R v XH [2016] ACTSC 42

2. A Prasad direction will be given to the jury.

CRIMINAL LAW - Jurisdiction, practice and procedure - trial - application for directed acquittal - application for a Prasad direction

Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207

R v Pahuja (1987) 30 A Crim R 118

R v Prasad (1979) 2 A Crim R 45

1. In this matter, the accused, XH, has been charged with two counts on an indictment in the alternative, the first count being that of engaging in sexual intercourse with XU without his consent, being reckless as to whether he was consenting and the second being, in the alternative, that of committing an act of indecency on XU without his consent, being reckless as to whether he was consenting.

2. The events, the subject of these charges, are said to have occurred in the early hours of 22 January 2013 when XU said that he awoke from sleep feeling a burning sensation in his anus which he attributed, at some stage, to the penetration by a finger into his anus. When he awoke, XU says that he saw the accused tiptoeing away from where he was sleeping in the lounge room.

3. The defence, ably represented by Mr R Davies, has submitted that there is no case to answer on either of these charges. He points out that there is considerable inconsistency about the timing of the offences in that XU variously said that they occurred early in the morning, between the times of 3:30 am and about 5:00 am, differently stated in several statements that he made to police, in the evidence he gave at the trial that commenced yesterday but for which the jury was later discharged and then the evidence he gave to the jury today in the trial that continued.

4. This, the defence says, was completely inconsistent with other evidence in the case, in particular, the evidence of Ms Thornton, who was a friend of XU's sister. The significance of that is that XU says that when he woke up following the feeling of a burning sensation feeling, as he described it, "still somewhat groggy", he received a telephone call from Ms Thornton to the effect that his sister, TX, was having a heart attack and was being taken to hospital by ambulance for treatment for that condition.

5. It appears that Ms Thornton indicated that the telephone call that she made probably occurred at about 6:30 am to 7:00 am, and that has some consistency with the discharge summary of TX's admission and discharge from the Canberra Hospital which suggests, although the precise source of that information is unclear, that TX awoke at about 5:30 am and it was subsequent to her waking up that Ms Thornton saw her and called the ambulance.

6. It is also said that the evidence is that XU was wearing, at the time of the alleged incident, football shorts and underwear and that the statement that he gave to police, and from which he did not resile in his evidence, was that the touching of his anal area was over his clothes and not under his clothes.

7. It is suggested that these matters make the evidence of the charges is so weak that it is appropriate that a directed verdict be given in the circumstances. That is, Mr Davies submitted that there was no case to answer (a no case submission). It is also added that XU agreed that there was, arguably, some uncertainty about the precise cause of the burning sensation that he felt in his anus, which meant that it was possible that some cause other than the entry or the penetration of his anus by a finger was a possible cause.

8. The test for a no-case submission is a very high test. It is set out in Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207 at 214-5 where the court said:

It follows that, if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty.

9. In my view, that high test has not been met in this case. It is true that there are significant weaknesses and challenges in the prosecution case. Those weaknesses are not merely caused by the vagaries of memory and uncertainties as to timing and other such matters as would ordinarily be met in cases such as this. Nevertheless, those factors are relevant and I do note, in any event, that XU said that, at the time he awoke having felt the burning sensation, there was no-one else in the room and that he saw the accused tiptoeing away shortly after he was awoken, seeing him some distance away in the hallway of the building.

10. XU did say, expressly, that he concluded, and that was an inference but an inference is not impermissible evidence, that it was a finger penetrating him and he gave some evidence as to why he said that that was so. He did also acknowledge that he was not good at stating times and, although he was reasonably adamant about the precise times, he did indicate that he was not committed to any of the particular times.

11. He did say that the time the events happened, it was dark but he also said that the curtains were closed and, while he asserted that any light that came through was from the street light, that obviously would not be the only light that was available in the room. He said that there was enough light to see and that is how he saw XH, as he said, "tiptoeing away".

12. There was no evidence to suggest that a finger could not penetrate XU's anus, despite the fact that he was wearing shorts and underwear. Although there was some exploration of that situation in the evidence, it did not seem to me that it led to an evitable conclusion that it would not be possible for XH's finger to penetrate XU's anus should that be the method that was chosen.

13. Accordingly, in my view, the evidence does not fall so low that it would be consistent with the decision of the High Court in Doney for me to dismiss the indictment and direct an acquittal on these matters.

14. In addition, I was asked to give a Prasad direction if I was not content with a directed acquittal. A Prasad is a direction that is available to give to a jury following the decision of the Supreme Court of South Australia in R v Prasad (1979) 2 A Crim R 45 at 47 where King CJ said:

It is, of course, open to the jury at any time after the close of the case for the prosecution to inform the judge that the evidence which they have heard is insufficient to justify a conviction and to bring in a verdict of not guilty without hearing more. It is within the discretion of the judge to inform the jury of this right, and if he decides to do so he usually tells them at the close of the case for the prosecution that they may do so then or at any later stage of the proceedings: Archbold, Criminal Pleading and Practice 39th ed. (1976) p. 332. He may undoubtedly, if he sees fit, advise them to stop the case and bring in a verdict of not guilty. But a verdict by direction is quite another matter. Where there is evidence which, if accepted, is capable in law of proving the charge, a direction to bring in a verdict of not guilty would be, in my view, a usurpation of the rights and the function of the jury. I think that there is a clear distinction for this purpose between a trial before a magistrate or other court which is the judge of both law and facts and a trial by judge and jury.

15. In my view, this is one of those rare cases in which it is appropriate to give a Prasad direction and I propose to do so.

16. I am conscious, also, of what was said by the Supreme Court of South Australia by Cox J in the Supreme Court of South Australia in R v Pahuja (1987) 30 A Crim R 118 at 145 where His Honour said:

any Prasad direction should be put to the jury quite simply and shortly. It is not the occasion for any more than a passing glance at the law and a brief reference to whatever feature of the evidence it is that has led the trial judge to give the direction - usually some serious weakness in the Crown case that has emerged during its presentation.

17. I prepared a draft direction and read it to counsel, seeking their comments before delivering it to the jury.

18. [His Honour then directed the jury as follows]:

You have now heard all the evidence that the Crown wants to adduce in this case. At any time after the Crown has completed its case a jury may take the unusual step of stopping the case if the jury thinks that the evidence is insufficient to justify a conviction and to bring in a verdict of not guilty or on one or both of the charges in the indictment. It has been put to me that the case of the Crown is so weak or tenuous that I should give you this option at this stage. It is not an option that I am recommending that you take. Whether you do so or not is entirely a matter for you and you should not assume from my advice to you that it is available that you should take it or that you should not take it.

The elements of the offences that you have to consider have been briefly explained but I need to give you a little more information about that. The first count on the indictment of sexual intercourse without consent requires you to be satisfied of the following matters. First, that XH had sexual intercourse and sexual intercourse is not limited to penile/vaginal intercourse but includes the insertion of a part of the body, such as a finger, in someone else's anus. Secondly, that XH intended or meant to do the act of sexual intercourse, that is it was not an accident or he was not in a state of autonomism but that is not a real issue in these proceedings. XU did not consent to the act of sexual intercourse being committed on him and being asleep would be a position where you would not be in a position to consent.

XH was, when committing the act of sexual intercourse, reckless as to whether XU was consenting. In that sense, recklessness means either that XH knew that when he was committing the act, XU was not consenting, or that XH was aware of a substantial risk that XU was not consenting and, having regard to all the circumstances, it was not justified for XH to take that risk. That is the first charge.

The second is that XH committed an act that XH intended or meant to commit the act, that the act was committed on XU, that the act was indecent. Indecent means what right minded persons would consider to be contrary to the community standards of decency. The third element that XU did not consent to the act being committed on him. The fourth is that XH was, when committing the act, reckless as to whether XU was consenting.

The real issue in this case was did XH touch XU on the buttocks and around the anus area or insert his finger in the anus area and, if you say he did not insert it, if he did that act, was that indecent according to the ordinary standards of the community?

It has been said that there are stark inconsistencies in the Crown case, especially as to times. That is a matter entirely for you because you are the judges of the fact and what I am saying is simply to identify some issues that you need to consider and I am not giving you any directions as to how you consider those or what results you come out. XU put the events at various times in his police statement, in his evidence yesterday that was part recounted in the evidence before you today, particularly the cross-examination, and in his evidence today. But on all occasions he said it must have happened about 5:30 to 6:00 am, when he ordinarily woke up.

He was woken up, he said, fully by a telephone call from Ms Thornton who said to him that his sister, TX, was having a heart attack and was being taken to hospital. The evidence of Ms Thornton was that she rang him at some time after she got up and found that TX was unwell and she put that timing at about 6:30 to 7:00 am. The discharge summary which you have from the hospital when TX was discharged from the hospital, but also giving information about her admission, shows that she says apparently that she woke about 5:30 am and it also says that she was having an ECG about 6:53 am, by which time she was obviously in hospital and there is some time, obviously, before she gets to the hospital and gets into the hospital and so on. XU did say that he was not good at times but he did say that the events happened when it was dark and that he normally wakes up at about 5:30 to 6.00 am.

He did say that he felt a burning sensation in his anus and that his medical check-ups had shown no other cause but he was not able to say directly how that burning sensation was caused. He said he saw XH tiptoeing up the passage or the hallway in the house as he awoke, having felt the burning sensation and then hearing the telephone call. The case is circumstantial in that sense and you can only find XH guilty if there is no rational explanation consistent with his innocence. It is also pointed out that XU said that he felt fingers in his anus, but he also said that he had realised that it was XH's finger that caused the pain only some nine months ago. But he also said that he felt shame and confusion about what had happened. You must of course take into account all the evidence, if you want to proceed in this way, including the evidence of Ms Thornton, QI and Leading Senior Constable Beck, as well, obviously, as the evidence of XU in considering any decision as to whether you consider that, even taking the Crown case at its highest, you could not convict on this evidence. I emphasise again that that is entirely a matter for you and I am not recommending that you make a decision one way or another.

You may wish to retire and decide whether you consider, firstly, whether you want to consider this matter now or whether you want to go away and think about it and come back tomorrow morning. So when you retire what you need to decide is, first of all, whether you want to do that now or later but, if you decide to do it now or when you decide to do it later, you must consider whether you wish to hear the balance of the case, including the addresses of counsel and the directions by me, or whether you consider that the Crown's case is such that you could not convict at this stage. Of course, the decision must be unanimous. We do not have majority verdicts in this jurisdiction, you must all agree and while, of course, it is desirable that you do agree, you are all individual judges, as someone once said, and you must make your own decision and satisfy your own conscience as to how you wish to proceed.

If there are any questions you want to ask on this then you can ask me some questions and you do it in the way that I have suggested: write them down and through your foreperson tell the Sheriff's officer. I would like you to retire now and first of all consider whether you want to consider this matter now (it might take you some time) or whether you would rather disperse, it is inconvenient that it is at the end of the day and so on but whether you would like to disperse and come back in the morning and consider that matter then. I emphasise again I am giving you this option because it is appropriate in the case that I give this option to you but I am not recommending that you make a decision one way or another. That is, it is your decision that you have to make. So if you would now like to retire and let me know how you want to proceed?

I certify that the preceding eighteen [18] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.