R v Saffoury [1998] VSCA 36

14. The indecent assault alleged in count 1 occurred, so the complainant said, at some stage before midnight when she had asked the applicant where she could find a drink of water. She said the applicant had directed her to a "Big M" van. Without warning he had grabbed the waistband of her pants with his left hand and had thrust the right hand down the front of them, inside her underpants, and had commenced to rub her vagina. She pushed him away, so she said, and walked off to find J, to whom she made a complaint.

17. Shortly after this she agreed that she had again come into the presence of the applicant and had agreed to exchange telephone numbers with him, the exchange being made by each writing the phone number on the other's arm with the aid of a pen secured from a police official. Immediately following midnight the applicant had grabbed her, so she said, and had pulled her into the base of a lighting tower which was covered with black plastic. She said that he had pulled her pants and underwear down and had pushed her on to the ground so that she was kneeling on all fours. Despite her protest, he had tried to penetrate her from behind. She said that he had then pulled her by the shirt and rolled her on to her back. Again she said that she was screaming and telling him to stop. He persisted and penetrated her "once for a second". She said that she had screamed more loudly and he had removed himself. These events were alleged by the Crown to support the offence of rape charged in count 2.

20. The complainant said that following the events which were said to constitute the rape, and whilst she was still within the confines of the base of the light tower, the applicant had pulled her up from the ground and had pushed her head towards his erect penis, saying, "Give me a head job". She had screamed, "I don't want this". These events were alleged by the Crown to support the offence charged in count 3, namely assault with intent to rape.

23. The complainant said that she managed to break free from the applicant and ran from the base of the light tower, pulling her pants up as she did so. She also said that at some stage during the events within the light tower she had noticed that the applicant had a condom on his penis. She said that shortly after she had emerged from the light tower she had spoken to another crowd controller. She was crying and asking for J. She complained that the applicant had "tried to make me have sex with him". She was then taken to the police.

26. Other witnesses to these events were called by the Crown. Some of them testified to the fact that they had seen the applicant and the complainant with their arms around one another during the course of the evening. Two of the witnesses gave evidence that the complainant was leaning against the applicant and appeared to be rubbing herself against him and generally being, as one witness described it, "very affectionate".

29. There was other material before the jury which suggested that there had been sexual contact between the applicant and the complainant. A used condom was found within the confines of the light tower which, when DNA tested, demonstrated body fluids from the applicant on the inside and from the complainant on the outside. There was also evidence from a medical officer who had examined the complainant and found an abrasion inside the lips of the vagina. There was also the police evidence that, when seen shortly following the alleged events, the complainant was crying and appeared very distressed.

32. On the following day the police had conducted a record of interview with the applicant, during the course of which, so it was said, he had demonstrated a reluctance to answer questions without being able to consult with members of his family. A voir dire had been conducted before the trial during the course of which counsel for the applicant had submitted that the interview should be excluded on the grounds of its involuntariness. His Honour declined to exclude it but admitted it into evidence in a heavily edited form. The answers which remained contained no admissions, but some of them were the subject of unfavourable comment by the prosecutor in his final address. It was suggested by the prosecutor that those answers had displayed what he called "an evasiveness" which reflected upon the applicant's "credibility". These comments led to an application being made by defence counsel, at the close of the prosecutor's address, for a discharge of the jury on the ground that the prosecutor had suggested in an unwarranted fashion that the jury could use the record of interview to suggest that the applicant was conscious of his guilt, when the answers, on any view, could not support such a suggestion. His Honour refused to discharge the jury, saying that any prejudice which might have flowed from the prosecutor's remarks could be adequately dealt with by him in his charge. This his Honour had later sought to do.

35. The case made for the applicant by his counsel at trial was that the events related by the complainant were consensual or, alternatively, that the applicant did not have the necessary mens rea in that the evidence did not prove that he was aware either that the complainant was not consenting or might not have been consenting. On the rape count it was also contended that there was no evidence of penetration. Indeed it was the applicant's case, made during the course of cross-examination of the complainant, that it was she who had instigated the events of the evening by following the applicant willingly into the base of the light tower, by unzipping his trousers and seeking to procure him to have intercourse with her, an intimacy which had been rejected, to her subsequent distress.

38. Following his Honour's charge to the jury, the jury retired to consider their verdict at about 12.15 p.m. on 15 May of this year. At about 3.30 p.m. his Honour reconvened the court to ask the jury whether they were likely to reach their verdict "in the short term". At that time the foreperson said that the jury had already reached unanimous verdicts on count 1 and 3 but were unable to agree upon count 2 (rape). The jury continued to deliberate until about 2 p.m. on Monday 18 May, when his Honour again brought them back to give them what has been called a "Black direction or exhortation": (Black v. The Queen [1993] HCA 71; (1993) 179 C.L.R. 44 at 51-52). His Honour also told the jury that they were entitled to return a majority verdict on count 2.

41. The jury retired again, only to return at 4 p.m. to say that they were "deadlocked" in respect of count 2. His Honour then took the verdicts on counts 1 and 3. The jury found the applicant not guilty on count 1 (indecent assault) but guilty on count 3 (assault with intent to rape). Before plea, the Crown entered a nolle prosequi in respect of count 2 and accordingly no re-trial on that count was ordered. After a plea, his Honour sentenced the applicant on count 3 to a term of imprisonment for two years and directed that the applicant serve a minimum of seven months before being eligible for parole.

44. The applicant now seeks leave to appeal against both the conviction and the sentence. In support of the appeal against conviction Mr Morrissey, in the course of his succinct and helpful submissions, argued three grounds. I will deal with each in turn.

47. The first ground is that there was a miscarriage of justice as a consequence of the failure by the judge to discharge the jury following the prosecutor's address. Mr Morrissey contended that, by declining to discharge the jury following the prosecutor's description of certain answers given by the applicant in his record of interview as "evasive" and as affecting his credibility, a miscarriage of justice was occasioned which was not, and could not have been, remedied by the trial judge's subsequent directions. It was Mr Morrissey's contention that the prejudice created by the prosecutor's remarks was not such that it could not have been dispelled by an adequate direction given immediately, but that, by the time the judge came to deal with it in his charge, the prejudice had been so deeply ingrained that nothing that the judge had said was able to avoid the injustice which had occurred. In support of this proposition he referred to the recent comments made in the decision of this Court in R. v. D.D.R. (unreported, 19 December 1997).

50. Even if the prosecutor's remarks could have been taken by the jury to be an allusion to something akin to consciousness of guilt, a conclusion in respect of which I am by no means convinced, it seems to me that counsel is asking this Court to attribute to those remarks a significance which the learned judge, who after all was in the best position to form a view, was not himself prepared to draw. The circumstances in which this Court will interfere with a trial judge's discretion in refusing to discharge a jury in circumstances such as those which occurred here are well known. I refer, by way of example, to R. v. Boland [1974] VicRp 100; [1974] V.R. 849, particularly at 866. The circumstances must demonstrate what has been called a "high degree of need" for such discharge. Whether such a need exists will depend upon the circumstances as seen by the judge in the context of the trial and the nature of the impugned material which is said to be prejudicial. However, and notwithstanding the position of primacy of the judge in such matters, there may be cases where an appellate court is driven to the conclusion that the exercise of the discretion adverse to the interests of the accused has occasioned the risk of a substantial miscarriage of justice: see, for example, Crofts v. The Queen [1996] HCA 22; (1996) 186 C.L.R. 427 at 440-441. But in my opinion this was not such a case. The learned judge, correctly, I think, took the view that the impugned remarks of the prosecutor were matters which, if they created any prejudice, could be conveniently dealt with in the context of his charge to the jury. His Honour thereafter dealt with the matter in his directions and told the jury that "in this case the record of interview is absolutely neutral and there is nothing in that interview which would justify you saying that anything that the man did at the police station indicated some awareness of his involvement in the case. ..The Crown case stands or falls on the evidence you have heard from the eye-witnesses".

53. Having regard to the nature and content of the impugned remarks and the stage of the trial at which they were made, I would not be prepared to say that his Honour wrongly exercised his discretion in dealing with the matter in the way in which he did. Indeed, in dealing with the issue in his charge, it seems to me that he avoided unduly highlighting a matter which could only have been of slight prejudice in any event.

56. In dismissing this ground of appeal on the basis which I do, it should not be thought that I agree with the conclusion to which the judge came that the prosecutor was disentitled from making the comments which he did. It seemed to be assumed that, because the applicant gave no evidence and gave no intelligible version of events in the record of interview, there was no basis for suggesting that what he did say in the interview impinged upon his credibility. The applicant had put his account of events in the course of cross-examining the complainant and other witnesses and in calling witnesses in support of his case. The answers which he made during his record of interview with the police, and upon which the prosecutor had commented, were of such a nature, as it seems to me, that they may well have been open to be used by the jury to test the credibility of that account.

62. Mr Morrissey next submitted that the conviction recorded on count 3 was unsafe and unsatisfactory. He submitted that the jury's verdict on this count was based on the uncorroborated evidence of the complainant and that such evidence contained discrepancies, displayed inadequacies and was of such a tainted nature and quality that it should lead this Court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted (M. v. The Queen [1994] HCA 63; (1994) 181 C.L.R. 487 at 494; Jones v. The Queen (1997) 78 A.L.R. 78; R. v. Noonan (Court of Appeal [1998] VSCA 8). Although it has been suggested that the recent decision of the majority of the High Court in Gipp v. The Queen [1998] HCA 21 has established a different unsafe or unsatisfactory test than the one laid down by the authorities to which I have referred, I agree with the view expressed by Batt, J.A. in the recent decision in this Court in R. v. Taafe (Court of Appeal [1998] VSCA 4) that it does not.

65. Although Mr Morrissey did not suggest that the jury's verdict on count 3 was inconsistent with its verdict on count 1, in the sense in which that term is understood by the law, he did contend that the verdict on count 1 suggests that the jury was not prepared to accept the complainant's evidence on that count and that that is a factor which should assist this Court to the view that their verdict on count 3 is unsafe and unsatisfactory. He submitted that the verdict on count 1 was a demonstration that the complainant's credibility had been so undermined by inconsistencies and improbabilities in her evidence, such as the exchange of telephone numbers, that we should be persuaded to the view that the jury ought to have entertained a reasonable doubt about the applicant's guilt on count 3.

68. Notwithstanding the powerful arguments advanced by Mr Morrissey in respect of this ground, I am by no means satisfied that it has been made good. Although it is true that both counts 1 and 3 depended for their proof largely upon the evidence of the complainant, there are logical explanations for the different verdicts which are consistent with the jury's acceptance of the complainant generally as a witness of truth. The events constituting count 1, which had occurred outside the confines of the light tower and in circumstances where others were present and able to depose to an apparent affectionate relationship between the two of them, could well have led the jury to entertain a reasonable doubt about the awareness of the applicant as to the consent of the complainant. But the existence of such a doubt did not, in my view, preclude the jury from concluding that the complainant was telling the truth when she said she had made it abundantly clear to the applicant that she was not consenting to his demand for oral sex inside the confines of the light tower. The jury were told by the learned judge that they were to give independent consideration to each of the counts and that they were not bound to accept the whole of a witness's evidence. They were entitled to have regard to the evidence that the complainant had emerged from the base of the light tower in an extremely distressed state. This was not a case where there was either an absence of, or delay in, complaint. The sorting of the evidence against the background of directions as to burden and standard of proof is the stuff of juries. It is not for the Court of Appeal to stifle their constitutional function by substituting its views for theirs, save and except in the rare case where the Court can safely conclude that the nature and quality of the evidence upon which their verdict was based was such that they should have entertained a reasonable doubt. This, in my view, was not such a case. There is nothing which suggests to me that their verdict on count 3 was unsafe or unsatisfactory in the sense which I have described.

74. It was next submitted by Mr Morrissey that the learned judge had failed to adequately direct the jury as to the ingredients of the offence of assault with intent to rape. This offence is now to be found in s.40 of the Crimes Act 1958, which, by sub-s.(2), provides that assault has "the same meaning as in s.31(1)" of the Act. Section 31(1) creates a number of offences, which include:

(a) assaulting or threatening to assault another person with intent to commit an indictable offence;

(b) assaulting, threatening to assault, resisting or intentionally obstructing (inter alia) a member of the police force in the execution of his duty;

(c) assaulting or threatening to assault a person with intent to resist or prevent the lawful apprehension or detention of a person.

"In sub-section (1), "assault" means the direct or indirect application of force by a person to the body of, or to clothing or equipment worn by, another person where the application of force is -

(b) with intent to inflict or being reckless as to the infliction of bodily injury, pain, discomfort, damage, insult or deprivation of liberty -

and results in the infliction of any such consequence."

87. In this case the learned judge directed the jury that, before they could convict the applicant of the offence charged in count 3, they had to be satisfied that he had assaulted the complainant and that, at the time of the assault, the applicant intended to commit oral rape. It is not suggested that his Honour's directions in this regard were in any way deficient. What Mr Morrissey contends is that the judge failed to direct the jury of what he called the "intermediate intent" which, as he submits, s.31(2) of the Act creates, namely an intent to inflict (inter alia) bodily injury, pain, discomfort, damage or insult. In other words it was his submission that the combined force of ss.31(2) and 40 of the Crimes Act required, before the offence of assault with intent to rape could be proved, firstly an assault which intended (inter alia) discomfort and insult as well as an intent to rape.

90. In my view such a construction is reading too much into the sections in a case such as the present where a finding of the alleged intention to rape necessarily involved a finding of the intent to inflict one or more of the detriments specified in s.31(2)(b) of the Act. In those circumstances proof of the so-called "intermediate intention" is subsumed by proof of the ingredient of the intent to rape. In other words if the facts of the case at hand demonstrate an intent to commit an offence which would, if committed, necessarily involve an intention to inflict one or more of the aforesaid detriments referred to in s.31(2)(b), it is sufficient for the trial judge to direct the jury that they must be satisfied of the intent to commit such offence. In this case, before the jury could have convicted the applicant of the offence charged in count 3, they had to be satisfied, as Mr Morrissey conceded, that the applicant forcibly and without her consent took the complainant's head and pushed it towards his exposed penis whilst uttering the words "Give me a head job". Because those findings evidenced not only an intent to commit oral rape, but involved, at a minimum, an intention to inflict discomfort and bodily insult to the complainant, it was sufficient for the judge to instruct the jury that they should be satisfied to the required standard that the applicant, at the time when he assaulted the complainant, intended to orally rape her. That is what he did and, in my view, he needed to do no more.

93. Ground 5 therefore fails and, with it, the application for leave to appeal against conviction.

96. The applicant also seeks leave to appeal against the sentence imposed. It was contended that his Honour had made a finding of fact that the complainant had been dragged by the applicant into the base of the light tower. It is sufficient for me to say that, upon a proper appreciation of his sentencing remarks, his Honour made no such finding. Nor, in my view, was his Honour in error, as is now submitted, in describing this offence as an "ugly" instance of the offence of which the jury had convicted. It means no more than that a forcible attempt to commit oral rape upon a 17-year-old virgin is an ugly example of the offence described in s.40 of the Crimes Act.

99. Mr Morrissey submitted that, in all the circumstances of the case and the evidence which was before him, the sentencing judge had imposed a sentence which was manifestly excessive. I cannot agree. The sentence imposed was well within the range of sentencing options open to his Honour.

102. I would accordingly dismiss the application for leave to appeal against sentence.

107. I agree that the applications should be dismissed. In relation to ground 1, if there was error in the prosecutor's comments on the applicant's responses during his interview - and I do not decide that there was - that was overcome by the direction that was given. As for the rest, I agree in what the learned President has said.

111. I agree that the applications should be dismissed, for the reasons stated by the learned President.

116. The formal order of the Court will be that the applications for leave to appeal against conviction and sentence are dismissed.