R v Hughes [1998] QCA 279

Court of Appeal (Qld)|1998-09-18|Before: Before McMurdo P, McPherson J, Ambrose J, Mr P, Murdo P

1 The appellant appeals against his conviction in the District Court at Townsville on 8 April 1998 on three counts of rape, two counts of attempted rape and three counts of indecent assault with circumstances of aggravation.

2 The appellant originally claimed ten grounds of appeal, but now wishes to argue only two grounds. Firstly, he claims that the learned trial judge erred in directing the jury that the general evidence of the accused constitutes lies capable of corroborating the account of the complainant. Secondly, he has been given leave to add a fresh ground of appeal, namely that the learned trial judge erred in directing the jury that the complainant's virginity could be used by the jury to determine the issue of consent in relation to this case.

4 The appellant's case was that sexual intercourse and other acts took place with consent or with his honest and reasonable belief that the complainant was consenting.

5 The complainant gave evidence that she resided in a small house on the farm with the appellant, a man called Graham Steele and two other girls. The females slept in one room and the males in another. She spent a lot of time with the complainant, both working and socialising, in the ten days prior to the offences.

6 On her third day on the farm, she agreed to give him a massage and was a little surprised to find him naked on a bed in his room. She gave him a massage and he asked if she would like a massage. She agreed, took off her t-shirt, kept her trousers on, lay down on the bed and received a massage on her back. When he massaged the backs of her legs whilst he was naked so that she could feel his penis on the back of her legs, she said, "No, I don't want to do that".

7 Two days later, they spent some time together talking. He tried to hold her hand but she withdrew it. He put his arm around her for a short time with her consent.

8 The complainant regarded the appellant as a friend. Sometimes they put arms around each other. He kissed her on the cheek twice and she kissed him on his cheek on one occasion. Five days later she saw him flirting with another girl and thought he was trying to get her attention. He asked for a massage that night and although she initially refused, she then agreed as he had a pain in his back, providing the massage was only of his back and took place in the TV room. She gave him a soft massage on his back with his clothes on. He then gave her a massage with her t-shirt off.

9 On the day of the offences, ominously Friday, 13 December, they took the afternoon ride together and showed guests how to swim the horses. They were on good terms, and the appellant asked her if she would go with him to the koala trail and the Forts. She initially said no, but was persuaded it would be worthwhile to see some koalas. The complainant took sunset photos over the beaches. They sat on a small ledge and the appellant said he loved her. The complainant said she did not love him and wanted nothing to do with him. He tried to put his arm around her. She said no. He said he wanted to have sex with her. She said she did not want that. He said he wanted to have sex now and he would do it anyway; if she refused he would use violence. She started to cry and scream. He put his hand on her mouth with his other arm around her and held her strongly. He said that they would not go off the ledge until she promised to have sex. She agreed because she was frightened she would fall. She said she didn't want to have sex with him and told him she was a virgin. He said he loved her. He would "do it now" either with violence or gently if she did not refuse. He took off their clothes and told her to lie down on the rock. She would not. He told her to lie on the sand. She said she did not want to do that. She was frightened. The nearest house was 2-3 kilometres away and she felt at the mercy of the appellant. She was worried about getting pregnant. He said he had condoms. He started to kiss her cheek, her mouth and breasts. She complied as she was frightened by his threats of violence. He put his finger in her vagina. She could feel his tongue on her vagina. He pushed her legs apart. He was having trouble putting his penis inside her. She tried to hold her legs together. He told her to take hold of his penis. He was wearing a condom. He still could not penetrate her and hurt her. He made her stand up against a rock and managed to penetrate her first from the front and then from the rear. He told her to sit on his hips and held onto her back and again tried to penetrate her. He told her to use her mouth. She was reluctant and crying but was forced to give him oral sex. The condom had gone. He told her to kneel on her hands and knees and penetrated her from behind, then telling her to get on top of him. He forced her to commit oral sex whilst he was licking her vagina. He put her on the ground and again tried to penetrate her. She said, "that's enough. I want to go home" but he said, pushing really hard, "No, we won't go home until I'm satisfied". They went into a building with concrete on the floor. He got on top of her and penetrated her using his spit as lubricant. She could feel his penis inside her for about 10 minutes.

10 He said that they should go back. They put on their clothes. He gave her a cigarette and said, "I know you are upset and confused now and I hope it wasn't too bad for you". He held her hand, put his arm around her and tried to hug her and kiss her. She pushed him away and ran into the house.

11 She made a complaint to Graham Steele and then to the owners of the farm, who called the police. She was very distressed.

12 She bled from the vagina for four to five days, had pain in her abdomen and some bruising and scars on the back of her knees and her hands.

13 After the complainant told Graham Steele what had happened, he asked the appellant, "Did you rape this girl?" The appellant replied, "I sort of did and I sort of didn't". Steele said, "Why did you do it?" and the appellant said, "I don't know, one minute I was sitting talking with her and the next minute I just snapped, I don't know".

14 John Hyde, the owner of Bluey's Horse Ranch, remembers the complainant upset and sobbing. He asked, "Did he rape you?", and the complainant said, "Yes". He telephoned the police. The complainant was at first uncertain about involving police as it would interfere with her travelling.

15 Mrs Jay Hyde gave evidence that the complainant and the appellant seemed friendly towards each other, often leaning on each other, or draping arms over each other and she assumed they were "an item". After the complaint, she asked the appellant if he had done what he had been accused of doing. He said, "I did but I didn't". She said, "What do you mean, did you do it?" and he said, "Not the way you think, I didn't".

16 Dr Ward took samples from the appellant and examined him at 11.55 a.m. on 14 December 1996. He noticed injuries to the appellant. (The appellant had been assaulted by a neighbour.) Dr Ward, as Government Medical Officer, had examined several hundred complainants in sex cases. He was asked whether the injuries suffered by the complainant could occur during consensual intercourse for the first time. He replied, "I'm just trying to think of all the things that you mention there. It would be very hard to determine. I would have to say it's sort of unusual for all of those particular findings to be discovered after normal intercourse. There would have to be a number of individual acts with a certain amount of pressure being applied for those findings to occur."

17 Dr Hyrskow, a general practitioner on Magnetic Island, examined the complainant on 13 December 1996 at about 11.55 p.m. He noted abrasions on both knees and a reasonably long scratch down her right shin; bruising on the left side of her cheek; and scratches over the spine and shoulder blade area, left elbow and buttocks. The scratches on the spine were caused by moderate force. The injuries would cause moderate pain and were recent, within hours. A genital examination showed tenderness around the pubic bone, tender labia minora with evidence of recent bleeding and bruising; the entrance to the vagina was very tender and bruised; the fourchette was tender; the hymen was broken and lacerated with some blood on a tear, the perineum was a little tender, the lower vagina was torn on the left and right sides with bruising, and further inside the vaginal wall was red, swollen and bruised with a 1cm tear. The complainant was in pain during the examination.

18 Dr Hyrskow was asked, "Were the injuries consistent with the use of a degree of force? --- Oh, yes. I should imagine the penetration would have been forced because the number of times that I have examined people following - women following intercourse, this kind of damage was certainly not evident ... in fact sometimes examining a vagina after delivery, I saw fewer injuries than on this occasion". He had examined half a dozen women after their first act of intercourse.

"HIS HONOUR: Well, how would you compare this case with those? --- Your Honour, there was no damage to the extreme extent that I witnessed on Miss Baur compared to any of those, none at all. There was a little bit of reddening in the fourchette and a little bit of reddening in the vagina and if the girl was a virgin, the hymen was broken. That was all. They didn't have those superficial and also very deep injuries and splits to the vagina that Miss Baur had.

What conclusion would you draw from that? --- I would draw the collusion (sic) that the girls that I had examined were willing participants, whereas in this instance I suspect -----"

At this stage, counsel for the appellant understandably objected on the basis that that was a question for the jury, rather than for the doctor. The objection was overruled and his Honour requested the doctor to answer the question. Dr Hyrskow said:

"During consensual intercourse there is usually a fair bit of natural lubrication, both from the penis and vagina which has the lubricant to make the passage of penis in the vagina reasonably smooth. There is also relaxation of muscles around the vagina and this allows the penetration and entry of the penis in this instance, I think there was no lubrication on the part of the woman and obviously the man wearing a condom, it couldn't have been from the penis and also I think there was some spasm of the muscles stopping or prohibiting the entry of the penis, so there was force used for the penis to penetrate, anyway."

20 The appellant, who was 38 years old, was interviewed by police and the taped interview was before the jury. The appellant told of his relationship with the complainant. On 13 December 1996 at dusk they went on the koala walk up to the Forts. They sat down on a ledge and talked. She pushed his arm away and jumped back towards the corner. She screamed, "went ballistic" and said "no" to a suggestion from him that they just "do it". He covered her mouth simply to console her. She said, "I've got something to tell you, can we go down to the bottom?" He agreed. She said, "I've never been with a man before" and he said he would be gentle. He undressed her and took his clothes off and they had intercourse. At times she would say I don't want to do this or I don't want to do that or this isn't working so there was some difficulty in actually finishing the act, but eventually he succeeded. She was responsive and they returned to the ranch. He said, "Was it nice for you?" and she said, "It would have been better tomorrow night". She then said, "Why did you do it?" He said, "What", she said, "Why did you rape me?" and that was the first indication he had that she did not consent.

"And were, in your opinion, these acts with consent? --- ? Well, she never said yes. But she did respond. I mean, she ------

In what way did she respond? --- Well, I mean, she was thrusting with me and she was rubbing my back and kissing me and grabbing my - the back of my head."

"Was it the right or the wrong thing to do, to have sex with Caroline last night? --- Well, it was probably the wrong thing to do. But it didn't feel like it was wrong.

Do you think that Caroline wanted to have sex with you last night? --- Not initially, no. But like I said she participated when we did, actively and got quite involved.

Why do you think she made a complaint to the police in relation to the sex? --- I'm not really sure. I guess maybe it was a result of our conversation when I suggested she should call the police. Maybe then she felt she needed to. See, after when it was over, I thought that maybe I'd done the wrong thing or maybe I'd gone too far. Possibly confused myself, I wasn't sure, you know. As I said she responded, you know, actively participated. At times there she took the initiative herself. She said she was confused and that's when I bought the subject up. At that time we were talking about her sleeping in my bed the night. At first she said, `That might be nice' and later on she said, `I don't know, I'm confused'. And that's when we talked about the police. I - I - I - let me say, I believed that initiating it was wrong, OK, but I don't believe that the act was wrong. I don't believe that. She participated, she was active, she was enjoying it.

Could it have been the case that once she'd been forced to give consent she completed what she had to do so that she'd get away from the Forts and get away from you? Could have that been so? --- Yes, possibly. But, no, it was more than that. I - I'm sure it was more than that, you know. She - she participated. She took the initiative at times."

There was no objection during the trial to questions of the appellant as to the reason why the complainant made a complaint to police. His Honour gave specific directions to the jury that the question was unfair and that it was not for the appellant to establish what was in the mind of the complainant.

23 The appellant gave evidence that the complainant did not consent with words but he believed she was consenting when she said, "I've never been with a man before". From that point she did not object, but for two occasions when she indicated she did not like something and he desisted. He believed all the acts were consensual.

24 The learned trial judge, in his summing up directed the jury as follows:

"Mrs Hyde, she said that when she drove up, she said, "I asked him had he done what he had been accused of. He said to me, "I did, but I didn't." I said, "What do you mean, did you do it?" He said, "No, not the way you think, I didn't." She said that it was like this "I said "Gary did you do that?" I didn't sort of stipulate what it was and he said, "I did, but I didn't." "Well, you tell me." He said, "No, not the way you think I did, no I didn't do that, that's correct."

It is a matter for you to consider that evidence but if you concluded that when he made that answer to Mrs Hyde, "Not the way you think I did, I didn't do that" and "I did, but I didn't" if you conclude that that really was a lie on his part you can use that also as corroborating the evidence of the complainant ..."

25 The words attributed to the appellant "I did, but I didn't. No, not the way you think I did, I didn't do that" can only mean the appellant was admitting intercourse but denying lack of consent. This was the appellant's case.

26 Before a jury can treat a statement of an accused person as a lie to prove guilt, or as corroboration of the complainant, there must be clear evidence of the untruthfulness of the accused person's statement, either from the accused person's admissions or from witnesses other than the complainant: see R. v. Lucas [1981] Q.B. 720 and Edwards v. The Queen [1993] HCA 63; (1993) 178 C.L.R. 193. His Honour failed to give this direction to the jury, merely telling them it was necessary for them to conclude "it was in fact a lie".

27 The respondent concedes the only independent evidence which could be capable of showing the appellant's statement to Mrs Hyde was a lie is, firstly, the injuries received by the complainant and, secondly, Dr Hyrskow's evidence about those injuries.

28 The injuries received by the complainant were significant and it is accepted that they were capable of supporting the complainant's evidence. Dr Ward said that although it would be unusual for all those injuries to be found after normal intercourse for the first time, such findings could occur after a number of individual acts with the application of a certain amount of pressure. Dr Ward's evidence was not in itself necessarily inconsistent with the account given by the appellant of vigorous, difficult, consensual sexual intercourse with a virgin.

29 Dr Hyrskow's evidence goes further than that of Dr Ward. Unfortunately, the questions asked by the trial judge of Dr Hyrskow (and set out earlier) solicited answers which were very close to swearing the issue of consent, a matter which was central to the jury's considerations. The doctor's evidence should have been limited to a description of the injuries received; his view as to what may have caused the injuries; the amount of force necessary to cause the injuries and any relevant factors that may have contributed to the injuries. It was speculative for him to comment in this case on whether or not the vagina was actually lubricated or the vaginal muscles were actually in spasm. He could comment on these issues in a general sense as being relevant factors in causing injury but it is for the jury to determine the facts of the case. The issue of consent was the crucial question for the jury. In the circumstances here, where the complainant was a virgin, forceful intercourse was not necessarily intercourse without consent. Whilst supportive of the complainant, neither Dr Hyrskow's evidence nor the complainant's injuries themselves can demonstrate that the appellant's statement to Mrs Hyde was a clear lie.

30 There is, therefore, no independent evidence showing that the statement of the appellant to Mrs Hyde was a clear lie. In these circumstances, if the jury were to be satisfied that statement was a lie, they would simply be preferring the complainant's evidence to that of the appellant.

31 His Honour failed to isolate for the jury the independent clear evidence that was capable of showing the appellant's statement to Mrs Hyde was a lie. There was in fact no such independent clear evidence in this case.

32 His Honour therefore erred in instructing the jury that they could consider the appellant's answer to Mrs Hyde, "Not the way you think I did, I didn't do that ... I did but I didn't" as a lie capable of corroborating or supporting the evidence of the complainant.

Should the proviso to s. 668E(1A) of the Code be applied?

33 The respondent urges that as the case against the appellant was strong, it is appropriate that the proviso to s. 668E(1A) of the Code be applied, in that there has been no substantial miscarriage of justice.

34 The essential issue was whether the Crown satisfied the jury beyond reasonable doubt that the complainant was not consenting and that the appellant did not honestly or reasonably believe that she was consenting to the acts constituting the charges. The credibility of both the complainant and the appellant, who gave evidence, was crucial to their deliberations.

35 In many ways, the case against the appellant was a strong one. There was a considerable body of independent evidence supporting the complainant's version, namely her distressed condition immediately after the incident, the injuries suffered by her which Dr Hyrskow indicated were consistent with forceful sexual intercourse; the conversations between the appellant and Mr Steele and portions of the appellant's record of interview with police. Regrettably, the complainant will have to return from Germany to give evidence in any re-trial.

36 It is my view that a wrong direction in law from the trial judge in the summing-up, that a statement made by the appellant shortly after the incident could be found by them to be a lie capable of corroborating the complainant's version, must, in this case, constitute a substantial miscarriage of justice as the credibility of the complainant and the appellant is the central issue. The proviso can only be applied if a reasonable jury properly directed on the admissible evidence would without doubt convict. Despite the considerable strengths of the Crown case, that cannot be said here.

37 In my view, the appeal must be allowed, the convictions quashed and a new trial ordered.

38 As there may be a re-trial, it is prudent to deal with the second ground of appeal in case this is of some assistance.

39 At the commencement of the trial, defence counsel objected to the Crown leading evidence that the complainant was a virgin immediately prior to the commission of the offences. It is difficult to see how this trial could be conducted without such evidence being led. That evidence was essential to the appellant's cross examination of medical witnesses to explain the not insignificant injuries to her genital area.

40 His Honour directed the jury in the following terms:

"There has been evidence of the complainant's virginity in this case, and the complainant gave evidence that she was a virgin at the time. That was supported by the evidence of the doctor, Dr Hyrskow. That evidence is relevant to the issue of consent and also to the credit of the complainant on the rape charges only. It applies to the rape charges. The fact that a girl is not only young and inexperienced, and those matters are matters for you, but in particular, sexually inexperienced, may assist in assessing the likelihood or otherwise of the accounts given on both sides.

It is relevant to the issue of consent. Her character as to chastity is of probative value as to judging the likelihood of consent in this particular case, and in these particular circumstances.

Her assent to what happened is the material matter in issue in this case. In determining that question, which is a purely mental act, it is important to ascertain or consider whether her consent would, from her previous habits, be the natural result of her mind or whether it would be inconsistent with her life up to this point. Would it be the natural result of her mind to have intercourse with this man under the circumstances at that time, having regard to her past history of chastity? Would it be inconsistent with her life up until that point of time?

It is relevant for the purpose of tending to show whether it was more probable or not that she would consent at this time and in these circumstances and with this man. It is probative of her good character. It does not necessary establish it, but it is probative of it. It is evidence of it. Is it likely that she would agree to losing her virginity to this man at this time, at that place in those circumstances? Those are matters for you to consider in relation to the issue of consent on the rape charges."

41 Nothing in the Criminal Law (Sexual Offences) Act 1978-1987 specifically excludes the leading of evidence of the complainant's virginity, although s. 4 excludes evidence as to the general reputation of the complainant with respect to chastity.

42 In Allingham v. R. [1991] 1 Qd.R. 429, Williams J. discussed the history of rules of evidence relating to virginity and noted at 439:

"The reported cases are generally concerned with the relevance of, and limitations on, cross-examination as to the complainant's bad character. but there are indications that, from time to time evidence of the complainant's virginity was lead either as establishing her good character or as being relevant to the issue of consent." ...

"... a prudent prosecutor would not lead evidence of the fact of virginity unless it was in the circumstances material to the issue of consent. For example if the defence contention was that the girl voluntarily participated in some sophisticated sexual practice, evidence that in fact she was a virgin immediately prior thereto could be very material to the jury's deliberations."

"I am of the view that the prosecution ought not to elicit from the complainant evidence as to her virginity unless the fact of virginity is arguably relevant to an issue, such as consent, at the trial. These days there would probably be relatively few cases where that would be the position. But if the fact of virginity, or of some evidence tending to establish that fact (for example, medical evidence) emerged in the course of the Crown case then the trial would not be vitiated."

43 In this case, whilst there was evidence of a friendly relationship between the appellant and the complainant, consent was very much in issue. On the appellant's case, the complainant consented to performing oral sex upon him and to having oral sex performed upon her and consented to other acts of intercourse and attempted intercourse in various positions in an isolated and uncomfortable location. In those circumstances, her prior virginity could be said to have some relevance to the issue of consent. As Connolly and Williams JJ. noted in Allingham (supra), ordinarily, it would not be led by the prosecution because it would open up the possibility of cross examination of the complainant as to her prior sexual conduct.

44 The complainant's virginity immediately prior to the offences is particularly relevant in this case because of the injuries noted by the doctor who examined her. As counsel for the appellant conceded, it would have been impossible to keep the issue of the complainant's virginity from the jury as the appellant relies on it to explain the complainant's genital injuries. His Honour rightly told the jury in this case her prior virginity was relevant to the question of consent and as to her credit on that issue.

45 I would allow the appeal, quash the convictions and order a new trial.

1 I have read and agree with the reasons of the President in this appeal. There are two matters that I wish to add, in one instance by way of addition to what the President has said, and in the other simply by way of emphasis.

2 First, I very much doubt whether the appellant's statement, which is set out in para.24 of the President's reasons, was capable of being relied on in the character of an admission at all. To have said, when asked if he had done what he was accused of, "I did, but I didn't", and further that he had not done it "in the way you think", does not appear to me to be sufficiently unambiguous to amount to an admission of rape, or indeed of any other offence. On any view of it, the appellant's statement was equivocal, and either ought in the exercise of a proper discretion not to have been admitted in evidence at all, or at the very least to have been accompanied in summing up by a proper direction that it was dangerous to accept it as an admission, express or implied, of the truth of the accusation. See R. v. Doolan [1962] Qd.R. 449; R. v. Hart [1979] Qd.R. 8, 12.

3 The inherent equivocality of the appellant's statement that was relied on as an admission necessarily also meant it was not capable of being confidently regarded as having the character of a lie affording evidence of consciousness of guilt on the part of the appellant. This is a matter that is considered at some length in the reasons of the President. It is not necessary for me to add to what her Honour has said on the subject, save to say that this is yet another instance of an appeal against conviction succeeding through an error related to the application or expression of the doctrine of consciousness of guilt.

4 When consideration is given to the cost, time, anxiety and inconvenience of the further trial that will be inflicted on all concerned in this and other such matters, it is surely not too much to expect the prosecution to refrain from invoking the doctrine to support a charge against the accused except in circumstances where something substantial is plainly added to a Crown case. In far too many prosecutions, the allegation of consciousness of guilt, which is difficult to comprehend, let alone for a judge to explain to a jury, is little more than a self-serving prop to evidence that in some essential respect is by itself not particularly convincing. Logically, if proof of the offence is otherwise cogent, resorting to a supposed consciousness of guilt is not called for or required. If it is weak, reliance on it as a method of proof or persuasion is simply a make-weight that is likely to be fraught with risk of error and consequent mistrial.

5 The reasons for judgment of Deane, Dawson and Gaudron JJ. in Edwards v. The Queen [1993] HCA 63; (1993) 178 C.L.R. 193 lay down in authoritative terms the circumstances in which this form of implied admission is capable of constituting evidence. It should not be resorted to unless the requirements stated by their Honours are completely satisfied. Speaking generally, one would not think it ordinarily necessary to invoke it if the accused himself or herself has given evidence and been cross-examined about the statement in question. The jury will then have had an opportunity of observing and assessing his or her performance as a witness and of making up their minds about the truthfulness or otherwise of the account given in evidence before them.

6 I agree with the orders proposed by the President.

1 I agree with the reasons of McMurdo P. and with the proposed orders.

Law (Sexual Offences) Act 1978

Criminal Law (Sexual Offences) Act 1978

At a glance

Court

Decision date

Before

Source

Judgment (70 paragraphs)

Parties

Legislation Cited (2)