R v Horne [2022] QCA 90

SUPREME COURT OF QUEENSLAND

CITATION: R v Horne [2022] QCA 90

PARTIES: R / v / HORNE, Cameron David / (appellant)

FILE NO/S: CA No 3 of 2022 / DC No 2775 of 2019

DIVISION: Court of Appeal

PROCEEDING: Appeal against Conviction

ORIGINATING COURT: District Court at Brisbane – Date of Conviction: 17 December 2021 (Kent QC DCJ)

DELIVERED ON: 24 May 2022

DELIVERED AT: Brisbane

HEARING DATE: 4 April 2022

JUDGES: Sofronoff P and Morrison and Mullins JJA

ORDER: Appeal dismissed.

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – OTHER MATTERS – where the appellant plead not guilty to four counts of rape and one count of unlawful and indecent assault – where the appellant was in their mid-sixties at the time of offending – where the appellant was intoxicated at the time of offending – whether a defence under s 23(1)(a) of the Criminal Code (Qld) is available if the appellant is intoxicated to any extent / Criminal Code (Qld), s 23, s 26, s 27, s 28 / Kaporonovski v The Queen (1973) 133 CLR 209; [1973] HCA 35, considered / R v Corbett [1903] St R Qd 246, considered / R v Falconer (1990) 171 CLR 30; [1990] HCA 49, considered / R v Kusu [1981] Qd R 136, followed / R v O'Connor (1980) 146 CLR 64; [1980] HCA 17, explained / Re Bromage [1991] 1 Qd R 1, considered / Stefanski v Western Australia [2022] WASCA 5, considered

COUNSEL: S C Holt QC, with Z G Brereton, for the appellant / D L Meredith for the respondent

SOLICITORS: McGinness and Associates for the appellant / Director of Public Prosecutions (Queensland) for the respondent

1. SOFRONOFF P: The appellant is a man in his early sixties. For most of his life he worked for a large Australian bank where he eventually became the manager of an important part of its business in Queensland. After many years he left the bank and began to work as an intermediary between lenders and their customers. He has a long and enduring marriage and three successful adult children. He has never been convicted of any offence.

2. The appellant was invited to a lunch party to be held on 17 October 2018 in a venue at a marina. His friend who invited him told him that it would be a “big lunch” and that it would feature a mud crab menu. There would be several “bankers” at the lunch and its purpose appears to have been to permit the guests to “network”.¹

3. The appellant had recently suffered some health complications and for that reason he had been prescribed a series of antibiotic medicines. On the day before the lunch the appellant consulted his general practitioner and told him that he intended attending a lunch and drinking alcohol there. He had ceased taking the antibiotics on that day, the day before the lunch. He had not drunk any alcohol for a while because he knew that he ought not drink while taking that medicine. According to the appellant’s evidence, his doctor’s response was, “probably, you know, a (sic) take it easy, probably” and the appellant added, “… but, you know, that’s what I do”.² Because he intended to drink at the lunch the appellant planned to use a taxi to get home.³

4. The complainant was another of the guests. She came with her partner. They owned a boat that was berthed at the marina. According to her evidence, drinks were served before lunch and the lunch proper began at some time between 1.00 and 1.30 pm and continued until about 3.30 pm. Wine was served and the complainant said that she drank two or three glasses of wine during the party.⁴

5. When the lunch ended the complainant and her husband invited some of their fellow guests to come to inspect their boat which was berthed nearby. One of those invited was the appellant. On the boat more drinks were served. The complainant said that “at most” she had one drink at that time.⁵ She had lately felt unwell and she began to feel unwell again and so she excused herself and left the group. She went to the main cabin on the boat, took a “cold and flu tablet”, removed her outer clothing and went to sleep in a bed under a doona.⁶

6. The cabin in which the complainant was sleeping could be entered through a door leading directly to the main part of the boat. This was the way the complainant had entered. There was an adjoining bathroom containing a shower and toilet, the door of which opened directly into this cabin. This bathroom had a second door which opened onto a second toilet which was accessible directly from the main part of the boat. This was regarded as the “guest bathroom”.⁷ Thus, a person could enter the toilet available for use by guests and could, from there, enter the private bathroom next to the main cabin and then pass into the cabin in which the complainant was sleeping. Such a person might appear simply to be visiting the guest toilet because any subsequent entry from there into the private bathroom and thence into the main cabin would not be visible to anyone in the main part of the boat.

7. The complainant was woken by a man standing by her bed who had inserted his fingers into her vagina. At first, she thought it was her partner, but she then realised that it was a stranger. She said that she was shocked into immobility.⁸ After a few seconds, this man withdrew his fingers and left the cabin by way of the adjoining bathroom, shutting its door behind him.

8. About 20 minutes later, the same man returned by way of the bathroom door and repeated his act. The complainant protested verbally and pushed the man’s arm away.⁹ Once again, the man left the cabin by way of the bathroom. A further 15 or 20 minutes later, the man reappeared out of the bathroom.¹⁰ The complainant said that she was in too shocked a state to defend herself but tried to push his arm away. Once more the man digitally penetrated the complainant. On a fourth occasion, the man returned. This time the complainant held her legs together tightly.¹¹ The man stroked the complainant’s breasts over her bra using both of his hands. He spoke to the complainant. He said, “I am [name of complainant’s partner] tonight.” The complainant pushed his hands away. The man left through the bathroom.

9. The man came back on a fifth and final occasion. He put his fingers into the complainant’s vagina. He said, “How can I see you again?”.¹² On this occasion the complainant said that she was able to regain some of her self-composure and she kicked him in the torso. This made the man stumble out of the main door of the cabin where he fell over. Through the open main door of the cabin, the complainant saw her friends coming to man’s aid and helping him get to his feet.

10. The man who did these acts was the appellant.

11. The complainant remained on the bunk but could hear the guests’ conversation outside the cabin. She heard one of her friends ask the appellant, “Gee, what’s wrong with your bladder?” He replied, “Oh, it’s just my beer bladder”.¹³

12. The guests finally left the boat at about 7.00 pm and the complainant immediately told her partner what the appellant had done to her. The complainant spent the next day in bed but on the following day she telephoned her friend who had helped the appellant regain his feet.¹⁴ She asked her friend who that man was. Her friend identified the appellant and the complainant then told her what he had done. In her evidence at the trial this friend said that she noticed the appellant visiting the toilet frequently, about three times, and asked him about it. She recalled his telling her that he had a “beer bladder”.¹⁵

13. Several witnesses gave evidence about the appellant’s state of intoxication after they all departed. The complainant’s friend, to whom reference has been made, gave the following evidence:¹⁶

“Can you describe how he was walking?---Staggering. I had my arm – we had our arms in arms, so that he didn’t fall into the water.

All right. Okay. And how long did you walk with him for in that state?---All the way to the Squadron.

Okay. Now, and you got up to the – to where the restaurant is, with [the appellant]; is that correct?---That’s correct, yes.

And it’s at that point that he said that he needed to go home; is that right?---He – I think on the way ho – on the way walking up there, he said, ‘I just need to go home’.

All right?---And I said, ‘Well, you need some food’.”

14. Another witness gave this evidence:¹⁷

“All right. Can you describe how [the appellant] was presenting to you?---I – I think from what I can recall in terms of what I said in the statement, there was definitely a – a level of – a bit of slurriness, but nothing that was profound or anything like that. I think everyone had a – had a great day. It was – was out in the sun, so it was – it was something that was, again, just – just nothing obvious in terms of anything negative or – or – just I think – just a day of - - -

That’s okay. I’m – I guess I’m just mostly interested in specifically how he – your observations of him?---Right. Okay. Nothing obvious in – in terms of any – any negative behaviours or – or anything along those lines.

All right. And you mentioned some slurriness just before?---Yeah. Just – again, just part of lunch and again, not being at the table at that end of – I don’t know how much was consumed or not, but a little bit of slurriness. But yeah, nothing - - -”

15. After the complainant reported the matter to police, two pretext calls were made. The first of these was made a little more than a week after the lunch by the man who had invited the appellant to the lunch and who knew him well. At this point the appellant did not know that the complainant had reported the matter to police. The call contained the following exchanges:¹⁸

“DTR: Mate, um [the complainant] um has made ah an accusation of sexual assault against you on the--

APPELLANT: [INDISTINCT] --

DTR: On the boat after the mud crab lunch.

APPELLANT: Oh, god. I was absolutely trolleyed.

…

DTR: I’ve, I’ve sat on in and dwelt, dwelt upon it. Um, [the complainant’s friend] and I have spoken about it and I just thought, well, I’m, I’m gonna ring you--

APPELLANT: Oh, you gotta, you gotta, you gotta do it, mate. Um, yeah. I mean I, yeah. Absolutely trolleyed and I’m--

DTR: And you--

APPELLANT: [INDISTINCT]--

DTR: You’ve got, you’ve got no recollection?

APPELLANT: No. No, no. I, I, I mean that’s why I just had, well, [INDISTINCT], yeah. I was vomiting. Um, I mean I was trolleyed.

DTR: Mm.

APPELLANT: Absolutely trolleyed.

…

APPELLANT: No-, not alright. Th-, th-, th-, i-, it’s, I mean I hadn’t been drinking for, you know, apart from the party I hadn’t been drinking for weeks anyway so it was just [INDISTINCT]. I was spastic by the time I got home but I didn’t know--

DTR: Mm.

APPELLANT: Whether it was mud crab, whether it was---

DTR: Mm.

APPELLANT: [INDISTINCT] booze or whatever but ah I was just off my face.”

16. The second pretext call was made to the appellant by the complainant on the day after the first pretext call and contained the following:¹⁹

“COMPLAINANT: And you know, you know what occurred.

APPELLANT: O-, I um yep. It was, it was very, very hazy for me, …, I have to say, and [INDISTINCT] I’m not trying to be--

COMPLAINANT: [the complainant’s partner]--

APPELLANT: [INDISTINCT] or whatever ‘cause---

COMPLAINANT: Um--

APPELLANT: Um, because um, yeah. I, I was on medication and ah, which I shouldn’t have been drinking on but that, so that makes, ah very stupid from my point of view--

COMPLAINANT: …---

APPELLANT: ‘Cause I shouldn’t have been drinking---

…

COMPLAINANT: You didn’t even urinate. You just flushed the toilet but s-, I know that you reme-, you must remember,… I--

APPELLANT: Look, I remember, yeah. Look, I’m not trying to be [INDISTINCT] here ‘cause I was on, I had [INDISTINCT]. Anyway, don’t want to bore you with that but [INDISTINCT] drink alcohol with it but I did--

COMPLAINANT: But, but--

APPELLANT: So I, I collapsed in my garden. I [INDISTINCT], I was unconscious in my garden for three hours. I don’t even know how I got home. So, ah Jesus.”

17. The appellant was charged with four counts of rape and one count of indecent assault.

18. None of the evidence set out above was challenged. His case was put to the jury as follows by Kent DCJ, who presided at the trial:²⁰

“For section 23, is it reasonably possible – that is, and these are two sides of the same coin, is it reasonably possible – that is, is it not excluded beyond a reasonable doubt by the prosecution, that the acts alleged against [the appellant] occurred independently of the exercise of his will? That is, that he was not conscious of doing the acts or they occurred independently of his control.

So if that is a reasonable possibility, you go to question 4. That question is, has the Crown satisfied you beyond a reasonable doubt that [the appellant] was intoxicated by alcohol when he did the acts that are alleged? If the answer to that is yes, you go to question 5 which deals with the second provision that I have mentioned. So if no to question 3, you go to question 5. If yes to question 3, you go to question 4, and possibly, you go to question 5 again. But if no to question 4, you find [the appellant] not guilty, that is because it turns on whether the Crown has satisfied you beyond a reasonable doubt that [the appellant] was intoxicated by alcohol when he did the acts alleged. The point being that voluntary intoxication by alcohol is not a Defence.

So for 27(2), that is this question of delusion, question 5 is, is it reasonably possible – that is, has the Crown not excluded it beyond a reasonable doubt – that [the appellant] did not intend to become intoxicated. If the answer to that is yes, that is, if the Crown has not excluded that beyond a reasonable doubt, you go to question 6. And that is, is it reasonably possible – again, that is, has the Crown not excluded this beyond a reasonable doubt - that at the time of doing the act, [the appellant’s] mind was affected by a delusion [the complainant] was consenting? If the answer is yes – that is, if the Crown has not excluded it, you would find him not guilty. If the answer is no – that is, if the Crown has excluded it, you would find him guilty.”

19. There was another part to the defence case which the learned judge summarised as follows:²¹

“The other provision that deals with what is said to be, on the Defence argument, a delusional state, provides this relevantly: that a person whose mind at the time of the person’s doing or omitting to do an act is affected by delusions on some specific matter or matters, but who is not otherwise entitled to the benefit of the broader concepts of insanity – it is a subsection of that broader concept, but distinct from it – is criminally responsible for the act or omission to the same extent as if the real state of things had been such as the person was induced by the delusions to believe to exist.

The operative delusion contended for by the Defence in this case, which they say the Crown must exclude is an apparent delusion about a belief as to consent, which no one suggests could be reasonable, but it does not have to be if it comes into the operative provision. So the second page of the handout deals with this part of the question trail.”

20. At the trial, the appellant accepted that the decision of the Court of Criminal Appeal in R v Kusu²² bound the trial judge to direct the jury that s 23 of the Criminal Code (Qld) could not avail the appellant if the Crown proved that he was intoxicated and nor could s 27(2) assist him if the Crown proved that he was intoxicated.²³

21. In this appeal the appellant challenged the correctness of Kusu. He submitted that the reasoning of the majority, WB Campbell and Matthews JJ, was wrong and that this Court should accept as correct the judgment of Macrossan J (as his Honour then was).

22. WB Campbell J, who wrote the leading judgment in Kusu, observed that in Queensland it has always been accepted that self-induced intoxication does not relieve a person from responsibility for a criminal act.²⁴ His Honour cited a direction that Griffiths CJ had given a jury in R v Corbett:²⁵

“It was suggested by counsel that if the prisoner was so intoxicated that he did not know what he was doing at the time, he is not criminally responsible for Gillespie’s death. That is not the law, and never was the law. Drunkenness is never a defence unless it amounts to unsoundness of mind. No one can escape liability merely because he is intoxicated. If you come to the conclusion that the prisoner was so intoxicated that his mind was absolutely disordered, and he was thus deprived of capacity to understand what he was doing, or of capacity to control his actions, or of capacity to know that he ought not to do the act with which he is charged, you may be able to find him not guilty on the ground of insanity. But if he intentionally caused himself to become intoxicated, that defence is not open to him. It is however, a defence if his mind was so disordered as to be unsound within the meaning of s. 27 of the Criminal Code, and if this condition was caused by intoxication which arose without any intention on his part.”

23. WB Campbell J observed that this construction of s 28 had always been followed in Queensland.²⁶ His Honour contrasted the common law position in Australia as established by R v O'Connor,²⁷ in which the High Court, by a majority,²⁸ decided that at common law, intoxication, whether voluntary or involuntary, was relevant to the question whether an accused had the mental element necessary for criminal liability. In coming to the conclusion, the majority reasoned by reference to concepts of “basic intent” and “specific intent”, ideas that are alien to the scheme created by the Criminal Code.²⁹ In dissenting, Wilson J said:³⁰

“As a statement of general principle it is incontestable that no crime can be committed unless there is a voluntary act or omission on the part of the accused. However, there has long been a recognized exception to this principle in the case of self-induced intoxication (see e.g. ss. 23 and 28, Criminal Codes, Queensland and Western Australia).”

24. His Honour went on to observe that the effect of the Codes of Queensland and Western Australia was to reflect the common law as it had stood for a long time.³¹

25. In R v Falconer,³² the High Court considered ss 23, 26, 27 and 28 of the Western Australia Code. After referring to the difference between the common law M’Naghten Rules and the “Code’s umbrella term of ‘unsound mind’”, Mason CJ and Brennan and McHugh JJ said:³³

“Under the Code, the practical difference in the operation of s. 23 on the one hand and ss. 26, 27 and 28 on the other depends on the aetiology of the condition which deprives the accused of the capacity to control his actions: if mental disease or natural mental infirmity (under s. 27) or a disorder of the mind (under s. 28) are proved to have deprived the accused of the capacity to control his actions, the verdict of acquittal must be qualified under s. 653; if it be a reasonable hypothesis on the evidence that some other cause, by itself, deprived the accused of that capacity, the verdict is an absolute acquittal. The dichotomy between automatism caused by unsoundness of mind and automatism otherwise caused is reflected in the verdict to be returned.”

26. So too, Toohey J said that s 23 is not concerned with “insanity”, referring to the marginal note to s 27. His Honour said that in the context in which they appear and having regard to the need to give s 27 its full operation, the provisions have the effect that if a person is unable to control his or her actions by reason of a mental disease or natural mental infirmity, it is s 27 that applies.³⁴

27. To the same effect, Gaudron J said:³⁵

“Given that the Code adopts, albeit with those differences imported by its terms, the concepts which the common law selects as determinative of criminal responsibility, ss. 27 and 28 of the Code should be approached on the same basis. Indeed, any other approach would produce results so incongruous that the law would be nonsensical. Thus, evidence postulating a mental state involving a disease of the mind, natural mental infirmity or a mind disordered in one of the ways specified in s. 28 should be seen as raising a defence under s. 27 or s. 28 and not as raising voluntariness or intent as a separate and distinct issue.”

28. Most recently, in Stefanski v Western Australia³⁶ Buss P said that it was well established that s 27 and s 28 of the Code govern cases involving alleged insanity or intoxication that might have otherwise fallen within the Western Australian equivalent to s 23 of the Queensland Code.³⁷ Of the cases cited by Buss P to support that proposition, two should be noticed.

29. In Kaporonovski v The Queen,³⁸ Gibbs J said:

“Of course other sections of the Code may render the exculpatory provisions of s. 23 inapplicable; for example, s. 7 may render a person who falls within its provisions criminally liable for an offence committed by another, and ss. 27 and 28 will govern cases of insanity and intoxication that might otherwise have fallen within s. 23.”

30. In Re Bromage,³⁹ McPherson J said:

“In the application of ss 23, 27, and 28 of the Code, there is an area in which, at least potentially, the provisions of those sections tend to overlap. An act occurring independently of the will in terms of s. 23 is in theory capable of being ascribed to a state of mental disease under s. 27 resulting from intoxication within s. 28. However, in Kaporonovski v. The Queen (1973) 133 C.L.R. 209, at 227, Gibbs J. recognised that it is s. 27 and s. 28 that govern cases of insanity and intoxication that might otherwise fall under s. 23. Broadly stated, acts and states of mind resulting from intoxication attract the particular provisions of s. 28; they must be considered in the context of that section, and not under the less specific provisions of s. 27: see R. v. Corbett [1903] St.R.Qd 246; R. v. Smith [1949] St.R.Qd. 126, 130-131; or under the even more general provisions of s. 23: see R. v. Kusu [1981] Qd.R. 136. Likewise, cases of insanity belong under s. 27 and not s. 23: R. v. Foy [1960] Qd.R. 225; R. v. Mursic [1980] Qd.R. 482. Only if the state of mind, if any, is neither insanity nor intoxication can exemption from criminal responsibility be claimed under s. 23 in respect of an act occurring independently of the will, as with the kind of post-concussional automatism considered in Cooper v. McKenna, ex parte Cooper [1960] Qd.R. 406.”

31. That is to say, s 23 does not apply if the issue is involuntariness due to unsoundness of mind, delusion or a disordered mind because the operation of s 23 is excluded by necessary implication by ss 27 and 28.

32. This consistent line of high authority makes it impossible to accept the appellant’s challenge to Kusu because that is a decision that accords with long established precedent. It only remains to consider the significance of Macrossan J’s consideration of the relationship between s 23 and s 28 in Kusu.

33. Macrossan J prefaced his conclusions by referring to the dictum of Gibbs J in O'Connor⁴⁰ where his Honour said that evidence of an accused’s state of intoxication is not necessarily irrelevant to criminal responsibility despite not furnishing a defence itself. Intoxication may be relevant to “other questions in issue”. Macrossan J then referred to Corbett,⁴¹ in which the accused had shot and killed his victim. The accused explained that he was drunk and could not explain what had happened “although he thought that its trigger must have been caught in some part of his swag or in the furniture”.⁴² Consistently, Griffith CJ directed the jury that:

“If the discharging of the rifle which caused Gillespie’s death was a pure accident, the prisoner is not responsible, whether he was intoxicated or not.”

34. Accordingly, Macrossan J observed that drunken people, like others, have accidents and that intoxicated persons should not be deprived of the benefit of s 23 because their drunkenness may have contributed to a relevant event.⁴³ Of course, in such a case s 23 might be excluded by reason of the operation of the Code’s provisions concerning criminal negligence.

35. In my respectful opinion, Macrossan J’s reasons do no more than identify that in a case of involuntariness under s 23, in cases involving what used to be called ‘accident’, an accused’s intoxication might be relevant to prove that a particular act, such as pulling a trigger, was unintentional, in part because of the lack of bodily control caused by drunkenness. His Honour was not considering the case of an accused who seeks to establish the kind of involuntariness contemplated by ss 27 and 28. That is what the appellant wishes to do and, in my respectful opinion, the only construction of s 28 that is open precludes that interpretation.

36. For these reasons the appeal should be dismissed.

37. MORRISON JA: I have had the advantage of reading the reasons for judgment of Sofronoff P. I agree with those reasons and with the orders proposed by his Honour.

38. MULLINS JA: I agree with Sofronoff P.

Footnotes

1. AB at 253.27-253.33, 27.44. ↩

2. AB at 254.15-254.35. ↩

3. AB at 254.38. ↩

4. AB at 128.10. ↩

5. AB at 129.21-129.23. ↩

6. AB at 129.26-129.34, 136.08. ↩

7. AB at 134.14-134.35. ↩

8. AB at 137.02-137.13. ↩

9. AB at 139.07-140.14. ↩

10. AB at 141.03 -141.04. ↩

11. AB at 146.05-146.07. ↩

12. AB at 146.14. ↩

13. AB at 145.06. ↩

14. AB at 150.02-150.06. ↩

15. AB at 199.08. ↩