uM 0 the ake Qe Nw Qs ear Sdn "Soa TITLE OF ACTION ..Grebsxv Date(s) of hearing FODERAL CouRt OF AU 271,50, 5\ eee teedaee STRAL IA ower. .. DISTRICT NIGLOTRY DIVISION aasee No of Acticn Saee o_ Des's Redors Coos ee ee NE es Be te we V,2 Saye Counsel and . Ms wo A. Bd PM. ear eran ' aveeeee . PLM o> © solicitors for - ssnstertes. Way Ek WEP... or aega\lank > Qo as Vas) ( ( ( ( ( ( ks Counsel and Folacitors for ( ( ( ( ( ( ( (ar ™o du ce on-foreirdinyg were Ly seater ere ese rse Peer er sere e sear nrereeesenane eee eee eT Pe ee SPB i i aie aera ars ra . . XN - QL. Signed .l. a errrésc.... Teese tee sces - (Aseocicte)hed fat ro Pe dqigcry, Lydaey fo. to Law pubsisiars) geome (4) FEDERAL COURW OP _AUSURALIA eee on SSsTT --DISIRICT RNGISTRY eee Leese) ..+DIVISTON Rose Dassd Raoeten~ No of Action .2.fc2 0... of 2... we Oar cdtoplsr Senn Palsosen - ee Counsel and Solicitors for Gcbss) Fallen. anata eee ae eae . . . . . . . « . . . « . . . ° . el . . . . . . e . . . . . . . . . . . . . Counsel and Solicitors for y a ft af oy '€ eed — tCL Signed "Seen Qe sence neeee (Associats) Date: he Se (RON: Toke dosocatehe dT to Pricer) gery, Sydney con on-forwarding 10 Jay publishers) See CATCHWORDS Assault with intent to rape - Appeals against conviction - Whether count charging one of four accused with assaulting prosecutrix should have heen heard with other charges - Whether evidence should have been admitted of sexual acts by one accused with prosecutrix which were not the subject of any charge - Distressed condition of prosecutrix, whether capable of amounting to corroboration - Whether remarks in opening address by counsel for the Crown referring to options of the accused were prejudicial - Appeals against sentence. Roger David Peterson, Christopher John Peterson, Joe Agresta and Gabriel Falla v. The Queen Nos. 1, 2, 5 and 6 of 1979 Coram: Connor, Franki and Northrop JJ. « Date: 26 November 1979. Canberra. IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY 6 of 1979 ) ) T.c. Nos. 1, 2, 5 and ) ) ) GENERAL DIVISION ON APPEAL FROM THE SUPREME COURT OF T LIAN CAPITAL TERR R BETWEEN: ROGER DAVID PETERSON, CHRISTOPHER JOHN PETERSON, JOE _AGRESTA and GABRTEL FALLA Appellants AND: THE QUEEN Respondent ORDER JUDGES MAKING ORDER : Connor, Franki and Northrop JJ. DATE OF ORDIR * 26 November 1979. WHERE MADE > Canberra. * THE COURT ORDERS THAT: 1. The appeals of Joe Agresta and Cabriel Falla against conviction and sentence be dismissed. 2. The appeals of Roger David Peterson and Christopher John Peterson against sentence be dismissed. een 3 wee we ne = The four appellants were tried together, found guilty, convicted and sentenced to terms of imprisonment. Their appeals were heard together. The appellants Joe Agresta and Gabriel Falla appeal against conviction and sentence. The appellants Roger David Peterson and Christopher John Peterson appeal against sentence only. There were five counts in the indictment. In the first count Joe Agresta was charged with assaulting the prosecutrix with intent to commit rape. In the second, third and fifth counts the appellants Christopher John Peterson, Gabriel Falla and Roger David Peterson were each charged with aiding the commission by Joe Agresta of assault on the prosecutrix with intent to commit rape. In the fourth count Gabriel Falla was charged with assaulting and beating the prosecutrix. In the early hours of the morning of 13 November 1978 the prosecutrix was "hitchhiking" in London Circuit and got into a car occupied by the four appellants. She went with them to a house in Turner. There was a conflict of evidence as to whether she went voluntarily to this house. From the time she and the appellants entered the house certain events occurred first in the lounge room, secondly in the bedroom and thirdly after the prosecutrix left the house. The four charges relating to the assault with intent to rape arose out of incidents which occurred in the lounge room. No charge was laid in respect of any events which occurred in the bedroom. The fourth charge arose out of incidents which occurred after the prosecutrix left the house. The only element in issue in the lounge room charges ty was whether the acts alleged to have constituted assault with intent to rape were done with or without the consent of the prosecutrix. Apart from the question of the opening of the Crown Prosecutor, to which we shall refer, no significant point appeared to be in issue in relation to the fourth count. The prosecutrix gave evidence ahout the events on that night. Each appellant made an unsworn statement. Police officers gave evidence of conversations with each appellant. A signed record of interview with each appellant was also in evidence. Several persons living near the house in which the events occurred gave evidence of screams which they heard. The occupants of a car who befriended the prosecutrix after the events, the subject of the charges, gave evidence of the circumstances in which they encountered her and of her condition at the time. A doctor who examined the prosecutrix at a hospital shortly after the events, the subject of the charges, also gave evidence. There was nothing of substance in any of the records of interview or elsewhere in the evidence to support the submission that the prosecutrix consented to any of the sexual activities which took place in the loungeroom or that any of the appellants believed that she was consenting. It is appropriate to point out, however, that the learned trial judge was at great pains to ensure that the jury would understand that the statement by one accused could be used only as evidence against him and not as evidence against any other accused. The learned trial judge also reminded the jury on a number of occasions that 1t was most desirable to consider the case against each accused separately. It 1s unnecessary to consider in detail the precise nature of the alleged assault with attempt to commit rape. The appellant Agresta admitted that while he was attempting to have sexual - wee EEE. 219 Een tl . intercourse with the prosecutrix in the lounge room the appellant Christopher Peterson was restraining her by holding her shoulders down. The appellant Falla admitted that while the appellant Agresta was attempting to have sexual intercourse with the prosecutrix he was holding her head down. After the events in the lounge room it was virtually common ground that the prosecutrix was in a bedroom with the appellant Christopher Peterson when a further act of a sexual nature took place and that the other appellants were standing at or near the bedroom door. The prosecutrix said that the cvents which occurred in the bedroom were without her consent. The appellant Christopher Peterson in an unsworn statement and in a record of interview said that she consented. No charges were laid in respect of any of the incidents which happened in the bedroom. After the incidents in the bedroom it was not in dispute that the prosecutrix went to the lavatory and then ran naked from the house. The appellant Falla admitted that he struck her when she was screaming and knocking on the door of a house nearby. Shortly afterwards she was found in the street naked by the occupants of a car. She was then in a_ distressed condition, In the records of interview, which were admitted without objection, it is appropriate to note certain questions and answers. The record of interview with the appellant Agresta included the following questions and answers concerning the events in the lounge room: "Q63 Did she consent to you doing this. A No, she didn't do anything Q68 Did she consent to you doing this. A No, she didn't try and push me away, she didn't say anvthing. salad ERewewarat srerremeeneaerere cuss 2 aes Q70 Q71 Q88 Q113 Ql14 A What were they doing I don't know, Chris was holding the girl's shoulders while I was trying to get into her. Why was he holding her shoulders. He was just holding them down, I don't know why. She alleges that when the person put his fingers in her vagina she was struggling and screaming. I don't remember her screaming, there was a bit of a struggle but I wouldn't call it much of a struggle. Did the girl at any time consent to you having sexual intercourse with her. She didn't say yes but she didn't stop me either. [The Prosecutrix] alleges that she did not give permission for you to have sexual intercourse with her in the loungeroom. What have you got to say about that. She didn't say nothing to me." The record of interview with the appellant Falla included the following questions and answers concerning the events in the lounge room: Q100 Ql10l She further alleges that when she was on the bean bag a male person with dark hair placed his fingers in her vagina. Can you tell me anything about this. That would have been Joe. She alleges that whilst this person was doing this, one of the other males had his foot across her head and her left leg was being held. What can you tell me about this. I was holding her head down but I wasn't holding it with my foot, I was using my hands. She further alleges that she was screaming and struggling from the time the person first placed his fingers in her vagina. What can you tell me about this. wer ee Q108 She did scream and struggle but she didn't all the time. Did you at any time on this night form the opinion that this girl was doing these acts of her own free will. When she was in the bedroom I suppose she was, but not when she was in the loungeroom." This record of interview also included the following questions and answers relevant to the fourth count: "Q7L A Q72 Q73 Q76 Q79 Can you tell me who chased her down the road, when she left the house. Joe and Roger then I followed them. What was she doing when she was running down the road. She was just running. What happened then. Thats when she ran into the corner house over the street and started screaming. What did you do then. She was down on her hands and knees and screaming knocking on the door and Joe got to her first and told her to stop screaming. I asked her to stop screaming and she would'nt so I slapped her on the face and she was still screaming so I went back to the house. How did you slap her. Just my open hand across the face or the side of the head." The appellant, Falla, sought a new trial and relied upon two grounds of appeal, the first of which flowed from a statement made by the Crown Prosecutor in opening and the second from evidence relating to the distressed condition of the prosecutrix. The submissions in relation to the Crown's opening related to the part of the opening which read: ~~ Vs 0 | 6, "Each of the accused men 15 represented in this trial by counsel and each counsel will be given opportunity to test the evidence of the various Crown witnesses by cross- examining them. They will also be given opportunity to address you and also, if they so desire, to call before you evidence from their clients or from other witnesses. But they are not obliged to do that if they choose not to do so because the burden of proof in this case 1s upon the Crown to prove to your satisfaction beyond reasonable doubt that the offences have been committed. It 1s not a matter for any of the accused men to satisfy you as to their innocence. Accordingly, they can remain silent if they so desire throughout the whole of this trial without prejudice to their position." It was submitted that the comment that an accused's counsel could call evidence from an accused contravened s.74 of the Evidence Ordinance 1971. An application was made on behaif of all the appellants except Christopher Peterson to discharge the jury because of this opening but the learned trial judge refused the application. The trial judge directed the jury that it could convict without corroboration but that 1t was usually regarded as unsafe to convict on uncorroborated evidence of the woman concerned. Directions were then given in relation to what could constitute corroboration. It was argued that evidence relating to the distressed condition of the prosecutrix ought not to have been admitted, that the direction in respect of the evidence which could amount to corroboration was wrong in law and that the direction in respect of the weight to be given to the corroborative evidence was instfficient. Counsel for the appellant Agresta relied upon the two points upon which Falla relied and, in addition, submitted that a new trial should be ordered because: (a) The trial judge was in error in permitting the trial of the fourth count in the indictment to take place concurrently with all the other counts in that the facts surrounding that count en ern Sale oe el - were not within the category of facts closely associated with the main charge, (b) The trial judge should have excluded evidence concerning the fourth count, (c) The trial judge in admitting evidence of what took place in the bedroom crred in admitting evidence of matters which had nothing to do with the charges in the indictment but were prejudicial to Agresta. (d) The trial judge should not have admitted evidence of the alleged distressed condition of the prosecutrix when her alleged distress arose from incidents other than from the alleged attempted Tape. We turn now to the question of the opening address of the Crown Prosecutor in which he made the remarks already set out. Section 74(1) of the Evidence Ordinance 1971 provides as follows: "On the trial of an indictable offence, the failure of the person churged or his spouse to give evidence shall not he made the subject of comment by Counsel for the Crown." It 1s submitted on behalf of the appellants Agresta and Falla that counsel for the Crown, when he said that counsel for the accused "will also be given opportunity to address you and also, if they so desire, to call before you evidence from their clients or from other witnesses", plainly referred to the fact that the accused had the right to give evidence, When in the event none of the accused gave evidence on oath the remarks, 1t 15 said, amounted to a contravention of the section. ON aS ~ 8. We were referred to many authorities on this issue including Bridge v. The Queen (1964) 118 C.L.R. 600, but as was said by Isaacs J. 1n Bataillard v. The King (1907) 4 C.L.R. 1282 at p.1291° "The question whether the law has been so contravened must depend in each case on the words used and the circumstances in which they are used." A contravention of the section arises when counsel for the Crown refers to the fact that an accused has the right to give evidence on oath but fails to give evidence. As Higgins J. said in Bataillard's Case, supra at p.1292: "The comment must be on the refraining - on the fact that he could have given evidence on oath and has not done so." Section 74(1) appears to be directed to the prohibition of comments by counsel for the Crown in his final address. When counsel for the Crown 1s opening it w11l not be known whether the accused has failed to give evidence or not. At that stage of the trial it is difficult to envisage how any formal contravention of s.74(1) could occur. It is not at all difficult, however, to envisage a breach of the spirit of s.74(1) in an opening address by counsel for the Crown; and the breach could well be sufficiently prejudicial to the accused to cause the presiding judge to discharge the jury. ' Here the passage objected to, when read in context, forms part of an explanation to the jury of the trial procedures about to take place in court and also was directed to the fact that the accused did not have any onus to establish their innocence. In all probability the members of the jury knew of the right of an accused person to give evidence on oath and that if an accused person did give evidence he was liable to be cross-examined. As the Chief Justice said in Bridge's Case, supra, this gives added eS importance to the need to ensure compliance with the section. Counsel for the Crown made no reference to the fact that the accused had the right to make an unsworn statement. No reference was made concerning the weight to be given to evidence given on oath and an unsworn statement. The remark relating to remaining silent throughout the whole of the trial was a comment on the burden cast on the Crown. In those jurisdictions where the prohibition applies to comment by the trial judge, when an accused makes an unsworn statement the judge does not contravene the section in directing the jury that they must take that statement into consideration and give it such weight as they think fit along with the sworn evidence but that the statement is not evidence in the same sense since it lacks the sanction of an oath and the test of cross- examination, see Bridge's Case, supra, per Windeyer J. at p.616. In this case each of the accused made an unsworn statement and the direction on this aspect of the case given by the learned trial judge in his charge to the jury could not be made the subject of any valid criticism, In all the circumstances we do not think that the remarks of counsel for the Crown constituted a comment that the appellants had the right to give evidence on, oath hut failed to do so; nor do we think that the remarks could reasonably be supposed to have influenced the result of the trial (see generally Stokes v. The Queen (1960) 105 C.L¢R. 279 at pp.284-285). Before leaving the matter we think we should say that in general it 1s undesirable for the Crown Prosecutor, in opening to the jury, to describe what may happen during the course of the trial, particularly with reference to the options of the accused. In this trial the Crown Prosecutor plainly 10. sailed much too close to the wind. Ile did so in the course of an elaborate description of the dramatis personae of the court room. Generally this serves little 1f any useful purpose. Generations of competent Crown Prosecutors have been content simply to open the facts to which the Crown witnesses will testify with perhaps an occasional reference to the law in so far as 1t may be necessary to explain the relevance of the proposed evidence. The next matter is the question of the fourth count. No suggestion was made that in law the five counts could not be included in the one indictment cf. R. v. Assim [1966] 2 Q.B. 249, but it was submitted that as a matter of discretion, the trial judge was in error in permitting the trial of the fourth count to take place concurrently with the other counts. We reject that submission. <A summary of the relevant facts has been given. There was a time span of between 30-40 minutes from the time the prosecutrix entered the car occupied by the four accused until she was found naked in the street by the occupants of a car. Each of the four accused participated in the events which took place in the lounge room and which form the basis of the facts on which the other counts in the indictment rely. Three of the accused followed the prosecutrix when she left the house. There is no doubt that the accused Falla assaulted her while she was at the front door of the corner house. The events giving rise to each of the counts in the indictment were so Closely related in time, place and personnel that, subject to the discretion of the trial judge, they should have been heard concurrently. We can see no basis on which it can be said that the trial judge was 1n error in exercising his discretion to allow the trial of the fourth count concurrently with the trial of the other counts. 11. Apart from the objection taken to the concurrent hearing of the fourth count with the other counts, 1t was submitted that the trial judge was in error in admitting evidence of events which occurred suhsequentlv to those occurring in the lounge room. It was put that the evidence of the subsequent events up to and including the assault on the prosccutrix at the corner house could not affect the quality of the acts constituting the assault with intent to commit rape and the aiding of that assault and that the admission of that evidence involved a substantial miscarriage of justice which warranted the convictions being quashed. This submission 1s separate and distinct from the submission that the evidence of the subsequent events could constitute corroboration. In R. v. Bond [1906] 2 K.B. 389 Kennedy J. said at p.400: "Evidence 1s necessarily admissible as to acts which are so closely and inextricably mixed up with the history of the guilty act itself as to form part of one chain of relevant circumstances, and so could not be excluded in the presentment of the case before the jury without the evidence being thereby rendered unintelligible." See generally R. v. Richards (1965) Qd. R. 354 at p.358 and O'Leary v. The King (1946) 73 C.L.R. 566. In the present case, the substantial issues were whether the prosecutrix had consented to having sexual intercourse with the accused Agresta and whether the four accused could reasonably belicve that she had so consented. The events occurring subsequently to what had occurred in the lounge room were so Closely connected with the conduct of the accused and were so closely linked in point of time with the counts in the indictment that according to the test of justice as well as common sense there could be no serious challenge to their relevancy and admissibility, see R. v. Bond, supra, per Kennedv J. at p.402. mm - vw Those events form part of a relevant chain of events closely connected in time and are relevant to what happened between the occurrence of the events in the lounge room and the making of the complaint by the prosecutrix, cf. R. v. Flannery [1969] V.R. 586. We turn now to the question of the distressed condition of the prosecutrix. The appellant Agresta and the appellant Falla each contend that the evidence concerning her distressed condition ought not to have been admitted and that, in any event, the learned trial judge should not have told the jury that it was open to them to treat that evidence as capable in law of constituting corroboration. On this aspect of the appeal much the same issues arise in respect of each appellant. It will be convenient, therefore, to deal with them together. In order to!indicate the context in which the learned trial judge dealt with the question of the distressed condition of the prosecutrix it 1s desirable to observe the way in which he dealt with the question of corroboration in general. In our view the learned trial judge gave the jury an adequate direction about the desirability of corroboration in sexual cases. On more than one occasion he carefully told the jury that before they could regard potentially corroborative ,evidence as in fact providing corroboration, they must first of all accept such evidence beyond reasonable doubt and, 1f they did so, they must then decide whether its effect on their minds was to confirm the evidence of the prosecutrix in some material particular. He specifically told the jury that a complaint by the prosecutrix was not capable in law of providing corroboration. The learned trial judge went through the records of interview of the appellants Agresta and Falla which had been admitted without objection. In each case he carefully, and in our view correctly, selected 13. the passages which were capable in law of constituting corroboration and explained the particular use to which the jury could put them. None of these matters were the subject of any complaint hy cither appellant. In our view there were admissions by the appellant Agresta in his record of interview which the jury might have regarded as strong corroboration of the evidence of the prosecutrix that she was not 4 consenting party and that he did not think she was. The same 1s true of the appellant Falla; and his counsel conceded, in our view correctly, that there was clear corroboration available apart from the distressed condition of the accused. The learned trial judge dealt with the matter of the emotional disturbance of the prosecutrix on a number of occasions. He was at pains to point out that the emotional disturbance was not confined to crying and being upset hut included such matters as the flight from the house while naked, her screaming shortly after she ran away and before she was struck by lalla and her subsequent action after being assaulted by Falia in fleeing naked along a public street where she was met by four persons in a car. On at least three occasions the learned trial judge told the jury that before treating this evidence as providing corroboration they must ' scrutinise 1t with great care hecause the initial flight and the screaming might have been due to the events which occurred in the lounge room or in the bedroom and the subsequent Flight might have been due to either of those sets of events or to the assault by Falla. The learned trial judge told the jury that they could use the emotional disturbance, in the extended sense in which he described it, as corroboration only if thev accepted beyond reasonable doubt the evidence of its existence, and if they could connect it to the events which had occurred in the lounge room and if it produced in their minds an effect confirming the evidence of the prosecutrix. The appellant Agresta stated in his record of interview that he saw the prosecutrix open the back door and run outside — saree 14. the house in a naked condition. The appellant Talla admitted ety eee in his record of interview that the prosecutrix ran out the door down the road and started screaming and that he hit her once to stop her from screaming. Three persons living in the locality where the appellant Agresta hit the prosecutrix heard the sound of loud screaming in a female voice at the relevant time. One of the occupants of the car, a Miss Henchy, gave evidence that she saw the prosecutrix running along Macarthur Avenue limping and holding her stomach. She came up to the car in which there were threemen, as well as Miss Henchy, and ran away again. The occupants of the car followed her and Miss Henchy got out of the car and spoke to the prosecutrix who then stopped and spoke to her. There was ample evidence admissible against both appellants, independent of the testimony of the prosecutrix herself, of her initial flight in a naked condition, her screaming and her subsequent flight in a naked condition. Counsel for the appellants Agresta and Falla relied heavily on the manner in which the decision of the English Court of Criminal Appeal in R. v. Redpath (1962) 46 Cr.App.R. 319 had been dealt with in subsequent cases. In that case an independent witness saw a seven year old girl emerge in a very distressed condition from a moor where later she said she had been indecently assaulted and from where the appellant had been seen to leave a very short time before the girl emerged. The Lord Chief Justice, Lord Parker, delivering the reasons of the court said at p.321: "Mr. Harper has argued that the distressed condition of the complainant 1s no more corroborative than the complaint, if any, that the complainant makes, and that while the latter merely shows that the story 1S consistent and 1s not corroborative, so the distressed condition is not corroborative. This court is quite unable to accept that argument. It seems to this court that the distressed condition of 15. a complainant 1s quite clearly capable of amounting to corroboration. Of course, the circumstances will vary enormously, and in some ciicumstances quite clearly no weight, or little weight, could be attached to such evidence as corroboration. Thus, if a girl goes in a distressed condition to her mother and makes a complaint, while the mother's evidence as to the girl's condition may un law be capable of amounting to corroboration, quite clearly the jury should be told that they should attach little, if anv, weight to that evidence, because 1t 18 all part and parcel of the complaint. The girl making the complaint might well put on an act and simulate distress. But in the present case the circumstances are entirely different. Here 1s this little girl emerging from the moor 1n a matter of seconds after the appellant has left, not about to make a complaint at that particular moment and with no idea that she is being observed or that anybody thinks that anything improper has happened. Quite clearly in those circumstances the observation of Mr. Hall, an independent bvstander, was very strong evidence, if accepted by the jury, of the little girl's story." A few years later the matter was considered by the Court of Criminal Appeal in Queensland in R. v. Richards § Others (1965) Qd.R. 354. It was held that where it was alleged that several men raped the prosecutrix in the course of a single night, her condition of distress early the next morning was equivocal and did not confirm the evidence that the crimes had been committed or that the accused committed them. Lucas J., with whom the other two members of the court agreed, said at p.360: . "I do not suggest that evidence of this tvpe could not be regarded as corroborative in any case of rape. It would he strorger, I would think, in a case in which an act of rape by one person alone is alleged. As the Court of Criminal Appeal said in Reg. v. Redpath (supra), regard would have to be had to all the surrounding circumstances in order to determine whether such evidence carried any corroborative weight. One such circumstance would clearly be the age and character of the complainant. In Redpath, in circumstances very different from these, I respectfully agree that the evidence had considerable weight." 16. vormN In R. v. Knight (1966) 1 W.L..R. 230 the question of emotzronal distress as corroboration was again considered. The Lord Chief Justice, Lord Parker, again delivered the judgment of the court. The appellant had been convicted of indecently assaulting a girl of seven. The girl's father had come upon his daughter while she was walking in a street with the appellant. The girl said that until she saw her father she was not distressed at all but the father said that after the appellant walked away she was considerably distressed. The court said that although the girl's distress might have been insufficient evidence if it had stood alone there was other evidence which, 1f accepted, was cogent evidence capable of amounting to corroboration and dismissed the appeal. In the course of delivering the judgment of the court Lord Parker said that since R. v. Redpath there had been a tendency to leave to the jury almost every case where a complainant was seen in a distressed condition. He had endeavoured to stress in R. v. Okoye [1964] Crim.L.R. 416 and in R. v. Luisi [1964] Crim.L.R. 605 that "the distress shown by a complainant must not be over-emphasised in the sense that juries should be warned that, except in special circumstances, little weight ought to be given to that evidence". Tn R. v. Flannery [1969] V.R. 58@ the Victorian Court of Criminal Appeal held that evidence of a distressed condition observed by a constable three hours after the alleged rape and by a doctor five hours afterwards tas not capable of constituting corroboration because so much had taken place and so much time had elapsed in the interim. Lvidence of another witness of the distressed condition of the prosecutrix when she was making a complaint to the witness about an hour afterwards was also rejected because it was at least as consistent with being wwerevmes + ined induced by the complaint the prosecutrix was making to the witness at the time as by the alleged assault. At p.591 the court said: "In our opinion evidence of the distressed condition of a prosecutrix may or may not be capable of amounting to corroboration according to the particular facts of each case. In determining whether it is so capable, regard must be had to such factors as the age of the prosecutrix, the time interval between the alleged assault and when she was observed in distress, her conduct and appearance in the interim, and the circumstances existing when she is observed in the distressed condition. Without attempting to enumerate exhaustively the circumstances in which such evidence may amount to corroboration, we are of opinion that if, regard being had to factors of the kind we have mentioned, the reasonable inference from the evidence 1s that there was a causal connexion between the alleged assault and the distressed condition, evidence of the latter is capable of constituting corroboration. If such inference is not open, the cvidence 1s not, in our opinion, capable of amounting to corroboration. We should add that except in special circumstances such as existed in Redpath's Case, supra, evidence of distressed condition will carry little weight and juries should be so warned by the trial judge in the course of his charge." In R. v. Yates (1970) S.A.S.R. 302 the South Australian Court of Criminal Appeal had to consider a case in which on a charge of rape evidence was given by the stepmother of the prosecutrix that shortly after the alleged offence the prosecutrix arrived at her home in a distressed and hysterical condition. The defence was one of consent hy the prosecutrix. It was held in the circumstances that evidence of the distressed condition of the prosecutrix was admissible as corroboration of her evidence. The court cited the passage from R. v. Flannery supra which we have already set out and added for itself the following: "We would with respect adopt that passage; but we would add that one very important factor in deciding whether a state of distress can be corroborative 1s whether such a state 1s equally consistent with the case for the prosecution and 18. the case for the defence. If it 18, we do not think it 1s capable of constituting corroboration. Here, however, on the case for the accused that the girl was not only a willing party, but the initiating party, there was no reason for her to be in any subsequent distress at all and the condition deposed to by the mother followed so hard upon the act of intercourse that we think a reasonable jury could, 1f it saw fit, infer that there was a causal connection." In R. v. Wilson (1974) 58 Cr.App.R. 304 the English Court of Criminal Appeal considered another case in which the prosecutrix, a girl in her early twenties, sounded upset and unhappy when making a complaint on the telephone and shortly afterwards looked upset and unhappy when making a complaint in person. The complaint was about a phone call she had received from her father in which he attempted to procure her by threatening her mother. Edmund Davies 1L.J., as he then was, reviewed the English authorities on distressed condition as corroboration, beginning with Redpath's Case. The court concluded that distress on the part of the complainant should not be over- emphasised and juries should be warned that, except in special circumstances, little weight should be given to it. We think it was plainly open to the jury to conclude that the naked flight and the screaming were due to terror on the part of the prosecutrix and were quite uncontrived. The learned trial judge, as we have pointed out, was at pains to tell the jury the circumstances in which thev could use the evidence of distressed condition as corroboration. The authorities subsequent to R. v. Redpath (1962) 46 Cr.App.R. 319, to which we have referred, draw attention to the dangers associated with treating evidence of an upset state at the time of making a complaint as corroboration. We think the evidence here amounts to a great deal more than that. We do not think there is anything in those authorities which prevents the use of evidence such as this as von 19. corroboration. Consequently we do not uphold the grounds of appeal that the learned trial judge was in error in admitting the evidence or in error in classifying it as potentially corroborative in the guarded manner in which he did. We therefore dismiss the appeals against conviction of the appellants Agresta and Falla. We turn now to consider the appeals against sentence. Of the four appellants, the appellant Agresta received the longest sentence, namely five years with hard labour and a non-parole period of three years. He was the eldest of the four, being 23 years at the time of the offence. The appellant Talla was 21 years at the date of the offence. He was sentenced to imprisonment with hard labour for three years and six months on the charge of aiding and abetting the appellant Agresta in the assault with intent to rape; anda non-parole period of 21 months was fixed. On the charge of assault he was sentenced to imprisonment with hard labour for 12 months and it was ordered that his sentences be served concurrently. Christopher John Peterson was 20 years at the date of the offence. He was sentenced to three years and six months with a non-parole period of eighteen months; that 1s to savy the same head sentence as the appellant Falla but three months less non- parole period. Roger David Peterson was 18 vears at the date of the offence. He was sentenced to imprfsonment with hard labour for three years and six months with a non-parole period of fifteen months; that 1s the same head sentence as Falla and Christopher Peterson, but six months less non-parole period than Falla and three months less than Christopher Peterson, The appellant Agresta had one previous conviction for carnal knowledge of a girl under the age of Jo. He committed wear - ~ Swamper re» sre 20. this offence when he was 18 and received a hond. He had a good work record. The appellant Falla, when aged 17, was convicted in a Children's Court first for assaulting a male and in a separate incident for assaulting a female. Jor the first offence he was committed generally to an institution but this order was suspended on his entering into a recognisance to be of good behaviour for twelve months. In breach of the recognisance he committed the second offence for which he was committed to an institution for six months. At the age of 18 he was sentenced to various terms of imprisonment for stealing. He was also convicted of numerous driving offences for one of which he was sentenced to three months hard labour. The appellant Christopher John Peterson, apart from two Children's Court convictions, had one conviction for assault for which he received a small fine. He was well regarded by his employer and his job was available for him if he had been released. The appellant Roger David Peterson had no previous convictions. He had a good employment record and bore a good character. The officer who presented the welfare report to the court reported favourably on him. Before us Mr. Dodson appeared for both the appellants Peterson. He told us that his clients had taken the view that their records of interview were matters which would make it very difficult for a retrial to succeed and that they did not seek a retrial even if the appeals of Agrésta and Falla succeeded. In sentencing the appellants the learned trial judge said: "Fach of the accused was concerned in taking the complainant in a car driven by Christopher John Peterson to a house in O'Connor about midnight on 10 January 1978. She had asked to go to Ainslie and on it being indicated that this could be done, she entered the vehicle. 21. At the house in O'Connor she was, bv the combined efforts of all four accused who held her and restrained her, forced to submit to the attentions of the accused, Agresta. <As the Jury's verdict shows he, assisted hy his companions, assaulted her with intent to commit upon her the crime of rape; the others, as the Jurv's verdict shows, aided and abetted the accused Agresta. That she was not raped seems to have been merely a matter of accident. To escape from this humiliating and utterly degrading expericnce, the complainant left the house unclothed and sought help nearby; to subdue her cries for help, the accused Talla pursued her and assaulted her, then Icft her so that she was able to make good her escape, running or walking through the streets until she was befriended by a number of persons passing by in a motor vehicle. On the facts which the Jury apparently accepted, these accused showed a callous contempt for the complainant when she was at their mercy; and they sought to justify it by pleading that she consented, or they thought she did. The Jury has rejected these propositions. The evidence which proved the crime charged, while falling short of proving rape, showed there was achieved almost the same total indignity for the complainant. In R v Fraser [1975] 2 N.S.W.L.R. 521, where Wootten J. was dealing with a claim for compensation by the victim of a rape, he wrote (p.524) The frequency of its (1.c. rape) occurrence 1s a sign of social disintegration, and not in any degree a sign of community acceptance. There 1S, 1f anything, an increasing revulsion towards the offence. One may remark that a similar kind of revulsion would be felt in respect of an attempt which does not succeed, despite a group effort. There is much discussion in literature and authorities as to how crimes, particularly of the character of the major charge here, should be dealt with by courts. See, for example, a reference to some such authorities "New Law Journal" Vol. 128, No. 5861, 13 July 1978 at p.676. But finally the cases must be considered individually. The community's interest and the protection of its individual members must he accorded great significance without, however, depriving by punishment the chance of a convicted person to rehabilitate himself. I regard the accused Agresta as the most reprehensible of this gang. It was in his crime that the others assisted; and thus in one sense played a secondary role. , ty ta In addition, the accused Falla was guilty of a savage and cruel assault, on somcone who was in no position to resist. I return now to the first charge. It is necessary to ensure that it be clear that those who participate in this kind of activity, which seems prevalent in present day socicty, may not do so with impunity. However, I have tried tun my order to have regard to the differing ages, criminal experience, and degree of participation by the various accused in the crime of assault with intent to rape and aiding and abetting." His Honour then set out the ages of the appellants, briefly reviewed their antecedents and proceeded to impose the sentences we have set out. We have carefully considered the submissions on sentence but in the end we do not think that the learned trial judge has overtly acted upon any wrong principle; nor do we think that the sentences in themselves show that he has done so. These sentences appear to us to be within the range of sentences which might properly have been awarded for these offences. We therefore eee ere me dismiss the appeals against sentence. _ ton £ certify that this and ' vee Coe ee et ee te oepy ofr the receusng pres are a tree c Pou 1 bos tow Judgment nerein of his Heneur sugo> gs for Juagment heroin ol arsainne | mo. tee Fear ka - ' 2 Justsce Sonor | " - mame pe HE vous ' ar Assoclate ated: » Gis Tocernfy that this aid the preceding: pages are a time copy of the Rewons for Judgment herein of the Howear ible Me Justice MV rvtnsp AS Te Hated att {