Supreme Court of SA|1991-06-06|Before: Matheson J, King CJ

THE QUEEN v. KEVIN JOHN BALL, PETER ALAN BUNCE and ROBERT JAMES CALLISS Nos. 51, 55 and 52 of 1991 Judgment No. 2884 Number of pages - 13 Criminal law - multiple offences of rape (1991) 56 SASR 126 [1991] SASC 2884 (6 June 1991)

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL KING CJ(1), MATHESON (2) AND COX (3) JJ

CWDS Criminal law - multiple offences of rape - defence of consent - evidence that appellants were under the influence of intoxicating liquor and drugs at relevant time, but intoxication not an issue during trial - direction by trial Judge on issues of reckless indifference and intoxication in response to questions raised by the jury towards the end of a lengthy retirement - whether the trial Judge misdirected the jury - duty of a trial Judge to put to the jury any defence that fairly arises on the evidence - whether a case for the application of the proviso to s.353(1) of the Criminal Law Consolidation Act - appeal allowed and new trial directed.

HRNG ADELAIDE, 20 March 1991 #DATE 6:6:1991 Counsel for the appellants: Mr. D. H. Peek Solicitors for the appellants: Mangan Ey and Associates Pty. Ltd. and Andersons Counsel for the Attorney-General: Mr. P. J. L. Rofe, Crown Prosecutor Solicitor for the Attorney-General: B. M. Selway, Crown Solicitor

JUDGE1 KING CJ I agree that this appeal should be allowed and a new trial ordered for the reasons given by Justice Matheson. 2. In The Queen v. Evans (1987) 48 SASR 35 at 41, I expressed the opinion that a trial judge is not required to give an explanation of the expression "recklessly indifferent" unless that is required by the circumstances of the case. In many cases, reckless indifference is not a live issue, and the expression is used by the judge only for the purpose of giving a complete account of the elements of the crime. Clearly in such cases no explanation is called for. Where reckless indifference is a live issue, it is wise to give the jury an explanation of its meaning along the lines of the judgment of Bray CJ in The Queen v. Wozniak and Pendry (1977) 16 SASR 67 at 74, but, in my opinion, omission to do so will not in all such cases be a fatal defect in the summing up. Where, however, reckless indifference is a live issue and the trial judge has not elaborated on the expression by way of explanation of its meaning, it will be necessary to scrutinize the charge closely in order to determine whether it amounts to an adequate explanation of law having regard to the circumstances of the case. 3. In the present case, the jury's question indicates that the issue was under consideration and that there was some concern about the meaning of reckless indifference. In those circumstances I think that an explanation along Wozniak and Pendry lines was essential. In the circumstances, the direction which His Honour gave cannot be regarded, in my opinion, as an adequate explanation of the law as it applied to the case. 4. Similarly the jury's question called for a full direction as to the bearing of intoxication upon the case. In particular it was necessary to inform the jury that in assessing the state of mind of the accused persons in relation to whether the alleged victim was consenting, they were required to have regard to the possible effect of intoxication upon their thought processes and upon their perception and interpretation of the alleged victim's words and actions.

JUDGE2 MATHESON J The appellants were charged on an information containing eleven counts of rape. I would not normally quote it in full, but for reasons which will appear, I think it is necessary to do so here: " First Count Statement of Offence Rape. (Section 48 of the Criminal Law Consolidation Act, 1935.) Particulars of Offence Robert James Calliss aided and abetted by Kevin John Ball and Peter Allan Bunce between the 16th September, 1989 and the 19th September, 1989 at premises situated at 68 Aroona Road, West Croydon, in the kitchen, had sexual intercourse with Natasha Jayne Richter, without her consent, by inserting an object into her vagina. Second Count Statement of Offence Rape. (Ibid.) Particulars of Offence Kevin John Ball, Peter Allan Bunce, and Robert James Calliss between the 16th September, 1989 and the 19th September, 1989 in the bedroom of the said premises had sexual intercourse with Natasha Jayne Richter, without her consent, by inserting an object into her vagina. Third Count Statement of Offence Rape. (Ibid.) Particulars of Offence

Kevin John Ball, Peter Alan Bunce and Robert James Calliss between the 16th September and the 19th September, in the bedroom of the said premises, had sexual intercourse with Natasha Jayne Richter, without her consent, by inserting an object into her anus. KEVIN JOHN BALL is charged with the following Offences Fourth Count Statement of Offence Rape. (Ibid.) Particulars of Offence Kevin John Ball between the 16th September, 1989 and the 19th September, 1989 in the bedroom of the said premises, had sexual intercourse with Natasha Jayne Richter, without her consent, by causing her to perform fellatio. Fifth Count Statement of Offence Rape. (Ibid.) Particulars of Offence Kevin John Ball between the 16th September, 1989 and the 19th September, 1989 in the bedroom of the said premises, had sexual intercourse with Natasha Jayne Richter without her consent by placing a finger in her vagina. Sixth Count Statement of Offence Rape. (Ibid.) Particulars of Offence Kevin John Ball between the 16th September, 1989 and the 19th September, 1989 in the bedroom of the said premises, had vaginal sexual intercourse with Natasha Jayne Richter, without her consent. PETER ANNAN BUNCE is charged with the following offences Seventh Count Statement of Offence Rape. (Ibid.) Particulars of Offence Peter Allan Bunce between the 16th September, 1989 and the 19th September 1989 in the lavatory of the said premises, had sexual intercourse with Natasha Jayne Richter, without her consent by causing her to perform fellatio. Eighth Count Statement of Offence Rape. (Ibid.) Particulars of Offence Peter Allan Bunce between the 16th September, 1989 and the 19th September, 1989 in the bedroom of the said premises, had sexual intercourse with Natasha Jayne Richter, without her consent, by placing a finger in her vagina. Ninth Count Statement of Offence Rape. (Ibid.) Particulars of Offence Peter Allan Bunce between the 16th September, 1989 and the 19th September, 1989 in the bedroom of the said premises, had vaginal

sexual intercourse with Natasha Jayne Richter, without her consent. Tenth Count Statement of Offence Rape. (Ibid.) Particulars of Offence Peter Allan Bunce between the 16th September, 1989 and the 19th September, 1989 in the bedroom of the said premises, had sexual intercourse with Natasha Jayne Richter, without her consent, by causing her to perform fellatio. ROBERT JAMES CALLISS is charged with the following Offence Eleventh Count Statement of Offence Rape. (Ibid.) Particulars of Offence Robert James Calliss between the 16th September, 1989 and the 19th September, 1989 in the bedroom of the said premises, had vaginal sexual intercourse with Natasha Jayne Richter, without her consent." 2. At the end of the trial, the Judge summed up, and the jury retired at 12.21 p.m. At 4.49 p.m., his Honour brought the jury back into court, and the following conversation occurred: " HIS HONOUR: I'm sorry to interrupt you but I just thought I'd ask you back as you've been out now for a period that has significance - that is to say more than four hours - to ask if you need procedural assistance. I apprehend that the jury appreciates that now the four hours have elapsed, what we call 'a majority verdict' can be entered. You follow that, do you? The jury understand that all right? Do you think that if you were given more

time you would come to a verdict on one or any of those charges, or do you feel opinion is deadlocked? FOREPERSON: I feel that the opinion is deadlocked in the matter. HIS HONOUR: You feel you've exchanged your views and discussed your views thoroughly and no more time would be of help. FOREPERSON: My thought is they would like some more time, your Honour.

JURY RETIRE 4.50 P.M." 3. At 5.37 p.m. the jury returned and the following conversation occurred: " HIS HONOUR: Do I correctly understand that you are ready with the verdicts? FOREPERSON: No. We would like some more time. If I may ask could

you give a ruling on the terminology of 'reckless indifference'. HIS HONOUR: Yes. Reckless indifference is part of the third element of the crime of rape. The first element is sexual intercourse, the second is the Crown being required to prove lack of consent by the girl and the third is knowledge on the part of the accused person that the girl is not consenting at the time of penetration or alternatively, if he doesn't actually have this knowledge, if his conduct demonstrates that he is recklessly indifferent to whether the girl is consenting or not and goes on with the act, that constitutes the third element in the crime of rape. Was that clear enough? FOREPERSON: Does that also infer that if that gentleman is under the influence. HIS HONOUR: It's a question of degree. If a man is so much under the influence of alcohol that he cannot form any intention to perform the crime and does it like, as it were, a sleep walker then, of course, he is not guilty. If his consumption of alcohol makes himself incapable of appreciating that the girl is not consenting and is incapable of being indifferent to her wishes, then he is not guilty but he needs to be substantially under the influence of alcohol to reach that stage and you would need to examine the facts of what a man did to consider whether a man who had consumed alcohol had got himself to that stage. Does that help do you think? More time then, of course." 4. The jury retired at 5.40 p.m. They returned to court at 8.28 p.m. and the following verdicts, all majority verdicts, were given: "VERDICT (Count 1) (As to Ball) NOT GUILTY VERDICT (Count 1) (As to Bunce) NOT GUILTY VERDICT (Count 1) (As to Calliss) NOT GUILTY VERDICT (Count 2) (As to Ball) GUILTY VERDICT (Count 2) (As to Bunce) GUILTY VERDICT (Count 2) (As to Calliss) GUILTY VERDICT (Count 3) (As to Ball) NOT GUILTY VERDICT (Count 3) (As to Bunce) NOT GUILTY VERDICT (Count 3) (As to Callis) NOT GUILTY VERDICT (Count 4) (As to Ball) GUILTY VERDICT (Count 5) (As to Ball) GUILTY VERDICT (Count 6) (As to Ball) GUILTY VERDICT (Count 7) (As to Bunce) GUILTY VERDICT (Count 8) (As to Bunce) GUILTY VERDICT (Count 9) (As to Bunce) GUILTY VERDICT (Count 10) (As to Bunce) GUILTY VERDICT (Count 11) (As to Calliss) GUILTY" 5. Several grounds of appeal were argued, but the main ground argued was: " The directions given by the learned Trial Judge in response to questions by the Jury on the topics of reckless indifference and intoxication were inadequate and potentially misleading, both separately and in so far as these two topics related to each other." 6. In considering the arguments on appeal, it is necessary to know something of the background to the events that allegedly occurred at the appellant Ball's house at 68 Aroona Road, West Croydon. On the complainant's version, she was violently raped, orally, vaginally and anally, penetration of her vagina occurring with ice as well as with penises and with fingers, penetration of her anus occurring with a broom handle. On the appellants' version, the complainant had been very friendly during the afternoon prior to the night in question, and a number of acts of consensual intercourse took place at Ball's house. 7. The appellants were acquitted of the counts relating to the insertion of ice into the girl's vagina and the insertion of a broom handle into her anus, and counsel for the appellants argued that these acquittals indicated that the jury did not accept all that the girl said. Certainly she was shown to be inconsistent in some matters. 8. The appellants, Ball and Bunce, were friends and regular attenders at the Hilton Hotel, South Road, Hilton. On Sunday 17 September, 1989 they were playing pool and drinking there. The appellant, Calliss, who had earlier lived at the hotel, was also drinking there at the time, but only knew the other two by sight. The complainant, Natasha Richter, then aged 19 years, arrived at the hotel at about 2.30 p.m. to meet a group of friends there. After going to the hotel, they had arranged to go to a particular film. During the course of the afternoon, Richter approached Ball and Bunce and offered to challenge them to a game of pool. A number of games followed. They were played on the understanding that the loser bought a round of drinks. For a time Richter was partnered by her male friend Kai, but he then rejoined their mutual friends. The appellant Calliss, who had been watching the games, then suggested that he take Kai's place, and he did so. Richter said she drank about two beers per hour and had two or three bourbons. The appellants had a good deal more to drink than this. 9. There is no doubt that Richter was a regular user and purchaser of marijuana, and there is no doubt that there was talk about marijuana at the hotel that afternoon. Richter said that she was asked whether she smoked marijuana and she replied that she did. On the other hand, the appellants say that she had asked more than once whether she could buy some marijuana there, and was told that there was no one there selling it, but that there was some at Ball's house where they were going later. 10. Richter did not leave the hotel with her friends to go a film as arranged, and did not ask them to wait while she completed a game. She simply said goodbye and said that she was staying to finish the game. She left the hotel about 6.30 p.m. It was established that she withdrew $30 from an automatic teller machine at 6.41 p.m. Instead of joining her friends at the cinema, she went back to the hotel and played another game of pool. The appellants then suggested that she go next door to see a band playing there, which she did. Whilst there, she bought and drank a bourbon and coke. There is a conflict in the evidence as to what then happened. Richter says she walked out of the hotel to the nearby car park, unlocked her car and got into it, and just after she had fastened her seat belt the appellants suddenly appeared outside her car, accosted her and got in. She stated that they, in effect, forced her to drive down South Road towards Port Road. She stated that during the journey she asked if she could go to an automatic teller machine, and that the appellants allowed her to do so. She turned off South Road onto Torrens Road, and stopped at one. She withdrew $100 at 8.31 p.m. She says she offered it to the appellants with a view to persuading them to let her go. They refused and she drove them to Ball's house. 11. The appellants' version of the way in which they all left the hotel was that there had been discussion between Richter and some of them about there being marijuana at Ball's house, and that they could all go back there. They also state that earlier there had been a particular conversation at the conclusion of a game which she lost. One of the appellants asked what they were now playing for, and Ball replied "sex". Everybody laughed, and Richter looked at Bunce and smiled "in a certain way". The appellants did not have a car, and all three walked with and followed Richter to her car in the car park. After a fairly substantial detour to go the bank machine, Richter drove them to Ball's house. The appellants deny that Richter offered them any money. She retained her car keys and placed them in her jeans pocket. The appellants totally denied the occurrence of some of the incidents alleged at Ball's house, and gave a different version of other incidents. 12. Counsel for the appellants stressed that notwithstanding a thorough medical examination of Richter, no injury was found on her body, and the only bruise was a bruise caused by the taking of a blood sample. He argued that this substantially weakened the Crown case. Richter had alleged violent handling of her on the part of all the appellants over a long period of time, and also of feeling "a ripping pain" when the broom handle was inserted in her anus, "as if it had been torn". 13. In the course of his summing up, the learned trial Judge mentioned the phrase "recklessly indifferent" twice, and on both occasions he did so in the course of giving the statutory definition of rape. He did not define the phrase, and he was not asked to do so at the end of his summing up. He said very little on the question of intoxication. In fact none of the counsel for the appellants asked his Honour to define "reckless indifference" or to direct the jury on the relevance of intoxication, either before or at the conclusion of his summing-up. The defence was simply that the complainant consented to any acts of sexual intercourse that occurred. 14. Such observations that his Honour did make on the question of intoxication were principally made in relation to the complainant. The following passage occurred in about the middle of his summing up: " On the other hand, it is for you to say, you may have found Dr Felgate a rather unconvincing witness. Got on to his job, that was not his fault no doubt, very late in the piece. He spoke of some blood alcohol readings, made some calculations. Mr Ey spoke of him coming to a reading for Natasha of .11 at one stage. At another stage Felgate said he had made a calculation of .147. But there was speak about the legal limit being .08. Of course that is the limit for driving. You can have a great deal, your common sense will tell you, you can have a great more than .08 in your blood and still be capable of moving about and deciding whether or not you will consent to intercourse, and deciding whether or not you will put a broom handle up a girl or not. We are concerned with actions other than driving. We know very little really about the effect of alcohol in anybody in this case. People talk of being drunk but seem to have moved about. And in relation to Natasha you may remember, and it is for you to say what effect you give to it, but nothing came from the barmaid or the manager to suggest that before she left the hotel she was badly affected by alcohol. She appeared to have manipulated the bank all right. Perhaps her driving was not wonderful but she drove to the home. Pulled up. Someone told her to pull up. Remember the point that Mr Telfer made late in the day about who told her to pull up. And, of course, the accused say that she was in a state where she was able to give consent to intercourse. And you will remember the experienced police officer, Mr Jeffries, said - I do not necessarily use his exact words - 'I'm sure she was not under the influence of alcohol or drugs after the events', and there was not anything much coming from the doctor to suggest there was a residuum about it." 15. There was, however, evidence from the three appellants which, if the jury accepted it, suggested that at the relevant time they must have been substantially under the influence of intoxicating liquor and drugs. 16. The appellant Ball said he arrived at the Hilton Hotel at about 4.30 p.m. He drank beer, pints and echoes, consistently until 8 p.m. When he got home, he drank port and smoked marijuana and hashish. He said they were all drunk and "trying to yell over each other". 17. Bunce said that the complainant was "as drunk as the rest of us". Later he said, "I was a bit tipsy, but not what I would call drunk". He said he was over the limit to drive. When he got to the house, he went to the kitchen and started drinking immediately. He smoked a mixture of marijuana and hashish. He said in examination in chief that when he went into the bedroom he was "pretty drunk by this stage". He was asked how long he actually had sexual intercourse with the complainant. He said "I'm not sure about - I know it was a long time because of the alcohol. Took me a long time to ejaculate". He said that when the police spoke to him he was still "half drunk". 18. Calliss started drinking much earlier than the other two. He started drinking white wine about 10.30 a.m. He went to the hotel about 4.45 p.m. He started drinking pints of beer and continued doing so until he left the hotel. When he arrived at Ball's house he started drinking port, and smoked a mixture of marijuana and hashish. He also consumed riesling or moselle from a cask on the fridge. He said that at the hotel he was "tipsy or merry". 19. The relevant law on intoxication is clearly established, and it is only necessary to refer to three cases. In R. v. Kamipeli (1975) 2 NZLR 610 at p 616, McCarthy P, delivering the judgment of the Court of Appeal, said: " Drunkenness is not a defence of itself. Its true relevance by way of defence, so it seems to us, is that when a jury is deciding whether an accused has the intention or recklessness required by the charge, they must regard all the evidence, including evidence as to the accused's drunken state, drawing such inferences from the evidence as appears proper in the circumstances. It is the fact of intent rather than the capacity for intent which must be the subject matter of the inquiry." (My underlining.) 20. In The Queen v. Viro [1978] HCA 9; (1978) 141 CLR 88 at p 112, Gibbs CJ said: " In a case where there is evidence fit to be considered by a jury that the accused was intoxicated as a result of the consumption of drink or drugs, it is not enough to tell the jury that the Crown must prove beyond reasonable doubt that the accused had in fact formed the requisite special intent. They should also be told that the fact that the accused was intoxicated, whether by drink or drugs or by a combination of both, may be regarded for the purpose of ascertaining whether the special intent in fact existed. It should be explained that evidence that the accused was intoxicated will not in itself entitle him to an acquittal, because a person when intoxicated may form the necessary intent, and one who has formed the intent does not escape responsibility because his intoxication has diminished his power to resist the temptation to carry it out. However, the jury should be told that if, because of the evidence as to the effect of the intoxication or otherwise, they are not satisfied that the accused did in fact have the necessary intent, they must acquit of the crime which involves that intent." 21. In The Queen v. Tucker (1984) 36 SASR 135, King CJ (with whom Mohr and Bollen JJ concurred) said at p 139: " In trials of charges of which intent, either basic or

specific, is an ingredient, where there is evidence of intoxication, it is necessary for the Judge to direct the jury to have regard to the effect of intoxication on the accused's mind in determining whether he possessed the requisite intent." 22. In his argument, Mr. Peek, counsel for the appellants, devoted much time to the case of The Queen v. Craggs, an unreported judgment of the Court of Criminal Appeal delivered on 22 August, 1990 (No. 2473). I agree with him that the case is very pertinent, not only because the direction given on intoxication by the trial Judge was not dissimilar to that given here, and it was criticised by the Chief Justice, and actually held to be a misdirection by the other two members of the Court, but also because the case affords an interesting factual contrast to the case at Bar. 23. The appellant was charged with three counts of rape, and three alternative counts alleging unlawful sexual intercourse with a thirteen year old girl. He was living in a de facto situation with the girl's mother. He was found guilty of the three counts of rape. 24. The girl's mother gave evidence that she and the appellant drank a great deal and regularly. She gave evidence that the appellant was drunk on occasions which appeared to correspond to the occasions on which the girl said that he had committed the offences. She also gave evidence that when spoken to about the incidents on each occasion, the appellant said that he was too drunk to know what he was doing. The learned Judge did not direct the jury as to any possible bearing which intoxication might have upon the appellant's criminal liability for these incidents, but at the end of the summing up, he was asked by counsel for the defence to give a direction as to intoxication. His Honour brought the jury back into court and said: " I said to you, and I adhere to it, that Miss Vanstone was right in saying the real issue before us is has it been proved beyond reasonable doubt that there was penetration of the vagina by the finger, but suppose you get to the situation where you wish to consider and think it is proper to consider on the evidence the question of whether Elizabeth consented and the third element, the man's state of mind and whether the accused knew that she was not consenting or was recklessly indifferent as to whether she was consenting. In that case, you would need to consider, particularly in relation to count one, the effect that alcohol might have on a man's mind. If you get to the stage of considering this sort of thing you will have to consider whether the taking of alcohol may have so acted on a man's mind that he put the finger into the vagina without any thought about consent or lack of it and was really incapable through alcohol of being recklessly indifferent. That really applies to count one, rape and it does apply to counts three and five too, although then, of course, if you accept Elizabeth's evidence beyond reasonable doubt of the insertion of the finger you will probably have accepted her evidence that she was asleep and no one could have thought that she was consenting when she was asleep." 25. In his judgment, King CJ discussed whether the evidence reasonably raised for the consideration of the jury an issue as to whether the appellant by reason of intoxication may have mistaken the girl's state of mind in relation to his advances and may have mistakenly thought that she was consenting. His Honour said: " The first question that arises on this appeal is whether the evidence reasonably raised for the consideration of the jury an issue as to whether the appellant by reason of intoxication may have mistaken the girl's state of mind in relation to his advances and may have mistakenly thought that she was consenting. I have already referred to Mrs Kotz' evidence that the appellant was drunk on what

appeared to have been the relevant occasions. The girl spoke of the appellant having been drinking on the occasion to which the first count relates and the occasion to which the third count relates. The girl's account of the incidents provide no indication of any conduct on her part or any words on her part which could have led the appellant, whether drunk or sober, into a mistaken view that she was consenting. Neither is there any evidence of any conduct on her part at any earlier time which could have contributed to any mistake upon the appellant's part. The very nature of the incidents themselves militate very strongly against the suggestion that the appellant might have been mistaken on the question of consent, whether drunk or sober. In relation to the first incident the girl gives evidence of a consideration(sic) degree and a persistent degree of force by which the appellant affected his purpose of inserting the finger into the vagina. She also gives evidence of a degree of resistance on her part. Moreover her evidence is that when the mother was heard to return to the house the appellant immediately desisted. During the incident he made quite rational comments suggesting that his mental powers had not been overcome by alcohol but on the contrary that his mind was functioning in an effective manner. He said, among other things, 'This is what you should do if you haven't got a boyfriend.' The other two incidents occurred when the girl was awakened from her sleep in the early hours of the morning by the appellant's approach and the nature of those incidents militate very strongly against any possibility of mistake on the part of the appellant. The appellant, of course, in his evidence denied that any such incidents had occurred at all. It is true that Mrs Kotz gave evidence of the appellant's intoxication on the relevant occasions but there is really no evidence at all in the case which raises a question as to whether the appellant might have been labouring under a mistake as to whether the girl was consenting to his conduct. She was a 13 year old girl who was the daughter of the woman with whom the appellant was living in a de facto relationship. He was therefore in a relationship with the girl which can fairly be described as in loco parentis. There was absolutely nothing in the evidence to suggest that she had ever given him any indication that she might be a willing party to sexual activity and in those circumstances it seems to me that there was really no evidence at all which raised the issue of mistake upon which intoxication might bear. In those circumstances I think that the direction as to the effect which intoxication might have upon the assessment of whether the appellant had made a mistake in relation to the girl's attitude to his advances was not called for. The learned judge had given a direction as to the mental elements of the crime and there was nothing, as it seems to me, in the case which required any direction as to the bearing which drink might have upon those elements. Nevertheless the learned judge acceded to the request of counsel for the defence to give a direction as to intoxication. Mr. David, QC, has argued that that direction whilst inadequate was so inadequate as to be misleading. Certainly the direction was by no means a model direction upon the question of intoxication and in many cases I would have had no hesitation in characterising it as inadequate. However, if intoxication had any bearing upon this case at all, it could only have a bearing if the appellant was very drunk indeed, so drunk as really to have lost touch with reality. There was nothing in his relations with this girl, nor in the nature of the incidents themselves, which could possibly have misled a man who was in possession of his senses to even a slight degree to support that this young girl was consenting to his sexual advances. Any direction on intoxication or, indeed, on any other topic must be related to the facts of the particular case and its adequacy must be judged in relation to the evidence and the facts in the case.

Although I accept that the present direction falls very far short of perfection I am inclined to the view that it does sufficiently meet the needs of the present case in so far as it could be said that the direction as to intoxication has any relevance in the case at all. If I am wrong about that point and the direction as to intoxication must be characterised as a misdirection, then I would have no hesitation in applying the proviso to section 353(1) of the Criminal Law Consolidation Act to the case. It seems to me that really intoxication played no part in this case. It was not the issue upon which the case was fought. The issue upon which the case was fought was whether the sexual incidents had occurred at all and, for the reasons that I have expressed, in my opinion there was nothing in the evidence to make intoxication an issue in the case in relation to the question of the mental elements of the charge. In my view of the case, this direction as to intoxication, falling short of perfection, was adequate, having regard to the facts and the evidence in this case. If it is to be regarded as not adequate, it is a case for the application of the proviso. In my opinion, therefore, the appeal should be dismissed." (My underlining.) 26. Cox J agreed that the appeal should be dismissed. He had this to say about the trial Judge's treatment of the topic of intoxication by way of redirection: " As a general, if brief, explanation of the impact of alcohol upon a defendant's, or even upon this appellant's, state of mind, the summing up in this respect was, in my view, inadequate, and probably amounted to a misdirection. It dealt with the subject, but probably exclusively from the point of view of a man who simply does not know at all what he is doing. The first part of it speaks of the appellant penetrating the girl's vagina with his finger without any thought about consent or lack of it, but says nothing about an actual, though erroneous, belief that the girl was in fact consenting. The learned judge then spoke of alcohol producing an incapability of being recklessly indifferent, and I am not sure what

that means. However, for the reasons I have given, I do not think that it really matters. There was no miscarriage of justice as a result of a direction which, in my respectful view, was deficient to the point of being erroneous but was also irrelevant, and I would therefore apply the proviso and dismiss the appeal." (My underlining.) 27. Mullighan J also agreed that the appeal should be dismissed but said: " I express no view as to whether the learned trial judge should have acceded to the request of the appellant's counsel at the trial to give a direction as to intoxication by alcohol. However, having decided to do so, such direction should express adequately and appropriately the significance of intoxication in relation to the requisite state of mind of the accused, with respect to each count, which the Crown had to prove. In my view, the direction given was not adequate for the reasons expressed by Cox J, and could have been misleading to the jury, and was a misdirection. However, in all the circumstances disclosed in the evidence, and as summarised by the Chief Justice, it is appropriate to apply the proviso." (My underlining.) 28. The Crown Prosecutor conceded that the direction of the learned trial Judge here was not a clear direction. I think it was also defective in that, like the direction in Cragg's case it focused on incapacity, whereas it should have focussed on the fact of intent, see Kamipeli, Viro and Tucker (supra). 29. Moreover, as the Chief Justice observed in The Queen v. Evans (1987) 48 SASA 35 at p 41: " It is essential to a correct summing up that the judge direct the jury in terms of the section: R v Sherrin (No 2) (1979) 21 SASR 250. He is free to explain the meaning of the expression 'recklessly indifferent' along the lines of R v Wozniak and Pendry and the cases which preceded that case, if he sees fit to do so, and I think that generally speaking he would be wise to do so. He is not required, however, in my opinion, to add an explanation unless the circumstances of the case require an explanation. The legislature has chosen its expression to denote the state of mind which is required and I do not think that a judge's direction can be criticised because he has confined himself to that expression, unless something in the circumstances of the case or the course of the trial require more. Such a case was R v Egan (1985) 15 A Crim R 20 ..." 30. It must not be forgotten that here the jury asked for an explanation of "reckless indifference". They were clearly having difficulty with the phrase and the relation to it of intoxication. In The Queen v. Wozniak and Pendry (1977) 16 SASR 67, Bray CJ said at p 74: " If it is, as I have suggested on reflection might be a preferable test, an intention to have intercourse without any belief in consent, then that belief is lacking if he realizes that she might not be consenting but nevertheless proceeds with intercourse." 31. In my opinion, a direction along those lines was called for, and it should have been linked to a proper direction about intoxication. On charges of rape, juries are usually told they have to consider the state of mind of the complainant and the state of mind of the accused. Here, the jury should have been told that in considering whether the Crown had proved the relevant state of mind of the appellants, they should take into account the evidence of the alleged effects on them of the consumption of intoxicating liquor and drugs. If they were not satisfied beyond reasonable doubt that they knew the girl was not consenting or they were not satisfied beyond reasonable doubt that they were recklessly indifferent as to whether she was consenting, they should acquit. 32. I have anxiously considered the submission that the issues raised on the appeal were not issues at the trial. I can understand why it did not suit the defence to do so. Although I have never thought that the adjectives "partial" and "total" are helpful in a discussion of intoxication, I think the following quotation from the judgment of White J in The Queen v. Egan and Others (1985) 15 A Crim R 20 at pp 41-42 is pertinent: " Counsel did not address on partial intoxication. This may have been due to oversight, although this is to be doubted because counsel were experienced, and they raised the point immediately after the summing up was completed. It is more likely that counsel appreciated the fact that the arguments based on partial intoxication were two-edged, like a two-edged sword as it were. There is a favourable or helpful edge which assists accused persons in cases like this, at the first stage of the exercise where the jury is considering the question whether the accused realised she might not be consenting. They get the benefit at that stage of any dulling of his perceptions due to partial intoxication. Once the

jury decides that he did realise, notwithstanding partial intoxication, that she might not be consenting, the very fact of

partial intoxication may then be used by the jury as the explanation why the accused pressed on with intercourse recklessly indifferent as to her consent. That is the adverse or unhelpful edge of the direction as to partial intoxication. It may be that counsel realised this difficulty and for tactical reasons, did not make too much of the issue." (And see also The Queen v. Summers and Others (1986) 22 A Crim R 47 at p 48.) The law, however, is clear that a trial Judge has to put to the jury any defence that fairly arises on the evidence, see R. v. Murphy (1988) 52 SASR 186 at pp 195-197 where Cox J reviews the English and Australian authorities. 33. I have reached the conclusion that this is not a case for the application of the proviso to s.353(1) of the Criminal Law Consolidation Act. I do not think it has been demonstrated that a jury properly directed in every respect would inevitably have convicted of the counts upon which it did convict. I would allow the appeal and direct a new trial.

JUDGE3 COX J I would allow this appeal for the reasons that have been given by the other members of the Court.

THE QUEEN v. KEVIN JOHN BALL, PETER ALAN BUNCE and ROBERT JAMES CALLISS Nos. 51, 55 and 52 of 1991 Judgment No. 2884 Number of pages - 13 Criminal law - multiple offences of rape (1991) 56 SASR 126 [1991] SASC 2884 (6 June 1991)

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Judgment (18 paragraphs)

THE QUEEN v. KEVIN JOHN BALL, PETER ALAN BUNCE and ROBERT JAMES CALLISS Nos. 51, 55 and 52 of 1991 Judgment No. 2884 Number of pages - 13 Criminal law - multiple offences of rape (1991) 56 SASR 126 [1991] SASC 2884 (6 June 1991)

Cases Cited (7)