R v Sefa [2006] ACTSC 59 (7 June 2006)

Last Updated: 12 February 2007

R v SAMUEL SEFA

[2006] ACTSC 59 (7 June 2006)

EX TEMPORE JUDGMENT

No SC 275 of 2005

Judge: Higgins CJ

Supreme Court of the ACT

Date: 7 June 2006

IN THE SUPREME COURT OF THE )

) No SC 275 of 2005

AUSTRALIAN CAPITAL TERRITORY )

R

v

SAMUEL SEFA

ORDER

Judge: Higgins CJ

Date: 7 June 2006

Place: Canberra

THE COURT ORDERS THAT:

Verdicts of not guilty be entered in respect of both counts on the indictment.1. Well, in relation to the point this trial has reached, I will just simply make a brief statement about that. This is a submission by Mr Glissan QC on behalf of the accused that, on the evidence given in the Crown case, I ought not to be satisfied beyond reasonable doubt that the case has been made out as the prosecution alleges.

2. This is not the same as to say it could not be made out, which would be a submission that there was no case to answer, that some vital element was absent. I have already indicated that, in my opinion, there was sufficient evidence for a tribunal of fact to conclude that the accused person could be convicted on the evidence given.

3. Now could be and should be are two different things. And as this is a trial by judge alone, I do not have to guess about what the tribunal of fact might be thinking. I am certainly not going to split myself into two separate entities for that purpose. I do have to remind myself, however, of certain matters which are essential to any criminal trial, and I will simply recite them in brief form because I know that they are reasonably well known. They are repeated in most summings up to juries.

4. My function as the trier of fact is to determine whether I am satisfied beyond reasonable doubt that the accusations encompassed in the indictment are made out. Those accusations, as encapsulated in the indictment, are that on 5 August 2005 at Canberra the accused engaged in sexual intercourse with the complainant without her consent and was reckless as to whether she consented. That is the accusation.

5. I must give a verdict on that according to the evidence as given. I bear in mind that I may accept the whole or any part of that evidence, even though much of it here is, of course, unchallenged and it would be inappropriate for me to reject it, but nevertheless in theory I could reject evidence that was given. But the way in which the trial has been conducted is that all the evidence, apart from the statements made by the accused in answer to questions by Constable Marriott, has been put without challenge.

6. Certainly it is suggested that I ought not to accept at face value everything the accused has told Constable Marriott. That is the extent, really, of the challenge that is made to any of the evidence. None of the other evidence is challenged and particularly, because it is quite important, the assessment made by Dr Wurth of the complainant is not challenged.

7. I have already made note of the fact that there is a report from the forensic and medical sexual assault centre and the AFP laboratory or Forensic Services at any rate, giving certain results of some analysis of some evidence. I will return to that subsequently. It is in this trial, as in any other criminal trial, a burden the Crown accepts to prove the case beyond reasonable doubt. That burden never shifts to the accused. The accused is in a consequence of that not obliged to make any answer to the charge. He was not obliged to offer any explanation to Constable Marriott or anybody else and he is certainly not obliged to give evidence in these proceedings.

8. Anything that the Crown seeks to prove that is relevant to making out the charges on the indictment must be proved to the criminal standard, that is beyond reasonable doubt. That means much more than the balance of probabilities or what is more likely than not. It means I have to be able to reject, without hesitation, all hypotheses open on the evidence that might be consistent with innocence.

9. I will briefly state that in my opinion, on the statements made by the accused to Constable Marriott, the element of sexual intercourse is, in each case, made out. The question of consent is then important. I would take it from the definition of consent in the Crimes Act 1900 (ACT) that whilst section 67(1)(i) would not be particularly relevant here, in that I am not persuaded that the complainant did not understand the nature of the act in which she and the accused engaged, the question as to whether nevertheless she had the capacity to give informed consent to that act is quite different. And I am satisfied that she did not have, in truth, the capacity to give an informed consent. That of course is not the end of the matter, as both counsel have, of course, rightly conceded.

10. The further element of the charge is that he was reckless as to whether there was consent in fact. Now recklessness for this purpose, means adverting to a risk - a real risk, not a fanciful one - and having adverted to that risk, determining to proceed notwithstanding that, in circumstances where it is unjustifiable to do so. That brings out the factual issue in this case.

11. The factual issue is whether one can reject with certainty, that is, beyond reasonable doubt, the assertion which the accused made during his interview with Constable Marriott that, in effect, he did not realise that he was dealing with a person who was intellectually disabled to the extent where she could not give informed consent, or any real consent, to put it another way. The presentation of the complainant, which was given to me and which was reported on by Dr Wurth, is such that ordinarily you would expect any person of ordinary capacity and powers of observation to be able to tell that the complainant was intellectually challenged. Whether or not you would draw the conclusion that she was so intellectually challenged as to be incapable of giving informed consent may, in some circumstances, be questioned. Certainly if someone like Dr Wurth was to engage in any examination of her he would have come to the conclusion, I am sure, though he does not expressly say so, that she was not so capable. The question is whether I can be sure that the accused was in that state of mind where he did appreciate, or must have, that there was a problem, and proceeded unjustifiably notwithstanding that.

12. Much of this turns of course on what the accused said to Constable Marriott during the course of Constable Marriott's quite careful and, if I may say so, quite professional questioning of the accused. It is suggested by Mr Morters that his statements of lack of appreciation of the complainant's intellectual deficit should be rejected. There were some, if I may summarise, points made in that respect which were certainly fairly put. He says, for instance, that I should regard as unlikely the proposition that, effectively, the complainant offered rather than was persuaded to have sex with the accused. The difficulty with that submission, of course, is that the observations of Mr Barsley, and indeed to some extent of Ms Jones, are not consistent with that. It might have been a stronger submission had the forensic samples that were taken, which included the presence of semen, been examined and either sourced to the accused or not, as the case may be. If it had not been sourced to the accused then that would strengthen the presentation which the accused says he obtained from the complainant. If it was his, it would seriously weaken his assertion that, although he had what is defined as sexual intercourse with the complainant, he did not ejaculate. That would have seriously - well, certainly to some extent, damaged his credit. But because that was not tested, I have to make the assumption in favour of the accused that whatever the result of the test was, it would not have been adverse to him.

13. The other factor which was relevant to whether I can be convinced beyond reasonable doubt that he must have realised that something was wrong, was his state of intoxication coupled with the fact that English is not his first language. His state of intoxication, it is true, is not capable of being precisely tested. There was no skilled observer present, such as Constable Marriott, who might have formed a more detailed observation of him. He was not breath tested which would have given some further indication. On the other hand, he did agree with Constable Marriott that he had been drinking. He asserted that he had been drinking before he got to the Southern Cross Club and he asserted that he had been drinking whilst he was there. It looks like he was conceding three or four schooners at the Southern Cross Club and he concedes some, which he describes as pints, before he left his flat.

14. That is certainly consistent, it seems to me, with the observations Ms Jones made when she described him as drunk and was concerned that the complainant was leaving the club with a person who was drunk. I cannot reject that. The hypothesis that the accused's understanding and appreciation of what was going on around him was diminished by alcohol is quite apparent to me. It is certainly not an hypothesis that I can reject.

15. If that is so, then it may be that given his own state of intoxication and his own lack of command of the English language, which presumably would not be heightened by the fact that he was drunk, it may have made it credible to his mind that the things he did notice about the complainant, particularly her speech or manner of speaking, could be put down to a lack of full command of the English language rather than intellectual disability. Certainly I cannot conclude that there was any really in-depth conversation between them, given his lack of sobriety, which to my mind, is reasonably well established. One can only assume that the conversation would have been fairly rudimentary, on his part as well as the complainant's.

16. So should he have noticed the fact that her speech was affected? Possibly, if he had not been affected by alcohol. But I cannot exclude the possibility that he really did not become aware of her lack of capacity, and then only to the extent to which he says he was aware of it, that is, towards the end of her stay at his flat when they were having coffee.

17. In those circumstances, if I was to now direct myself as to whether the prosecution has excluded all reasonable doubt, I would have to conclude that the issue as to recklessness was not made out in favour of the prosecution. I could not find on the definition of recklessness, which has not been in dispute, that this accused was therefore reckless as to whether there was consent and a verdict of not guilty would have to be returned in respect of each of the counts.

18. That being the state of mind in which I find myself, I have to therefore record a verdict of not guilty.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date: 15 June 2006

Counsel for the Crown: Mr D Morters

Solicitor for the Crown: ACT Director of Public Prosecutions

Counsel for the Defendant: Mr J Glissan QC; Mr J Sabharwal

Solicitor for the Defendant: ACT Legal Aid

Date of hearing 5, 6, 7 June 2006

Date of judgment 7 June 2006