New South Wales Court of Criminal Appeal CITATION : R v BOZKUS [2001] NSWCCA 68 revised - 19/03/2001 FILE NUMBER(S) : CCA 60177/00 HEARING DATE(S) : 05/03/01 JUDGMENT DATE : 5 March 2001 PARTIES : Regina Fatih Rustu BOZKUS JUDGMENT OF : Spigelman CJ at 1; Sperling J at 20; Carruthers AJ at 21 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/21/0138 LOWER COURT JUDICIAL Bellear DCJ OFFICER : COUNSEL : A C Haesler (Appellant) G E Smith (Crown) SOLICITORS : D J Humphreys (Appellant) S E O'Connor (Crown) CATCHWORDS : CRIMINAL LAW - sexual assault - consent only issue - directions to jury incorrect - Weissenteiner v The Queen (1993) 178 CLR 217 - RPS v The Queen (2000) 199 CLR 620 R v Fowler (2000) NSWCCA 142 R v Hannes (2000) NSWCCA 503 CASES CITED: R v OGD (1997) 45 NSWLR 744 RPS v The Queen (2000) 199 CLR 620 Weissensteiner v The Queen (1993) 178 CLR 217 DECISION : Appeal allowed; New trial ordered - 7 - IN THE COURT OF CRIMINAL APPEAL 60177/00 SPIGELMAN CJ SPERLING J CARRUTHERS AJ Monday 5 March 2001 REGINA v Fatih Rustu BOZKUS JUDGMENT 1 SPIGELMAN CJ: On 11 October 1999, the Appellant was indicted before his Honour Judge Bellear at Parramatta District court on five counts of sexual assault, alleging that he had sexual intercourse with Tania Wallace without her consent, knowing that she was not consenting thereto. There was a verdict by direction on one count. He was convicted on the other four counts. 2 The Crown case was that the victim was a sex worker who had agreed to have sexual intercourse for reward with the Appellant and this occurred. Thereafter, however, the Crown case alleged that he used force to engage in a number of other acts of sexual intercourse, without her consent. 3 The Appellant admitted that he did have sexual intercourse with the victim. His case was that the acts were consensual and that he had not sexually assaulted her. Accordingly, the primary issue in the case was consent. 4 The Complainant gave evidence with respect to each of the four counts. It was her failure to give evidence with respect to a fifth count that led to a verdict by direction in that respect. The Appellant did not give evidence. 5 In submissions on behalf of the Appellant made to this Court, it was conceded that Judge Bellear's summing up was comprehensive and addressed all relevant issues of law and fact. The sole ground of appeal was based on his Honour's directions to the jury with respect to the failure by the Appellant to give evidence. 6 His Honour's directions were in the form customarily made in this State, pursuant to the authority of Weissensteiner v The Queen (1993) 178 CLR 217 and R v OGD (1997) 45 NSWLR 744. His Honour's directions were in accordance with the authorities binding on him at the time he made the directions. Subsequent to the trial in this matter, the High Court gave judgment in the case of RPS v The Queen (2000) 199 CLR 620. 7 RPS did not overrule Weissensteiner. This Court is bound by both judgments. There are difficulties in reconciling these judgments as this Court has noted in R v Fowler (2000) NSWCCA 142 and R v Hannes (2000) NSWCCA 503. The High Court has heard argument in two cases which raise the difficulties of reconciling Weissensteiner and RPS. The decisions in those cases have not been handed down as at the date of this appeal. 8 The relevant direction by Bellear DCJ was as follows: "The next direction I give you ladies and gentlemen relates to the accused not giving evidence. The accused has not given evidence and there are a number of important directions which I must give you in relation to that fact. An accused may always give evidence in his trial but he is under no obligation to do so. As I have already pointed out the Crown bears the onus of satisfying you beyond reasonable doubt that he is guilty of the offences with which he has been charged. The accused bears no onus. He is presumed to be innocent until you have been satisfied by the Crown that he is guilty. The accused is entitled to elect to say nothing and to make the Crown prove his guilt. You will recall the caution administered by the police officers when questioning the accused following his arrest. They informed the accused that he was not obliged to answer their questions. That is the law. A person who is questioned by the police has the right to remain silent. He retains that right to remain silent even when he is on trial. That is the right which the accused has exercised here. Because the accused has merely exercised the right which belongs to every citizen, you must not conclude that he has elected not to give evidence because he is guilty of the offences charged against him. Such a conclusion from the exercise by the accused of that right to remain silent would be completely wrong. The silence must not be viewed by you as an admission of guilt on his part. There are many reasons why any accused person may not want to give evidence. He may fear that he will be confused by cross-examination, or he may simply be content to rely upon the witnesses which exist in the Crown case. There are, no doubt, other valid reasons. You must not speculate why the accused has not given evidence. In the present case, however, you may, when judging the value or weight of the evidence which has been put forward by the Crown as establishing its case against the accused, take into account the accused's election not to deny or contradict the matters about which he could have given direct evidence from his personal knowledge. You may think that it is only common sense that in a situation where a Crown witness and the accused are directly involved in a particular incident so that they are two persons best able to give evidence of what happened in that incident and where the evidence of the Crown witnesses left undenied or uncontradicted by the accused, any doubts which may otherwise have been cast upon the evidence of the Crown witness may more readily be discounted and the evidence of the Crown witness may more readily be accepted as the truth. This is the approach which you may take in relation to the evidence of Ms Wallace with respect to these events or incidents." 9 The basis of the Crown case was the evidence of the complainant. There was some material, particularly of complaint and medical examination, which corroborated her testimony in some respects. Nevertheless, her evidence was central to the issue posed for consideration as the primary issue for this trial, namely the issue of consent. 10 In this circumstance, his Honour's direction - entirely exemplary on the state of the law prior to RPS - invited the jury to take the failure of the Appellant to give evidence into account on this central issue in the trial. To repeat the critical words in the direction: "…any doubts which may otherwise have been cast upon the evidence of the Crown witness may more readily be discounted in the evidence of the Crown witness and may more readily be accepted as the truth". 11 The majority joint judgment in RPS acknowledged that there are circumstances in which a direction of this character is appropriate in a criminal trial. However, the circumstances are to be more narrowly confined than was the practice in this State prior to RPS. 12 In a joint judgment, Gaudron ACJ, Gummow, Kirby and Hayne JJ said at [27]: "… It will seldom, if ever, be reasonable to conclude that an accused in a criminal trial would be expected to give evidence. The most that can be said in criminal matters is that there are some cases in which evidence (or an explanation) contradicting and apparently damming inference be drawn from proven facts would come only from the accused. In the absence of such evidence or explanation the jury may more readily draw the conclusion the prosecution seeks." 13 The decision in Weissensteiner had been applied by this Court in R v OGD supra. In RPS at [30] the High Court doubted that OGD stood for a "general proposition" that a direction should be given "in cases like the present", which encompasses a sexual assault case in which the accused does not respond to the complainant's evidence. The joint judgment in RPS expressly rejected any such "general proposition", referring, with approval, to Gleeson CJ's emphasis in OGD at [752], on the need for caution in giving such directions. The factual situation in OGD, in which there was a significant difference between one charge and ten other charges, does not exist on the facts of this case. There is no basis for any differentiation amongst the four separate charges in this case in any relevant respect. 14 The situation in the present case is not like that in Weissensteiner where there was evidence that could come only from the accused. 15 The substantive issue in this trial was, as I have said, consent. The complainant gave evidence of absence of consent. The Appellant's evidence in chief, if he had given any evidence, would no doubt have been directed to contradicting the complainant's evidence of absence of consent, by giving, no doubt, positive evidence of consent. 16 However, this is not an exceptional case of the character to which the High Court was referring in RPS. It is not in the same category of case as Weissensteiner where evidence could only come from an accused. 17 In accordance with the approach of the High Court in RPS, there was no sufficient basis for a direction to the jury to the effect that the absence of evidence by the Appellant entitled the jury to reason in a manner which reinforced the evidence of the complainant. 18 The Crown in its written submissions made reference to the proviso. This is not an appropriate case for the application of the proviso. As the Crown indicated there was other evidence arising from the physical examination of the complainant which tended to support the absence of consent. Nevertheless, the manner in which the jury could treat the evidence by the complainant given in Court goes to the heart of the critical issue in the trial. It is not a case in which the proviso should be applied. 19 In my opinion the appeal should be allowed and there should be an order for a new trial. 20 SPERLING J: I agree. 21 CARRUTHERS AJ: I also agree. 22 SPIGELMAN CJ: The orders are as I indicated. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.