R v Barclay [1999] QCA 457

Judgment (57 paragraphs)

[1]

Director of Public Prosecutions (Queensland) for the respondent

[2]

[1] THE COURT: This is an appeal against conviction and sentence in respect of two convictions of rape, one of indecent assault and one of assault occasioning bodily harm. The notice of appeal contained two grounds, as follows:

[3]

**1. The trial judge erred in failing to uphold an application by defence counsel to abort the trial and discharge the jury as a result of evidence given by Valmai Enid Bryan, such evidence having been earlier ruled by the trial judge to be inadmissible.

[4]

2. The sentence imposed was manifestly excessive.**

[5]

[2] In his written outline however the appellant went considerably beyond the notice of appeal and stated the following "grounds":

[6]

"1. A complete lack of forensic evidence to substantiate the indecent assault or the rape.

[7]

3. Inadmissible evidence was presented by the prosecution.

[8]

A conflict of statements by witnesses for the prosecution. This is especially evident when statements made at the committal hearing are compared to evidence presented at the trial.

[9]

Evidence presented by the prosecution which was inflammatory extraneous material designed to prejudice the accused.
Questionable validity of testimony from the complainant because of mental illness, substance abuse, and previous offences.
The foreman of the jury (James Gough) was previously known to me and prejudiced against me. The foreman also worked with people who knew of my previous conviction of rape in 1977.
My solicitor Michael Pearson misrepresented me by asking the witness a leading question. (I have previously complained to the Queensland Law Society)."

[10]

**[3] The appellant appeared in person and was permitted to develop his submissions fully, with the Court reserving the question whether he should be granted leave to add any of these additional grounds to the notice of appeal.

[11]

[4] As some of the grounds allege inadequacy of the evidence it will be necessary to present a short review of the evidence that was called.

[12]

[5] The complainant was a 35 year old woman who had been squatting in a makeshift area under a house for about a week. It was enclosed by battens. She had a recent and only passing acquaintance with the appellant who lived in the same street. The Crown case was that the appellant entered her accommodation whilst she slept in the early hours of 4 April 1998 and severely bashed her before performing various indecencies and then raping her. He restrained her for a period of time and raped her again in the morning before going to work. He pleaded guilty to assault occasioning bodily harm at the commencement of the trial and the complainant's account in respect of that assault was not contested. It was her claim of sexual activity that was challenged in cross-examination.

[13]

[6] The appellant neither gave nor called evidence.

[14]

[7] The witnesses called by the Crown gave evidence to the following effect. The complainant said that she went to bed at about 9.00 pm and awoke some time later to find the appellant standing over her bed hitting her. He was aggressive and loud, accusing her of sexually assaulting someone's niece and that she had ripped off "Auntie Val's" money. He kept saying "I'll kill you, you bitch". He punched her in the chest and face until she could barely see. He sat on her back and drove her head into the cement floor. He pulled her jaws apart, bending her neck back. When she struggled he hit her harder. He forced his fingers up her nose and bit hard on her ears and back of her head. Still sitting on her he squeezed his hands tightly around her throat. She was unable to breathe and blood ran from an ear. She felt herself losing consciousness. He gouged her eyes and forced a finger into the hollow of her throat. The sexual offences began with his thrusting his tongue in and out of her vagina. He tipped water on her genitals and pushed his fingers into her causing her further pain. Then he pinned her down and effected penile penetration. She said it felt like a knife inside her. Her whole body ached. He finished by saying "I've blown".

[15]

[8] The appellant remained beside her keeping hold of her in the darkness. He told her that he had to leave for work at 6.00 am and that she should wake him in time for him to go to work.

[16]

[9] Shortly before 6.00 am she told him the time. He then again performed cunnilingus, chewed on her breasts and again raped her. She said she felt bruised internally. He told her not to go to the police and to wait for his return from work. The complainant lost consciousness for a time but by 8.00 am had dressed and walked to the police station. She made a complaint. At that time her facial injuries appeared "severe" and she was limping, crying and pleading for help.

[17]

[10] Medical evidence was called which confirmed that shortly after midday she had bruised lips which were swollen on both the inside and outside; a lacerated right ear and a left ear which was red and swollen with dried blood; the area behind the left ear was swollen and tender. The nose was swollen and bruised; the maxillary region was swollen and tender; the throat was bruised and swollen; two fingers were swollen and tender; the left wrist contained a bite mark; the thighs and right hip were bruised and the left buttock was tender. A dental expert identified bite marks on the forehead, right ear and possibly forearm.

[18]

[11] Vaginal swabs revealed only two spermatozoa from a high vaginal swab. The evidence was that if normal ejaculatory intercourse had occurred within 12 hours there would be large numbers of sperm, assuming that the male was not aspermic or that the spermatozoa have not been washed away by blood flow. The complainant's high vaginal swab was heavily blood stained and there was evidence that the complainant had some form of discharge.

[19]

[12] There was extremely strong corroborating evidence from Mr S Greer who happened to be staying overnight in the house next door. He did not know either the complainant or the appellant. He overheard an episode of violence followed by what sounded like the noises of or accompanying sexual intercourse and protests from a woman. The noises came from the complainant's quarters from 3.00 am to 3.30 am. He at first thought there was a domestic argument. He heard two voices, one male, very loud, dominating and aggressive, and a female voice defensive, becoming softer and more muffled. He heard the man accuse the woman of having a sexual relationship with his niece followed by repeated threats to kill and hurt the woman. There was a reference to grabbing her throat. The man used names like "bitch", "whore" and "slut". There were thumps and bumps and the sound of chairs moving. He then heard "the obvious sound of a male having sex" describing the noises as rhythmed, timed, grunting and groaning. He also heard the woman screaming out in obvious pain and saying that she "did not want this" on numerous occasions. When the noises died down Mr Greer woke his host (Mr Hopkins) who also listened. Mr Hopkins however suffered from industrial deafness. He could hear two voices but could not distinguish words. Mr Greer also heard a further threat to kill the woman and a muffled response as if she had difficulty speaking. It then became quiet.

[20]

[13] Valmai Bryan was also called as a witness. She gave evidence of a conversation with the appellant shortly after the police visited the scene the following morning. Her evidence did not contain any direct admissions, but was capable of being regarded as circumstantial evidence as to which different submissions might be made by the Crown or defence. Mrs Bryan was a close family friend of the appellant. She lived only a few houses away from the complainant and had only recently met her. She thought the complainant was a nuisance and said that the complainant had made inappropriate comments to her (Mrs Bryan's) young daughter. The evidence which was led of Mrs Bryan's conversation with the appellant on the morning of 4 April was in the following terms:**

[21]

"Mrs Bryan: Something's happened up at the mad one's house. Something's come down pretty big. There's police everywhere.

[22]

Appellant: True. I didn't rape her. I have to go. I'll phone you later on". (Our italics).

[23]

**[14] Mrs Bryan's statement to the police had included an additional phrase, before the italicised words, namely "I haven't risen true to form because ...". The learned trial judge, on application from defence counsel, had ruled that the additional phrase should not be led, as that sentence could be taken to imply that he had a propensity to commit rape. In fairness to the appellant, that part of his statement that denied rape was permitted to be given.

[24]

[15] Mrs Bryan's statement also contained an addition that the appellant had admitted that he had "touched the mung bean up" (the "mung bean" being the appellant's reference to the complainant). The learned Crown prosecutor asked further questions to elicit that statement. Having established that the appellant sometimes used the expression "mung bean" with respect to the complainant and that he had used that word in this conversation with Mrs Bryan the prosecutor asked "What did he say?" The response from Mrs Bryan was that "he just said 'I didn't run true to form' or something. That's all he just said". Mrs Bryan subsequently was led through her statement in cross-examination and the admission of "touching-up" the complainant was brought out by defence counsel. There was no further reference to the phrase "I haven't run true to form". In cross-examination defence counsel also obtained a concession from Mrs Bryan that she may have been the one who mentioned "rape" first in the conversation.

[25]

[16] Evidence was also called from Steven Bryan who was Valmai Bryan's nephew and a close friend of the appellant. His evidence is not particularly relevant, amounting to a conversation with the appellant after the event in which he told the appellant that "somebody's been raped and murdered up the road" to which the appellant had answered "No they're not dead".

[26]

[17] We turn firstly to the original ground of appeal.

[27]

Alleged propensity evidence (Ground 1 of the notice of appeal, and points 3 and 6 of the outline)

[28]

[18] After Mrs Bryan had completed her evidence defence counsel sought an "order for mistrial" because her evidence had eventually included the words "I haven't run true to form". It is immediately apparent that when those words were given in evidence they lacked any connection with the subject of rape and were given in a different context. In our view the evidence that was given contained no implication whatever of an admitted propensity to rape or from which the jury might get the impression that the appellant had any previous criminal history for that offence (as indeed he had). Indeed, perhaps the most likely meaning to be taken from his use of the phrase "I haven't run true to form" would be that his admitted assault was out of character. In ruling that he would not discharge the jury the learned trial judge observed that "where the two sets of words have been separated and not in any way linked, other than that they occurred during the same conversation, there should be no prejudice suffered by the accused so far as his right to a fair trial is concerned". When he summed up in due course his Honour warned the jury against propensity reasoning, although in my view such an issue did not really arise. There is no reason to think that the trial miscarried by reason of the evidence given by Mrs Bryan or that his Honour erred in refusing to discharge the jury.

[29]

Forensic evidence failing to substantiate or corroborate indecent assault or rape (point 1 of outline)

[30]

[19] It is true that the forensic evidence did not corroborate the complainant's evidence of ejaculatory intercourse, but neither is it inconsistent with that evidence. Good reasons existed for the absence of the numbers of spermatozoa that might have otherwise have been expected. Quite apart from this limited aspect, in the context of the complainant's story of physical violence preceding rape, the medical evidence of the complainant's injuries provides evidence of corroboration. Of course the appellant's case was that he had attacked her and had then departed without doing anything sexual to her. However the medical evidence including that of bite marks and the injury to the thighs, right hip and left buttock are supportive of the complainant's version. So was the evidence of Mr Greer.

[31]

Conflict of statements by witnesses for the prosecution (point 4 of outline)

[32]

[20] Having examined the evidence we consider that there is nothing exceptional in the inconsistencies which emerged in this respect.

[33]

Alleged mental illness and unreliability of complainant (point 7 of outline)

[34]

[21] There was no evidence calling for special mention or special caution to the jury in relation to unreliability. Matters in relation to the complainant's credit, including a previous offence of shoplifting and her alleged substance abuse, were properly canvassed and placed before the jury. However this is not a case where there was evidence of some mental illness or abnormality revealing grounds for fearing that her evidence was inherently unreliable or that it was necessary that some special caution be suggested to the jury in relation to her evidence.

[35]

"Foreman of the jury was previously known to me and prejudiced against me" (point 8 of outline)

[36]

[22] The indictment reveals that the name of one of the jurors was James Gough. It is surprising that if these persons were known to each other, the appellant remained silent during and after the selection process. The appellant claimed that he had once abused Mr Gough for wetting him with a hot hose at work. When a member of this court mentioned that the appellant would have been in court when the juror was sworn in, he responded that he had then the feeling, "Gee, I know you from somewhere" but could not work out from where. He stated that it was only after he had been "in the Centre for a few weeks" (that is, after his conviction) that he had realised that he had "worked with him last year at Consolidated Meats". During argument the appellant further made hearsay allegations that Mr Gough works with two persons "who know about my previous rape conviction from 1977". He then made a further allegation that there had also been a lady on the jury with whom he had worked at Emerald Dry Cleaners, who also was aware that he had a prior conviction for rape.

[37]

[23] He told the Court that he first realised that he had worked with "the only lady on the jury ... at Emerald Drycleaners" at "about the same time", that is to say not until "about three weeks after I was in gaol". He sought to explain his poor memory by excessive smoking of marijuana. The appellant subsequently stated that the company that had employed him and Mr Gough was a Brisbane company named "Bindrus", inviting the court to "ring them and confirm it". He then made further allegations that the female member of the jury had worked with him for some three months at Emerald Dry Cleaners where he had been employed under "Job Start". He said that he had not then been long out of prison and that in those days employers were informed by Social Security about people having been to gaol and about the relevant offences, and that his employer "told all the young ladies and everything". He added that the woman juror was a "foreman out there". He still could not remember her name, but he knew her face. He had worked with her there in 1989 or/to 1990. He added with respect to Mr Gough that he last worked with him "about this time last year" which would seem to be a reference to October or November 1998. They had, he said, both worked for Bindrus as cleaners and had done cleaning work at various company sites of the Consolidated Meat Group in Rockhampton.

[38]

[24] The appellant then seems to have changed his ground. He says that he told his solicitor Mr Pearson that he thought he knew the man on the jury from somewhere and that he had also mentioned something about the lady to him. He insisted that he had given instructions to his solicitor about these people on about the second day of the trial and had asked his solicitor "Why didn't they put their hand up? ... Like if they knew me they should have declared that they knew me". His solicitor had however done nothing about it.

[39]

[25] The Court adjourned granting leave to the parties to make further written submissions and if thought fit affidavits. In the result five affidavits have been supplied to the Court and to the appellant by the Crown. Supplementary written submissions have been presented by the Crown but not from the appellant. However a letter written by him to counsel for the Crown on 13 November 1999 attaching a statement by Ms Liza Hudson has been forwarded to the Court.

[40]

[26] The material gathered by the Crown in relation to the appellant's allegations is as follows. An affidavit from the Operations Manager for Biniris (Aust) Pty Ltd who has access to all personnel files kept in the payroll department confirms that the appellant was briefly employed by that company in Rockhampton in October/November 1998, although his total work for the company amounted to 12 hours comprising two six hour shifts. That was the only time that he worked for the company. The records were also checked with respect to the name James Gough. No person by the name of Gough was listed on the records meaning that no person of that name had been employed by the company.

[41]

[27] In his letter to the Crown prosecutor the appellant raised two further matters concerning Mr Gough. One is that he believed that he had spelt the surname wrongly. As to this, the court records show that it was spelt correctly as "Gough" and that this conforms to the name which was searched by the former employer of the appellant. The appellant further alleged in his letter that Mr Gough had sat beside Detective Crouch in the public gallery while he was being sentenced. An affidavit of the arresting officer Mr Crouch confirms that the jurors returned to the public gallery when the sentencing procedure took place. Mr Crouch who was already seated noted a man (who was later identified to him as the jury foreman) who was unable to locate a seat on the left side and who then moved and sat in a position beside him. They had no conversation. He considered that as friends and family of the appellant were seated in the back row of the right hand side of the gallery it was understandable that the juror was prepared to sit beside the police and away from the appellant's family and friends.

[42]

[28] Other hearsay allegations are made in the appellant's letter but it is not necessary to consider these. The statement by a Mrs Hudson concerns the manner in which the police are said to have obtained a statement from Mrs Bryan who was initially reluctant to give a statement. It would not satisfy the tests necessary for reception of fresh evidence upon appeal.

[43]

[29] None of the appellant's allegations have been supported by evidence under oath. There is credible evidence before the Court suggesting that the allegations concerning Mr Gough are without foundation. In addition the statements that the appellant has seen fit to make to the Court are internally contradictory and carry a strong flavour of opportunism.

[44]

[30] The Crown's investigations into the allegations concerning the female juror are equally suggestive of error or fabrication on the part of the appellant. The affidavits of the proprietors of Emerald Dry Cleaners discount every allegation of the appellant except that he worked there for a time. In particular it seems clear that that business did not employ the female juror concerned and the proprietors of that business had no knowledge that the appellant had a criminal record at the time he commenced work with them.

[45]

[31] When one considers the nature of the allegations, the fact that there was a four day trial in which no complaint was raised, the appellant's statements of impaired memory and the proven inaccuracy of essential parts of the case which he seeks to raise of bias on the part of two jurors, we do not think that the threshold has been reached for further action by this Court. There is no sufficient basis for directing that the appellant provide formal evidence of his allegations, followed by further Crown investigations from the appellant's former legal representatives and by an eventual testing of two bodies of evidence, as sometimes occurs when allegations are made of improper or inadequate conduct at trial leading to a miscarriage of justice[1]. No basis has been shown to fear that any miscarriage of justice has occurred in this case, and, having given full consideration to everything that the appellant has alleged in this respect, we would refuse leave to add any additional ground of appeal to raise bias on the part of jurors.

[46]

[32] We have dealt with the major arguments that were presented and do not think it necessary to deal with any other arguments. We consider that the Crown case was quite overwhelming as to the appellant's guilt and that there is no substance in any of the grounds relied upon for setting aside the verdicts. It was uncontradicted by any evidence from the defence. The defence accepted that the appellant entered the complainant's home without invitation whilst she was sleeping and committed brutal and protracted acts of violence upon her. His defence that nothing happened thereafter was properly put to the jury. Acts consistent with her description of the rape were overheard by a completely impartial witness. Finally the allegation put (but not supported by evidence) by the defence that the appellant had bashed the complainant and then left was not supported by the evidence of witnesses, Mrs Bryan and Steven Bryan, with whom the appellant lived, leaving open the inference that he had not in fact returned home at all that night. The appeal should be dismissed.

[47]

[33] The sentences imposed were 15 years imprisonment on the counts of rape with a declaration that it was a serious violent offence, and concurrent orders of six years imprisonment for the indecent assault and three years imprisonment for the assault occasioning bodily harm.

[48]

[34] The applicant is a 39 year old man. He has previous convictions including one for rape in 1977, assault occasioning bodily harm in 1985 and frequent drug offences with terms of imprisonment resulting in 1986, 1991 and 1993. He is not entitled to any benefit for a plea of guilty, as he defended the sexual charges, and the plea to assault occasioning bodily harm would seem to have been a tactical decision. It has no resemblance to cases where a person's offer to plead guilty to a lesser offence is vindicated by the verdict. The victim impact statement reveals that the complainant suffered severe physical and personal consequences. The following matters in our view reveal the present offences to be very serious examples of the offence of rape, and indeed of the other accompanying offences. In the terms used by counsel for the Crown these matters are:

[49]

• the length of time over which the offences were committed;

[50]

• the extreme and frightening nature of the threats to kill;

[51]

• the physical and psychological after effects; and

[52]

• the applicant's history of anti-social behaviour including a previous conviction for rape in 1977.

[53]

[35] To this there might be added the fact that the applicant's presentation upon appeal was that of a person who is completely remorseless.

[54]

[36] A sentence of the order of 15 years does not seem to us to be excessive, and seems to be supported by cases including Penniment[2], Mason[3] and Gerrits[4].

[55]

[37] We would dismiss the appeal against conviction and refuse leave to appeal against sentence.**

[56]

[1] R v Paddon CA No 122 of 1998, 28 August 1998.

[57]

[4] CA No 158 of 1991 and 192 of 1991, 4 October 1991.

At a glance

Court

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Catchwords

Source

Catchwords

Judgment (57 paragraphs)

Parties