SOUTH v REGINA [2007] NSWCCA 117 | Case summary

30 APRIL 2007 SOUTH v REGINA Judgment 1 HUNT AJA: The appellant, Scott Phillip South, was found guilty by a District Court jury on one count of sexual intercourse without consent in circumstances of aggravation, namely being in the company of another person, a crime which carries a maximum sentence of imprisonment for twenty years: Crimes Act 1900, s 61J. 2 The complainant, referred to at the trial as MD, was eighteen years old at the time. She had been friendly with Romaine Gallitari for some years. At about 10.00 pm on Monday 5 May 2003, she was invited by Leigh Perrin (a friend of Ms Gallitari, and at Ms Gallitari's instigation) to a party at a house in Campbelltown occupied by David Annabel. Three other young men were also present - Robert Shepherd, Daniel Willemsen and the appellant. 3 Shepherd stood trial with the appellant, and he was also convicted of aggravated sexual intercourse without consent and of an additional charge of aggravated indecent assault. Perrin pleaded guilty to the charge of aggravated sexual intercourse, and asked that the aggravated indecent assault be taken into account when he was sentenced. Willemsen and Annabel were charged in a separate trial with aggravated indecent assault, but the complainant declined to give evidence again, and they were discharged. 4 Some of those present at the party were drinking Jim Beam bourbon whisky and Coca-Cola. The complainant had one of these drinks. There was some light-hearted banter in which the men asked Ms Gallitari to expose her breasts. She declined to do so unless the complainant did also, but the complainant declined to participate and the matter was taken no further. 5 Someone (it may have been Perrin) poured a powdered amphetamine type substance he called "goey" into another Jim Beam and Coke. "Goey" is another name for "speed", or amphetamine. The complainant shared this glass with Ms Gallitari, drinking the major portion. She knew that it was a drug, and she wanted to try it to see what it was like. She then accepted a teaspoon of brown crystal which she was told was "pure straight speed". Because it tasted "horrible", she had a third Jim Beam and Coke to wash it down. 6 About five minutes after taking the second lot of drugs, the complainant felt "out of it", she could not think properly, and she just wanted to go to sleep. She then felt "weird" and dizzy, and she used her mobile telephone to call a male friend, whom she informed that her drink had been "spiked" - a statement which she conceded was untrue, in that she had not unknowingly consumed drugs. In cross-examination, she said that she had made the claim that the drink was "spiked" because she had not wanted her male friend to know that she had taken the drugs willingly. She asked the male friend to collect her but, as she did not know the address, he advised her to go outside the house, to find a street sign and to ring her again. Her friend gave evidence at the trial confirming this conversation. The complainant did not pursue the matter, she said, because the pre-paid credit on her mobile telephone had expired. She did not attempt to contact her friend with anyone else's mobile telephone. (There is evidence that she knew there was at least one other mobile telephone in the house.) She said that, because of the drugs she had taken, it did not occur to her to telephone her mother. 7 The complainant said that she returned to the lounge room, and she sat in the first empty seat she saw, which was next to the appellant. She said that she did not speak to him, she felt that she was "in her own little world", she was dizzy and "everyone looked like shadows". She heard Ms Gallitari say that she should be taken to the bedroom, and she was carried to a bedroom by Perrin, the appellant and Ms Gallitari. She was placed on the bed, and Ms Gallitari left the room. The complainant then saw that all five of the men were standing in the room, and that they had discarded their shirts. 8 The complainant said that Shepherd knelt in front of her and started to remove her pants. She said "no" and "what are you doing?". He continued to remove her pants and underpants, and then inserted his penis in her vagina, moving up and down whilst on top of her. The intercourse was, she said, against her will. She was menstruating at the time. Then the appellant did the same, followed by Perrin. Next, she was turned over on her stomach. A number of men individually placed their penises in her mouth, but she was unable to see which men had done so because of the position in which she was lying. Fingers were also inserted in her vagina. She could see Shepherd and a number of other men masturbating, but again because of the position in which she was lying she could not identify the others. Shepherd ejaculated, his semen going over her face and hair. Whilst the complainant was on her stomach, Perrin attempted to insert his penis in her anus, which hurt her and she shouted at him, possibly saying "no". 9 The complainant said that she had tried to stop the men from having intercourse with her, but that her body was "frozen" and she could not move. After the men had left the room, the complainant noticed semen stains and her own menstrual blood on the sheets. Ms Gallitari helped her find her clothes, and she went to the bathroom. Willemsen asked the complainant if she was alright, but she did not recall replying to him. Ms Gallitari and Shepherd advised her to have a shower; she merely wet her hair to remove the semen from it. 10 The complainant said that she returned to the lounge room, where she lay on the floor. The men were laughing at her, and they poured a cold liquid (which may have been liquor) over her. She told them to "fuck off". Ms Gallitari took her outside, where they sat on a mattress. The complainant asked for a drink and was given a Coca-Cola bottle from which she drank, but she spat the liquid out as it tasted and smelt like urine. The appellant joined them on the mattress. The sun was coming up at this time. (The complainant had been told by her mother that she should be home before 11.30 pm the previous evening.) 11 The complainant said that she went inside the house where the other men were waking up from their sleep. Perrin said to her, "you must have a sore mouth from sucking all those cocks". Although the Crown case was that the complainant had not willingly performed fellatio on the men, she made no reply. She asked Ms Gallitari when they were going home, but she did not reply. The complainant gave evidence that Ms Gallitari was angry with her because her boyfriend Perrin had had sex with her. The complainant said Ms Gallitari told her that she had a "crush" on the appellant and that she was angry that he had also had sex with her. She agreed in cross-examination that she had never told anyone else this before. She left the house at about 11.30 am with Ms Gallitari and Willemsen, who was dropped off at work somewhere near Campbelltown. 12 On the way home, Ms Gallitari stopped the car when the complainant said that her heart was racing and she could not breathe, her face was pale and her lips were blue. She said that she was unable to walk properly and that her hands were twisted and blue; she felt very sick. She collapsed when she tried to leave the vehicle. She requested Ms Gallitari to take her to a doctor, but this request was refused. Ms Gallitari had earlier asked her whether she wanted to go to a doctor, but she had declined because, she said, she was scared of what her parents would say and what would happen. But then her condition became worse, and she was frightened that she was going to die. They drove to Ms Gallitari's house nearby. The complainant collapsed at the door, but Ms Gallitari refused to take her to hospital. Ms Gallitari told her to have a shower, which she did. She was wearing other people's clothing because her own had been covered in semen and bloodstains. 13 The complainant said that her genitals and jaw were sore and that, when she sat with her legs crossed, she noticed she had bruises in her inner thigh. She fell asleep on Ms Gallitari's bed. She rang her father at 2.00 pm and told him that she would be home soon. However, she did not feel well enough to go home, and she lay down for more than two hours. When the complainant arrived home her mother asked her how she was, she went upstairs, and her mother followed and saw the complainant's enlarged pupils. She was asked what she had taken and at first she denied having taken anything, but then she confessed that she had taken "goey". Her mother directed her to have another shower and then took her to see a doctor. 14 The complainant was diagnosed as suffering tachycardia, with a pulse rate of 130 a minute and classic symptoms of a stimulant such as amphetamine. She made no complaint to the doctor about having been sexually assaulted, and there was no examination relevant to such an assault. She was then taken to hospital where she was placed on monitors and given a needle to relax her. The same diagnosis was made. She denied to the doctor that she had been sexually assaulted because, she said, that she was "all out of it" and could not speak properly, but also because her parents were there and she did not want them to know what had happened. 15 The complainant said that, on the following day, 7 May, she got into trouble from her parents about the incident, but the nature of the trouble that day was not disclosed in evidence. A week later, Stephanie Munzone, a friend, told her that their mothers had been talking, and she asked the complainant if she had any bruises on her thighs, to which the complainant replied "yes". The complainant told her friend that she had taken drugs, and that five men had had sex with her. Stephanie told the complainant that she should tell her parents about what had happened. The complainant told her mother that she had had sex and that she had said "No" when this had happened. The complainant's father was summoned home from work and notes were taken about what the complainant said had happened (her father worked as a security guard). The complainant said that she had not written down everything that happened because she was still embarrassed to tell her parents every detail. 16 Some days later, and on two different occasions, the complainant gave her father further details, including the names of the men involved (she named the applicant as one of them), and her father reduced these details to writing. The complainant then went to the police to report what she said had happened. She was examined by Dr Nittis, a female medical practitioner at the local Sexual Assault Service. This was on 15 May, ten days after the sexual intercourse had taken place. The complainant gave evidence that she had told Dr Nittis that she had a sore jaw, a sore genital area and more than a couple of bruises on both her inner thighs. She was sure that Dr Nittis had told her that she had seen bruising around her genital area. 17 The appellant's case put to the complainant, and denied by her, was that she had started dancing to the music after the drink with "speed" in it, that she had voluntarily entered the bedroom, that she said that she was "up for a threesome", in particular with the appellant and his co-accused Shepherd, and that she had had sex with the appellant by sitting on top of him on the mattress outside. In cross-examination by counsel for Shepherd, the complainant denied that she was "out of control" after taking the drugs. The complainant denied that she had alleged the intercourse she had was without her consent in order to defuse any problems she would have had with her parents by getting home late and having taken drugs. 18 Romaine Gallitari, the complainant's friend, gave evidence that she had had entered the bedroom and had seen the complainant lying on the bed with Perrin over her, which upset her as Perrin was her (Ms Gallitari's) friend. She saw the appellant in the room at the time. She ran from the room and cried. She later returned to the bedroom to see whether the complainant "was okay". She asked the complainant what she had been doing, and the complainant replied "Nothing, I'm having fun". She said that the complainant and the appellant went "out the back", and that the appellant had returned inside, followed shortly thereafter by the complainant. She had seen the two of them lying on a mattress with the complainant "cuddled up" to him. 19 The Crown was given leave to cross-examine Ms Gallitari as an unfavourable witness (Evidence Act 1995, s 38). She agreed that she was upset watching the complainant flirt with Perrin and with Perrin "flirting back". In cross-examination by counsel then appearing for the appellant, Ms Gallitari said that the complainant was encouraging both the appellant and Perrin to have sex with her. The complainant also sat on the knees of first one and then the other man, and then on the knees of both of them. The complainant had appeared to be happy with both men. She also appeared to be happy when she later "cuddled up" to the appellant. Ms Gallitari said that the appellant and the complainant may have been under a blanket together. At no stage after Ms Gallitari left the bedroom did she see the complainant appear to be distressed in any way. The two of them had been in each other's company for most of the night, and they seemed to be getting along "fairly well". Ms Gallitari said that she saw the complainant put her hands on the appellant's groin, but she agreed that she had not said this in her police statement. 20 The male friend the complainant had telephoned during the evening gave evidence that he had received the call and that, when he attempted to return the call, her mobile telephone was switched off. He subsequently visited her in hospital and asked her what had happened after she had telephoned him, to which she replied "Nothing". He agreed that he told the police that she had claimed "They are touching me", but said that he did not remember her saying so. 21 The complainant's general practitioner and the medical registrar at the hospital which she had subsequently attended both gave evidence that the complainant made no complaint of injury or of sexual assault. Neither doctor carried out a physical examination because no such complaint had been made. 22 Dr Nittis, who had examined the complainant after she had gone to the police, gave evidence that she had noticed a 7 mm wide green bruise on the complainant's right inner thigh. She did not see any bruising in the genital area. She said that she would have recorded any complaint by the complainant of a sore jaw or of pain, soreness or tenderness in the genital area, but she had not made any such record. Dr Nittis said that an inability to move is often the result of taking illicit drugs, and that, given the drugs the complainant had taken, it was very likely that she would have been unable to offer any type of physical resistance to sexual penetration. 23 Stephanie Munzone, the friend who had spoken to the complainant some ten days after the events in issue (see par [15] supra). She had asked the complainant whether she had been raped, and the complainant had said that she had been. The friend gave evidence that she had "pushed" the complainant to tell her how many people had been involved, and the complainant had said that there had been five or six. She asked the complainant to give her the names, and the complainant named two of the men, but did not mention the appellant. It had been Ms Munzone who persuaded the complainant to tell her mother what had happened. 24 The complainant's mother gave evidence of her daughter being dressed in different clothing when she arrived home, of being told by her daughter that she had taken something, and of the visits to the doctor and hospital. She had not observed any injuries, and the complainant had made no complaint of any injury either then or when they visited the general practitioner. She did not recall seeing any bruising on her daughter. It was ten days later that the complainant had told her that she had had sex but had not agreed to it. 25 The complainant's father gave evidence confirming the nature of the complaints made by his daughter at that time. 26 The officer in charge of the investigation, Det Sen Constable Southgate, gave evidence of taking a buccal swab from the appellant and that DNA testing did not reveal any connection between him and the seminal staining on the white top worn by the complainant on the evening in question, although there was a connection with each of the other accused. (This was of no significance, as the appellant accepted that sexual intercourse had taken place.) His interview was sound-recorded, as the video-recorder was defective. He said that he had sat with the complainant after she had consumed half of the drink with "speed" in it and had discussed her relationship with her boyfriend. After half an hour to an hour later, he asked the complainant whether she wanted to come to the bedroom. She had replied "Yeah, why, are we goin' to fuck?" 27 They went into the bedroom, the appellant said, and the complainant lay down on the bed whilst he went to the bathroom. When he returned, the other men followed him. Perrin attempted to have sexual intercourse with the complainant but she refused. Perrin had been unable to obtain an erection and he was "fingering" her. The complainant had told Perrin that she did not want him, she wanted the appellant. Shepherd had asked the complainant whether it was true that she wanted a threesome with the appellant and himself. She had said "Yeah". Shepherd and Willemsen attempted to have the complainant fellate them, but then left. The appellant said later in the interview that he had not seen them do this. He said that he had had penile/vaginal intercourse with the complainant, when she was "hoppin' on top of me and she was screaming out shit and all that". He also claimed later in the interview that he had been unable to obtain an erection at that stage and that the only thing he had done was to "finger" her. Subsequently that evening, the complainant had cuddled up to him when they were outside, and he said that the complainant had wanted have sex with him "again", and that "she was on top of him" and they were starting to have intercourse when the Perrin and Williamson had approached. Yet later that evening, the appellant said, the complainant was "all over him and trying to kiss and hug him". He said that he noticed for the first time that she was having her period. He was himself using a condom. 28 The appellant did not give evidence; he relied on the version he gave when interviewed by the police, that all sexual contact he had with the complainant was consensual. His case was also that the complainant was an unreliable witness and that her claim that the sexual intercourse was not consensual was in order to diffuse problems with her parents arising from her staying out all night and taking drugs. The evidence was that he was eighteen years of age, that he had no criminal record and was of good character. 29 The first ground of appeal is that the judge misdirected the jury concerning the possibility that the appellant mistakenly believed that the complainant was consenting to the intercourse which had taken place. The judge (Judge Williams) visited the issue of honest mistake on a number of occasions. When dealing with the issue of absence of consent, the judge said: The next thing the Crown must prove or must rule out is that each accused in respect of each particular offence knew that the complainant wasn't consenting and, more to the point, that there was no reasonable chance that any of the accused honestly but mistakenly believed that the complainant was consenting. That was a fair indication of what the law is. However, the judge went on to say: So if you honestly but mistakenly have a belief in a state of affairs that would make your conduct lawful as opposed to unlawful well you're entitled to rely on the mistake providing it's an honest mistake and providing it's reasonable and when looking at honesty and reasonableness you look at the situation from the perspective of the person concerned not from some sort of objective situation. You look at the position, the circumstances that the alleged offender found himself in the time. 30 The introduction of the concept of reasonableness was erroneous. It has long been the law in this State that the Crown must establish that the accused knew that the complainant was not consenting, and that, if the issue is raised in evidence, the Crown must negate any belief by the accused that she was consenting; the Crown does not succeed in doing so on the basis that the accused's belief was not based on reasonable grounds: Regina v McEwan [1979] 2 NSWLR 926 at 929 - following DPP v Morgan [1976] AC 182 at 203-204, 214-215, 237, 239 and overruling Regina v Sperotto (1970) 71 SR (NSW) 334 at 338. The High Court recently referred with approval to the law stated in DPP v Morgan, in Banditt v The Queen (2005) 223 ALR 633 where the joint majority judgment said (at [37]): In the present case, the trial judge properly emphasised that it was not the reaction of some notional reasonable man but the state of mind of the appellant which the jury was obliged to consider and that this was to be undertaken with regard to the surrounding circumstances, including the past relationship of the parties. 31 The next day, the judge returned to the issue of consent: The Crown also has to rule out any possibility or the possibility that there was a reasonable chance that the accused, each accused or either accused, honestly but mistakenly believed that the complainant was consenting because if they honestly but mistakenly believed the complainant was consenting they do not have what is called a guilty mind about the offence so the Crown has to rule that out and when looking at that you do not look at the situation objectively but you look at it from the state of the accused person's actual knowledge, not what some other person might have realised was happening at the time. That is also a fair representation of what the law is, but the judge did not correct his misstatement of the law the previous day. Moreover, the judge later returned to what he thought to be the major issues which should concern in the jury in this case and twice repeated the error. He said: It seems to me though that one of the other major issues that you are going to concern yourself [ sic ] with in looking at the facts is and revolves around the issue of consent or the lack of consent and/or the issue of recklessness. Now in regard to the issue of consent the Crown must prove to you beyond reasonable doubt that firstly the complainant did not consent, secondly that the accused in each case knew that she was not consenting, or that there is no reasonable basis for either of the accused in each case being honestly but mistakenly of the belief that the complainant was consenting, or that the accused, each of the accused, were reckless as to whether or not the complainant was consenting, and that recklessness comes about in a number of ways. […] When you are looking at the issue of recklessness and honest and reasonable mistake what you must look at is each accused's state of mind at the time and in the circumstances that existed at the time. You can't look back in hindsight. 32 Later in the day, as the judge summarised the arguments in relation to the concept of acting recklessly, he said: Essentially, as I have said, the Crown says you should believe the complainant and that you would be happy to accept her evidence even though there are some problems with it. The Crown says you that there is no reasonable possibility that either Mr Shepherd or Mr South thought that the complainant was or might have been consenting to what happened to her and that consequently there was no consent and that they were acting recklessly in the circumstances. Again, standing alone, that is a fair representation of what the law is, as the adjective "reasonable" was applied to the possibility that the accused had the relevant belief, and not to the belief itself. However, the judge did not correct his three misstatements of law which had preceded it. 33 What was the jury to make of this series of alternating contradictory directions? They asked no question of the judge. Both defence counsel appeared to be properly adept at taking objections to other directions, but neither of them took an objection to these three misstatements. This suggests to me that they must have been satisfied that the jury would have understood the law to be as the judge finally (and correctly) stated it. There would be many who might not have been so satisfied, but the atmosphere of a trial is rarely apparent from an appeal book. 34 Rule 4 of the Criminal Appeal Rules provides, inter alia, that no direction or omission to give a direction at the trial shall, without the leave of this Court, be allowed as a ground of appeal unless objection was taken at the trial to the direction or omission by the appellant. In order to obtain such leave, an appellant must first establish at least an arguable case of error - in this case, that there was a misdirection. Next, leave to rely on an error where no point was taken at the trial will be granted only where the appellant can demonstrate that the error led to a miscarriage of justice. There is a miscarriage of justice where, by reason of the error made, the accused may have lost a chance fairly open to him of being acquitted. The authorities are collected in Regina v Wilson (2005) 62 NSWLR 346 at [19]-[21]. 35 Because the absence of objection by counsel at the trial suggests that the final (correct) direction was the one the jury would have understood to be the law, I am not satisfied that there was in this case a miscarriage of justice in relation to the contradictory directions given by the judge on this issue. I would therefore reject the first ground of appeal. 36 The next ground of appeal is the appellant's complaint of the question asked of the jury by the trial judge in the course of his summing-up, "Why would she lie?". 37 In the present case, the inference was clearly open on the evidence for the jury to draw that the complainant's motive in claiming that she did not consent to the intercourse which had taken place was in order to defuse any problems she would have had with her parents by getting home late and having taken drugs. It was also open to the jury to accept her denial that she had such a motive. The issue was ventilated in the final addresses, and it would appear that that those addresses were directed mainly to the evidence relevant to that issue. 38 One of the issues raised by the accused was whether the complainant had been hallucinating as a result of the drugs she had taken and the alcohol she had consumed, an issue relevant to the accuracy or reliability of her evidence. When dealing with that issue, the judge said in his summing-up: The Crown says to you well why would you believe that she was hallucinating as to other things. The Crown says to you, and indeed I think [Counsel for Shepherd] said to you at one stage, and argument was put, the Crown says well why would [the complainant] be telling lies? [Counsel for Shepherd] says there are reasons why she may not be telling the truth. I do not know how productive it is to try and go down the path of trying to determine whether or not someone is telling lies. […] Whether or not someone is telling lies, is of course something that you may not be able to determine. The real question is whether, whatever the evidence is, you can rely on it. It may or may not be truthful, but if it is truthful it may still be unreliable. But the Crown says there are a number of reasons why you would not find that [the complainant] is lying, because why would she lie? She admitted to a number of things in cross-examination. The apparent incoherence of the second sentence of the first passage is overcome by the clarity of the second-last sentence of the second passage. 39 Objection was taken by counsel for Shepherd. The judge replied that he had in fact submitted to the jury that the complainant lied. Counsel correctly responded that, even if he had, he had never raised any issue as to why the complainant may have lied, and that it had been wrong for the judge to suggest that somehow there has to be proof by the accused of such a motive. The judge denied suggesting that there was such an onus and pointed out that he had said to the jury that it was "better for them not to even go down that path of considering whether someone's lying or not". 40 Counsel was, strictly, incorrect in saying that he had not raised the issue as to why the complainant was lying, for he had quite properly referred to the evidence on which he was basing the submission that the complainant's should not be accepted because of the motive identified above, in par [37] supra. But he was correct in saying that he had not made any submission that warranted the suggestion implicit in the question "Why would she lie?". On the other hand, the judge clearly did implicitly suggest to the jury by his question "Why would she lie?" that it was open to them to find that the complainant was telling the truth because the accused had not established a motive to tell lies. Whatever the jury may have understood by the advice quoted at the end of the previous paragraph, it would not have warned them to ignore the suggestion implicit in what he had said. 41 In Palmer v The Queen (1998) 193 CLR 1 at [8], the majority joint judgment said: To ask an accused the question: "Why would the complainant lie?" is to invite the jury to accept the complainant's evidence unless some positive answer to that question is given by the accused. As a matter of common sense, such an invitation is also extended to the jury where either the Crown prosecutor or the judge asks the jury the same question. 42 Where there is evidence that the complainant had a motive to lie, the jury's task is to consider that evidence and to determine whether, in the light of such of that evidence as they accept, they are nevertheless satisfied that the evidence given by the complainant of the commission of the offence charged is true. The jury's task necessarily does not include speculation as to whether there is some other reason why she would lie: Regina v Uhrig CCA 24 October 1996 [BC 9605087] at 15-16; Palmer v The Queen at [8]). Nor does the jury's task include acceptance of the complainant's evidence unless some positive answer to that question is given by the accused: Regina v F (1995) 83 A Crim R 502 at 511-512; Palmer v The Queen at [8]). 43 Both the Crown prosecutor and the accused are entitled to put arguments to the jury relating to the evidence of a motive to lie which has been asserted in relation to a witness in the particular case, and a satisfactory summing-up should include reference to those arguments: Regina v Uhrig at 16-17; Palmer v The Queen at [10]-[11]. To invite the jury to go beyond both the evidence supporting the asserted motive on which the accused relies and the evidence denying it on which the Crown relies, and to ask "Why would the complainant lie?" is to suggest to the jury that, in the absence of any other evidence beyond that on which the accused relies, they should accept the complainant's evidence. 44 The jury should never be asked to go beyond the evidence on which both parties rely to establish or refute a motive to lie and to consider the question "Why would she lie?". Such a question simply should never be asked. 45 The Crown relies on r 4 of the Criminal Appeal Rules, that the appellant did not take the point at the trial. Counsel for his co-accused did take the point, unsuccessfully. A principal purpose of the requirement of r 4 that no misdirection or non-direction may, without leave, be allowed as a ground of appeal unless objection was taken at the trial is to ensure that the trial judge receives the assistance of counsel to which he or she is entitled in the increasingly difficult task of giving appropriate directions to the jury. If a summing-up contains some error which could easily have been cured once the judge's attention had been drawn to it, if counsel for the accused to whose detriment the error operates fails to comply with his or her duty to draw the error to the judge's attention, and if the error has caused no miscarriage of justice, it can hardly be called appropriate to permit an appellant to seek a new trial on the basis of that error in the hope that he may do better with a different jury. The authorities are collected in Regina v Wilson at [24]. 46 However, where the point has been taken by the appellant's co-accused at the trial, so that the judge has been given the opportunity to cure the error made, it would be excessively technical to insist that r 4 denies the appellant the opportunity to appeal in relation to the error which remained uncorrected. The Crown's case depended almost entirely on the credibility of the complainant's evidence. The appellant was denied a fair chance of success at the trial by the question the judge asked the jury. The Crown's argument that the proviso should be applied has no merit. In my opinion, this ground of appeal should be upheld. 47 Normally, such a conclusion would lead to a new trial being ordered. However, the appeal does not end at this stage, as the third ground of appeal is that the jury's guilty verdict was unreasonable. If this ground is made out, the appellant is entitled to a judgment of acquittal. 48 Section 6 of the Criminal Appeal Act 1912 requires this Court to quash a conviction where that conviction is unreasonable or cannot be supported having regard to the evidence, and to direct the entry of a judgment and verdict of acquittal. Where it is asked by an appellant to exercise this power, the Court must make its own independent assessment of the evidence, and then consider whether, notwithstanding that as a matter of law there was evidence to sustain that verdict, it was nevertheless open to the jury on the whole of the evidence to be satisfied beyond reasonable doubt that the appellant was guilty, paying full regard to the circumstances that the jury is the body entrusted with the primary responsibility of determining the issue of guilt and that they had the benefit of having seen and heard the witnesses. This Court must be satisfied that the evidence on which the Crown case relied was cogent and unequivocal, and that it was not inherently implausible. Where the evidence appears on a reading of the record to contain discrepancies, display inadequacies, or lack probative force, its apparent lack of credibility may in many cases be explained by that advantage enjoyed by the jury. But, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, this Court is entitled and obliged to act on its own assessment of the nature and quality of the evidence if it is satisfied that, even making full allowance for the advantage enjoyed by the jury, there is a significant possibility that an innocent person has been convicted: Knight v The Queen (1992) 175 CLR 495 at 503, 511; M v The Queen (1994) 181 CLR 487 at 492-495; Gipp v The Queen (1998) 194 CLR 106 at [18], [128], [169]; MFA v The Queen (2002) 213 CLR 606 at [25], [30], [48], [55]-[56], [59]. 49 There was some confusion in the evidence as to whether the sexual intercourse between the appellant and the complainant took place in the bedroom or later outside the house on a mattress. The complainant asserted that it had happened in the bedroom. At one stage of the appellant's recorded interview with the police, he gave a graphic account of the sexual intercourse taking place in the bedroom. He then gave a slightly less graphical account of it taking place later outside the house. The recorded interview was the only evidence produced by the appellant. There was no attempt at the trial to deal with the possible confusion created by what he had said in that recorded interview. 50 The complainant gave evidence that she had not consented to the sexual intercourse wherever it had occurred. The version given by the appellant to the police challenged that evidence, as her behaviour described by him demonstrated that the sexual intercourse had been with her consent. Both that version and a wealth of other evidence at the trial raised a further issue, as to whether the Crown had established beyond reasonable doubt that the appellant knew that the complainant was not consenting to the sexual intercourse which had taken place, The Crown bore the onus of establishing that he did not have such a belief. 51 Considerable emphasis was placed by the appellant in this appeal on the absence of any complaint concerning his conduct until some ten days after the evening in question, and some emphasis was also placed on the evidence of the complainant's friend, Ms Gallitari, which (if accepted) strongly contradicted the complainant's claim that she had not consented to the intercourse which - it was not disputed - had taken place. (The evidence of the complainant's male friend that she had later told him that nothing had occurred to her before she telephoned him from the party - see par [20] supra - is of little value, as she did not allege at the trial that any sexual assault had occurred at that time.) 52 The Crown conceded at the trial that there were "some problems" with the complainant's evidence (see par [32] supra). Whatever legal consequences the complainant's consumption of alcohol and drugs may have had for the issue of actual consent, her behaviour resulting from that consumption was very relevant to the issue as to whether the Crown had established that the accused knew that she was not consenting. On one view of the evidence as it appears in the appeal book, the jury's guilty verdict is perhaps surprising. 53 However, it was open to the jury to disregard the evidence of Ms Gallitari on the basis that (as she conceded when cross-examined by the Crown prosecutor as an unfavourable witness) she had been upset that the complainant had also had intercourse with her friend Perrin (see pars [18]-[19] supra). It was also open to the jury to be unimpressed with the version of the facts given by the appellant to the police, which was to some extent confused and unexplained. The graphic description he gave to the police of the intercourse which had taken place, which could be construed as boasting, may not have impressed the jury. 54 Very detailed submissions were made to this Court on behalf of the appellant as to why the complainant's evidence ought not to have been accepted by the jury. Counsel sought to demonstrate in relation to a large number of answers given by the complainant that they ought not to have been believed. I am not persuaded by his endeavours that the relatively minor matters to which he referred demonstrate, even in their totality, that her evidence ought to have been regarded by the jury as unreliable. These submissions relied to a large extent on inconsistencies of a rather minor importance to the case against the appellant - such as whether Perrin did or did not have anal sex with her. I do not regard them as being of substantial assistance to the issues which this Court has to determine. 55 One matter of greater substance raised by counsel for the appellant was the complainant's failure to identify the appellant as one the men who had "raped" her when she first mentioned the sexual assaults to her friend Ms Munzone (see par [23] supra). However, it was never put forward by the complainant that the appellant was the principal offender amongst the five men charged. This was the first time she had spoken to anyone after the event about what she alleged had taken place ten days earlier. She did identify the appellant as one of the men involved very shortly thereafter, when her parents took notes of her account before a complaint was made to the police. 56 Another matter to which attention was drawn and to which reference should be made was the inconsistency between the complainant's evidence of bruising in her genital area and the later examination made by Dr Nittis (see par [22] supra). Her complaint of such bruising suggested that the intercourse with at least some of the men had been forceful, but the absence of such bruising when examined by Dr Nittis a substantial time later does not lead to any confident conclusion that the complainant had consented to the sexual intercourse which the appellant had with her. 57 In the end, the Crown case could well have depended solely on the credit of the complainant. Her account does not contain significant discrepancies or display significant inadequacies other than the complainant's failure to complain of being sexually assaulted for ten days. That failure to complain was the principal weakness of the Crown case. She could have complained when examined by her own doctor in relation to the drugs she had taken, but she did not, and she denied any sexual assault to the doctor at the hospital to which her own doctor had referred her. It was for the jury to assess whether the complainant's explanation - that she had not wanted her mother to know about the sexual assaults - denied the implausibility the failure to complain may have given to her evidence. On the face of it, her mother had by that time discovered her consumption of drugs and alcohol, and the complainant had little further to lose by stating that she had been unwillingly sexually assaulted when under the influence of those drugs and alcohol. 58 But those are issues of credit which were peculiarly for the jury to determine in this case, and full allowance must be made for the advantage enjoyed by the jury. Applying the principles stated in par [48] supra, I am not satisfied by the appellant that the jury's guilty verdict in this case was unreasonable. 59 I have read the judgment to be given by Simpson J, and agree with her (for the reasons she has given) that it was also open to the jury to find the appellant guilty on the basis that he was reckless as to whether the complainant consented to the sexual intercourse or not. It has not been demonstrated that a verdict based on such a finding was an unreasonable one. 60 Accordingly, I propose the following orders: 1. The appeal is allowed. 2. The appellant's conviction is set aside. 3. There is to be new trial of the indictment against the appellant. 61 SIMPSON J: I have had the advantage of reading in draft the judgment of Hunt AJA. I agree with the orders proposed by his Honour. I also agree with his Honour's reasoning in respect to Grounds 1 and 2. I agree that the third ground, the ground that the verdict is unreasonable, should be rejected. In relation to that ground, I wish to state my own reasoning. 62 In bringing the charge against the appellant, the Crown undertook to prove: (i) that sexual intercourse took place between the complainant and the appellant; (ii) that the complainant did not consent to the intercourse; and (iii) that the appellant had the requisite mental element for the offence - i.e. that he knew that the complainant did not consent, or that he was relevantly reckless as to whether or not she consented. 63 There was no issue in this trial that sexual intercourse had taken place between the complainant and the appellant. What was in issue was, firstly, consent; and secondly, if absence of consent was proved, the appellant's state of mind. As is apparent from the reasons of Hunt AJA in relation to the first ground of appeal, the appellant could not be convicted unless the Crown eliminated any reasonable possibility that he honestly (even if mistakenly) believed that she was consenting. 64 The first question is whether the Crown has proved beyond reasonable doubt that the complainant did not consent to the intercourse. If it fails to do that, that is the end of the matter, and the jury must return a verdict of not guilty. In this case, it is inherent in the jury's verdict that they accepted that the complainant did not in fact consent. Where the Crown does prove that the complainant did not consent, then a further question arises: has the Crown proved beyond reasonable doubt that the accused person had the requisite state of mind? That may be established by the Crown satisfying the jury that the accused had actual (explicit) knowledge that the complainant did not consent. But it may also be established by satisfying the jury that the accused was reckless as to whether the complainant consented or not. Recklessness is established where the Crown proves that an accused has not considered the question of consent, and that there is a risk that the complainant was not consenting to sexual intercourse and that that risk would have been obvious to someone with the accused's mental capacity if he had turned his mind to it: R v Tolmie (1995) 37 NSWLR 660. Tolmie is concerned with the mental element of the offence. It provides the Crown with an avenue to proof of the mental element that involves a state of mind in the accused less than actual, explicit knowledge that a complainant does not consent. 65 It is not every trial of a sexual intercourse charge that calls for a Tolmie direction. But this was, in my opinion, clearly such a case. 66 The complainant gave an account of the events of the evening that (if accepted by the jury) revealed that she had consumed both drugs and alcohol to which she was unaccustomed. The jury may well also have concluded that her condition was such that she could not realistically have consented. 67 The appellant's version of the events was given only in his recorded interview, some ten days after the events. His account varied dramatically from that given by the complainant: his exculpatory account suggested that the complainant was a more than willing participant; and also that she had rejected the overtures of his companions, reserving her consent only for the appellant. That was inconsistent, not only with the account given by the complainant, but also that given by Mrs Gallitari. The jury plainly rejected the appellant's version. 68 By reason of the complainant's alcohol and drug consumption, and her description of her conduct, this was a case in which it was open to the jury to find that a risk existed that she was not consenting to sexual intercourse, and that that risk would have been obvious to somebody with the appellant's mental capacity had he turned his mind to it. 69 Little attention was paid in the trial to the Tolmie principle. But the Crown Prosecutor, in his closing address, did advert to the notion of recklessness, without further elaboration, merely saying that he expected that the trial judge would give further directions on that issue. The judge did in fact give a direction along the lines of the decision in Tolmie. It was not, I acknowledge, as clear a direction as might be desirable. But it was sufficient to bring home to the jury the middle ground between actual knowledge that the complainant was not consenting, and the absence of a belief, honestly held (whether rightly or wrongly), that the complainant was consenting. This was a classic case for the application of the Tolmie approach. 70 I am satisfied that recklessness as to whether the complainant was consenting or not provides an adequate explanation for the jury's verdict. I am satisfied that it was, on this basis, open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt. 71 Accordingly, I would reject the third ground of appeal. 72 WHEALY J: I agree with the orders proposed by Hunt AJA. I agree also with his reasons and those of Simpson J. 73 ORDERS OF THE COURT: 1. The appeal is allowed. 2. The appellant's conviction is set aside. 3. There is to be new trial of the indictment against the appellant. ----------------------------------------

SOUTH v REGINA

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Judgment (12 paragraphs)

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Cases Cited (8)

Cited By (13)