Turrise v R [2003] ACTCA 23

Turrise v R [2003] ACTCA 23 - ACTCA 2003 case summary — Zoe

[4]

2. The nature of the Crown case may be shortly stated. At about 10.30 pm on 23 January 2002 the appellant knocked on the door of the complainant's flat in Lyneham ACT, and asked if he could come in. The complainant had first met him in June or July of the previous year and had seen him three or four times during the intervening period. There was a brief discussion and she permitted him to come into the flat. They sat down and talked for some time before he asked her if she wanted a beer. She apparently gave a non committal answer but he went out to his car and returned with a 750 ml bottle of Melbourne Bitter. During his absence the complainant, who had been ready for bed and dressed in boxer shorts, a bikini top and a swimmer top, put on a pair of track suit pants. The appellant returned and began to drink his beer. At that stage the complainant attempted to make a telephone call to a friend and, whilst she was doing so, the appellant began touching her arm and trying to play with her "belly button ring". She pushed his hand away but when she finished the call he attempted to kiss her. She said, "Don't" and pushed him away. She attempted to make another phone call but he knocked the mobile phone from her hand. There was a struggle between them during the course of which the complainant fell to the ground with the appellant on top of her. The complainant said that she feigned an asthma attack in order to persuade the appellant to get off her and hit him over the head with a Vodka bottle whilst he was getting her "puffer" for her. He subsequently overpowered her and forcibly removed her pants, telling her that if she did not stop screaming he would kill her. She complied with his demand for oral sex. It was this incident of sexual intercourse that formed the actus reas of the offence charged. Further acts of sexual intercourse to which the complainant did not consent followed. At one point the complainant pretended to be asleep in the hope that he would leave but he picked her up and took her back into the bedroom and a further act of sexual intercourse occurred. She eventually told him that she thought that her leg was broken and that she needed to go to hospital. He told her that she could call an ambulance if she had sex with him again and, despite her protestations, proceeded to do so. He then permitted an ambulance to be called. When it arrived she told one of the officers that she had been raped and the ambulance officer rang the police.

[11]

Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations. Their Honours added at 494-495 that: In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.

[27]

21. The only substantial evidence as to the appellant's brain injury and resultant disabilities consisted of the video tape of his interview with the police, though Mr Purnell also relied to some extent upon inferences which he suggested could be drawn from some aspects of the complainant's evidence. We were able to view a substantial portion of the video tape, including those portions which recorded the parts of the conversation relied upon by Mr Purnell. Whilst the accused appeared to have experienced some difficulty in responding to the first few questions put to him, he quickly overcame this difficulty and, as mentioned earlier, provided a coherent account of his version of the relevant events. Viewed overall, the manner in which he dealt with the various allegations put to him revealed no indication that his brain injury may have impaired his perceptive and reasoning ability to an extent that may have led him to overlook the circumstances from which, the Crown submitted, he must have realised that the complainant had not been consenting. Nor, in our opinion, was there anything in the evidence of the complainant that may have raised any real doubt about this issue. Furthermore, what was alleged against the accused was not a single act of intercourse with an unprotesting partner but a series of sexual acts, spanning some four hours with a young woman who not only protested but physically resisted him and screamed for extensive periods before being overpowered and, in the process, suffered at least some minor injuries. According to her version of events, the appellant also threatened violence on more than one occasion. In this context, it is difficult to see how the jury could have accepted the complainant's evidence that the relevant act occurred without her consent and yet have entertained any reasonable doubt as to whether the accused may have remained unaware that she was not consenting. The nature of the complainant's version given in evidence and the appellant's version recorded on the video tape, made consent or lack of consent the real issue in the case. Once the complainant was accepted on lack of consent, knowledge on the part of the appellant would inevitably follow. Hence, despite the jury's questions, we were unable to be satisfied that there was any real risk that the verdict was based on a finding of recklessness or, if it was, that the jury's failure to consider the limited evidence relating to the appellant's brain injury might have had a substantial impact upon the determination of that issue. Accordingly, we were not satisfied that there was any real risk that a miscarriage of justice may have occurred as a consequence of the misdirection (R v Mitton [2002] NSWCCA 124; (2002) 132 A Crim R 123).

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Judgment (38 paragraphs)

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Cases Cited (12)