R v F [1996] QCA 490

Court of Appeal (Qld)|1996-12-06|Before: Pincus J, Thomas J, White J

The applicant was convicted of one count of rape, six counts of indecent dealing with a child under sixteen years, and four counts of wilful exposure to indecent material. The sentences were eight and a half years' imprisonment, three years' imprisonment and six months' imprisonment respectively, the sentences being concurrent.

The applicant had an insignificant criminal history consisting of four drink-driving offences and one of wilful damage followed by a breach of bail.

The next occasion was the rape. Whilst the complainant and the applicant were walking home after a meal he pulled her into a public toilet, sat her on the toilet seat and despite her resistance removed her pants. The penetration that was achieved was described as "only a little bit". The incident went on for about two or three minutes before she was able to push him away, pull up her pants and walk home. She later discovered that she was bleeding.

The relevant circumstances include the abuse of the applicant's authority as de facto father and his complete lack of remorse. There was no plea and the complainant was subjected to a trial where the defence seems to have been the hope of inducing doubt or disbelief of the complainant's allegations. There was no gratuitous violence or threats involved in this matter, but there was a persistence over a period of seven months. The persistence is illustrated by the fact that the rape and some other offences occurred after complaints had been made to the child's mother and after the accused had been confronted by the mother in respect of his conduct towards the complainant.

The court was supplied with a schedule of sentences for offences of this kind (in particular rape) in this court, but it will not be necessary to discuss the schedule. Counsel for the applicant essentially based his submission upon the case of Attorney-General v. A (CA 216 and 232 of 1992, unreported, 18 December 1992) where this court substituted a sentence of eight years' imprisonment with a recommendation after three years with respect to the rape of the daughter of the appellant's de facto wife, who was twelve years of age. There were two counts of rape and the appellant pleaded not guilty. He had some previous convictions but they were not regarded as of particular consequence. The court found that there had been no suggestion of any conduct of that kind before, and the case lacks the persistence and apparently planned conduct which is a feature of the present case.

That decision, and C (CA 262 of 1991, unreported, 3 March 1992) where this court upheld a sentence of eight years with a recommendation after two years may suggest that the present sentence was slightly on the high side. However when one takes into account that in C, although the complainant was only nine years old, there was a single isolated act, out of character, fuelled by alcohol and in the course of a post-traumatic stress syndrome, accompanied by remorse and an early plea of guilty, the difference may easily be accounted for. I do not propose to discuss the schedule. It tends to confirm that the present sentence is in range although possibly towards the higher end of it. I am aware also that often in a contested trial such as this the learned trial judge has greater than usual advantages over this court in observing the complainant, members of her family and the respondent and in perceiving the level of seriousness of the conduct. A considerable discretion is properly open to the sentencing judge in such cases. I would refuse the application for leave to appeal against sentence.

I have had the opportunity of reading the reasons for judgment of Pincus JA and Thomas J, and am in agreement with their Honours' observations on the "Weissensteiner direction". In the present case, apart from some unnecessary repetition, there was nothing said by the learned trial Judge to the jury which was not well within what has been regarded for a very long time as permissible, R v. Burdett (1820) 4 B & Ald 95; 106 E R 873.

I agree with Thomas J's observations on the application for leave to appeal against sentence. The sentence of eight and one half years for this rape may be regarded as at the higher end of the range, nonetheless, the persistent offending against the child over a period of some months, the undermining of her trust and confidence in her mother when the applicant denied any wrongdoing after the child had complained to her, and his lack of remorse, confirm that the sentence is not manifestly excessive.

I would dismiss the application for leave to appeal against sentence.

The notice of appeal complains of what was described in argument as a "Weissensteiner" direction (see [1993] HCA 65; (1993) 178 C.L.R. 217); a second ground included in the notice of appeal was that the verdicts were inconsistent and unsafe, but that was not pressed. One is left, then, with the argument that the judge gave incorrect directions to the jury as to the relevance of the appellant not having given evidence in contradiction of the complainant's version of events. The appellant neither gave nor called evidence.

I turn, now, to the major complaint, which is conveniently considered in the broad context of the law's current approach to the right of silence. Discussion of the right of silence and of the right not to incriminate oneself principally involves two issues. First, there is the question whether in a particular situation the right exists at all and, secondly, where (as is usual) it does exist, the question arises whether any adverse consequences may be permitted by the law to flow from its exercise. As to the first point, little need be said. The general law does not recognise any exceptions to the rule that it is lawful to decline to answer questions, if the answer may incriminate - indeed, the general law does not oblige citizens to answer questions at all, whether these are likely to incriminate or not. Parliaments have in some respects taken a different view; sometimes the obligation to answer questions, including incriminating questions, is made explicit, but the difficulties judges have encountered in this area have been principally concerned with statutes which have been argued to alter the general law implicitly. An interesting example is Police Service Board v. Morris [1985] HCA 9; (1985) 156 C.L.R. 397. Two policemen were charged with having disobeyed a lawful order, by refusing to answer questions when ordered to do so by an inspector; a regulation prohibited disobedience of lawful orders. The High Court held that, by the regulation, the privilege against self-incrimination was impliedly excluded; the discipline of the police force was thought to demand this result (see per Brennan J, as his Honour then was, at 413). A case having a similar tendency, in the same volume, is Controlled Consultants Pty Ltd v. Commissioner for Corporate Affairs [1985] HCA 6; (1985) 156 C.L.R. 385.

One starts from the commonsense proposition that a jury, left to itself, will often be inclined to hold it as a point against the accused, and in favour of the prosecution, that the accused has chosen to give no evidence. Some of the discussion since Weissensteiner seems to assume that prior to that decision the law was that juries were to be told not to follow that inclination. But that is not so; a number of statements of high authority, from Blatch v. Archer [1774] EngR 2; [1774] 98 E.R. 969 at 970, R v. Burdett 106 E.R. 873 at 898, Kops [1893] NSWLawRp 67; (1893) 14 L.R.(N.S.W.) 150, Tumahole Bereng [1949] A.C. 253 at 270, Morgan v. Babcock & Wilcox Ltd (1929) 43 C.L.R. 163, May v. O'Sullivan [1995] HCA 38; (1955) 92 C.L.R. 654 at 658-659, and Bridge (1964) 118 C.L.R. at 615 are usefully collected in the first set of reasons in Weissensteiner, at 225-227; there follows this remark:

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