Williams v R [2000] TASSC 182

Williams v R [2000] TASSC 182 - TASSC 2000 case summary — Zoe

[17]

4 The jury was rightly told to examine each count and not to convict the appellant thereon unless satisfied beyond reasonable doubt of his guilt on that count. The findings they made are consistent with their having been satisfied that the acts comprising counts 1 and 6 occurred without her consent, but that they were not satisfied to the requisite degree that the acts comprising the other four counts had occurred. In the circumstances, it would be remarkable had they been satisfied she had consented to some acts but not to others, two of which were of precisely the same kind, that is, vaginal intercourse, as that on which they had convicted. Indeed, had the only issue been one of consent, then having regard to the close link in time and nature of the alleged conduct, an acquittal on one or more counts would almost certainly have carried an acquittal on the others (see R v Whelan [1973] VicRp 26; [1973] VR 268, R v Kelly (1985) 38 SASR 561). However, this was not a case where the conduct complained of, other than in respect of count 1, was admitted and the issue therefore confined to consent. The more likely explanation for the differentiation is absence of satisfaction as to the occurrence of all the acts themselves. Disbelief of the complainant's claims on some of these matters did not logically require them to disbelieve her on all her claims. The doing of the acts comprising count 1 was common ground, consent being the only issue. There was no evidence of recent complaint in respect of digital penetration or the penetration of her mouth, and her complaint that she had been raped did not extend to a complaint of having been raped on several occasions. The verdict is consistent with the jury having been satisfied beyond reasonable doubt that without her consent the complainant had been sexually assaulted and raped at least once. The presence of semen, confirmed by the medical evidence, was capable of corroborating her claim that the appellant had ejaculated inside her on the last occasion she said vaginal penetration had occurred. In my view, there is nothing inconsistent in the jury, satisfied that counts 1 and 6 had occurred in the absence of any evidence other than her own, failing to be satisfied that all the other incidents had occurred, as she had described and giving to the appellant the benefit of such doubt as they had on the matter. There is no affront to logic and common sense in their verdicts.

[21]

6 The second ground of appeal is that the learned trial judge failed to fairly put the defence in his summing up, that his summing up was unfair and that in consequence a miscarriage of justice has occurred. The Crown case was that the appellant had been permitted to stay at the complainant's home at Orford in the spare room next to the master bedroom usually occupied by her and her de facto husband. Access to the latter room could only be gained through the spare room. Her three year old daughter slept in a nearby room. The complainant claimed that, being a little apprehensive of the appellant's intentions because of earlier indecent comments by him in the loungeroom, she had retired, not to her own bedroom but to that of her child and had gone to bed there fully clothed. After some time, the appellant had entered that room clad only in underclothing, had touched her breasts and had tried to get into bed with her. She tried to repulse him, but he forced her to get up and moved her into the spare room where each of the incidents alleged in the indictment had occurred. At their conclusion he had apologised and left. She had showered before his departure and after he left, she went to sleep for about three hours. At approximately 7.30am, she had rung the Sexual Assault Service and left a message for her call to be returned. When it was, she complained of being raped. She also rang the AIDS Council, but it was not open. She attended an appointment with her doctor later in the morning. She said she did not report the matter to the police until the late afternoon of that day because she was afraid the appellant would tell them she had sold him cannabis and that she would be imprisoned and separated from her daughter. The appellant, when interviewed by police, admitted having gone to the complainant's home, taking alcohol with him, and having engaged in sexual activity of the kind alleged in count 1 in the living room of that home. He claimed that after a time and before any intercourse had occurred, the complainant made it clear that she did not wish to take matters any further, that he had accepted the situation and that he had then left after declining her offer of a lift to Triabunna. Later in the interview when the complainant's version was put in detailed sequence, he denied having ejaculated on the bed, having taken her from the child's bedroom to the spare bedroom, having been in a partial state of undress himself and having engaged in the acts of intercourse alleged. He did admit to having entered the spare bedroom for the purposes of smoking a bong and said that while there, they had engaged in "more of the same", that is, conduct of the kind in count 1 which he agreed had also occurred in the living room.

[87]

34 There was nothing unbalanced, unfair or overbearing about the comments made by the learned trial judge prior to his putting the defence case to the jury. However, the comments made during the putting of the defence case are of more concern. Whilst the jury were reminded of many arguments that had been advanced by defence counsel, more often than not the learned trial judge suggested competing arguments. The result was that he did not present the defence case to them in a way which enabled them to appreciate how strong the totality of the defence arguments were if viewed from a favourable perspective. However, a trial judge does not have the duty to go that far in putting the defence case to the jury, and the closing address of defence counsel had no doubt given the jury an opportunity to view the defence case from the most favourable perspective. Although the putting of the defence case was interspersed by the putting of arguments favourable to the Crown, those arguments were invariably put forward in a moderate way, without the defence arguments being ridiculed or disparaged. One could take the view that, by countering most of the defence arguments with competing arguments favourable to the Crown, an impression might have been created that there was an answer to nearly every point that defence counsel had sought to raise. However, I do not think it can be said that the summing up, read as a whole, was unfair, unbalanced or overbearing. I think it was appropriate for the learned trial judge to raise for the consideration of the jury all of the arguments that he suggested to them. I do not think it can be said that justice and fairness required him to recite the significant arguments of defence counsel without interruption or digression in a separate part of the summing up, and to present the competing arguments for and against the appellant, side by side as it were, at a separate stage. I think the learned trial judge came close to the borderline by putting forward so many arguments favourable to the Crown in the course of presenting the defence case, but I have come to the conclusion that he did not go so far as to deprive the appellant of his right to have the defence case put fairly to the jury.

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Judgment (87 paragraphs)

Williams v R [2000] TASSC 182 (20 December 2000)

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Cases Cited (7)