial, concerning facts within a small compass, with but two issues, and Crown and defence versions which were clearly distinct. Although in his oral submissions counsel for the applicant purported to rely upon the provisions of s 37 of the Crimes Act 1958, in my view it is clear that his submissions were confined to the common law requirement to relate the law to the facts. In dealing with the crucial issues of consent and whether the applicant was aware that the complainant might not be consenting, the trial judge drew the jury's attention to the evidence of the complainant's sexually suggestive behaviour and to evidence which arguably bore upon the applicant's state of mind. In my opinion, the trial judge was required to do no more than ensure that the jury properly understood the issues and applied the law in resolving them.

16 For the foregoing reasons, I would dismiss the application for leave to appeal against conviction.

17 I agree, with respect, in substance with what has fallen from the learned presiding judge, but wish to add to what has been said concerning the admissibility of the evidence of distress and the directions which the judge gave as to the use which the jury could make of that evidence.

18 As to the question of admissibility, I take the law to be that, if it were reasonably open to draw the inference that there was a causal connection between the alleged rape and the distressed condition of the complainant, the evidence of distress was capable of constituting corroboration and thus, subject to the overriding discretion to exclude it on the basis that its prejudicial effect exceeded its probative value, the evidence was properly to be left to the jury as capable of corroborating the complainant's testimony.[4] Here, in my view, there can be no doubt that it was open to infer that the complainant's distress was causally connected to the alleged rape.

19 The question of what, if any, weight was then to be given to the evidence was a matter for the jury; although, as has been observed, it has been held in this State and in some other States that, except in special circumstances, juries should be warned that evidence of distress will carry little weight.[5]

20 As has been observed, the judge in this case did not direct the jury in those precise terms, but instead told them that they could not treat the evidence as corroborative of the complainant's testimony unless satisfied that it was the only inference reasonably open on the evidence. If anything, however, that direction was too favourable to the applicant. For, unless corroboration of a complainant's testimony is an essential step in the process of reasoning which leads a jury to a conclusion of guilt, there is nothing in principle which prevents the jury from accepting the evidence as corroborative, despite the existence of competing inferences, and thus determining whether, when taken in conjunction with all other evidence, they are satisfied of guilt beyond reasonable doubt.[6] So too, as a matter of authority, it has been held that evidence of distress is capable of constituting corroboration of a complainant's testimony, despite competing theories as to its cause[7], just as other evidence is capable of corroborating a witness's testimony, despite competing possible explanations of the putatively corroborative facts.[8]

21 In the result, I too would dismiss the application.

22 I agree, for the reasons given by the presiding judge and my brother Nettle, that the application should be dismissed.

23 The order of the Court is that the application for leave to appeal against conviction is dismissed.

[1] See Moraz v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 493, per Mason CJ, Deane, Dawson and Toohey JJ.

[2] [1999] SASC 478.

[3] [1969] VicRp 72; [1969] VR 586, 591.

[4] See R v Flannery [1969] VR 586-591, R v Guilford [2004] NSWCCA 338; (2004) 148 A Crim R 558 at [151].

[5] See R v Flannery (ibid), R v Yates (1970) SASR 302 and R v Brdarovski [2006] VSCA 231.

[6] Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573, 584; Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193, 210.

[7] See R v Baskerville (1916) 2 KB 658 at 667, R v Mitrovic (1999) SASC 478 at [27] and R v Rossiter (1984) 1 Qd R 477 at 482.

[8] See, eg, R v Strachan [2008] VSCA 101 at [155].