Court of Appeal (Qld)|2006-10-20|Before: Jerrard JA, Jones and Atkinson JJSeparate reasons, for judgment of each member of the Court, each concurring as to the orders, made
Jerrard JA, Jones and Atkinson JJSeparate reasons, for judgment of each member of the Court, each concurring as to the orders, made
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
– APPEAL AND NEW TRIAL – PARTICULAR GROUNDS –
UNREASONABLE OR
INSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED –
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION– APPEAL AND NEW TRIAL – PARTICULAR GROUNDS –UNREASONABLE ORINSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED –appellants/applicants were each convicted by a juryof six counts of rapeagainst the first complainant – appellants/applicants were each acquittedby the jury of three countsof rape alleged against the first complainant– both appellants/applicants also pleaded guilty to 10 counts of rape andonecount of deprivation of liberty of the second complainant – oneappellant/applicant also pleaded guilty to one count of stealing– whetherthe six convictions and three acquittals in respect of the first complainantwere inconsistent and irreconcilablewith the directions given by the trialjudge – whether the convictions on six counts of rape against the firstcomplainantwere unsafe and unsatisfactory having regard to the evidence –
whether the trial judge erred by stating a personal view on
a question of fact
– whether the appellants/applicants were denied a fair trial because a
support person of one of the complainants
uttered an inadmissible opinion on the
accuracy of the complainant’s evidence – whether the trial judge
adequately summed-up
the defence case
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
– APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED
PERSONS –
APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – PARTICUALR OFFENCES
– SEXUAL OFFENCES –
whether the sentences were manifestly excessive
in all the circumstancesMacKenzie v The Queen (1997) 190 CLR 348,
citedOsland v The Queen [1998] HCA 75
(1998) 197 CLR 316, citedR v
Barclay [1999] QCA 457
CA No 272 of 1999, 3 December 1999,
consideredR v DAL [2005] QCA 281
CA No 74 of 2005, 12 August 2005,
citedR v Gerrits (unrep., Williams, Ambrose and Cooper JJ, QCA, CA No
158 of 1991, 1192 of 1991, 4 October 1991), consideredR v Mason and
Saunders [1997] QCA 421
CA Nos 355 of 1997, 357 of 1997, 28 November 1997,
consideredR v Mitchell [1998] QCA 31
CA Nos 355 of 1997, 356 of
1997, 357 of 1997, 13 February 1998, consideredR v Tenniment [1992]
QCA 110
CA No 38 of 1992, 29 April 1992, considered
Judgment (73 paragraphs)
[1]
The appellants/applicants appeared on their own behalf
[2]
Director of Public Prosecutions (Queensland) for the respondent
[3]
[1] JERRARD JA: On 18 January 2006 Afsheen Hussein and Azhar Hussein were each convicted after a trial in the District Court of six counts of rape, those being for offences committed on the complainant, C, on 17 September 2004. Each was convicted as a principal offender against C on three counts, and as an aider to the other offender on the other three counts. On 9 March 2006 both applicants pleaded guilty to 10 counts of rape, and one count of deprivation of liberty, of the complainant, D, against whom they offended on 13 February 2005. Afsheen Hussein also pleaded on 9 March 2006 to one count of stealing from D. Afsheen Hussein was a principal offender in two of those counts of rape committed on D, and an aider in the other eight counts; Azhar Hussein was a principal offender on three counts of rape of D, and an aider on seven.
[4]
[2] On 8 May 2006 the learned judge who had presided at the trial of the offences committed against C, and before whom Afsheen Hussein and Azhar Hussein later entered the pleas of guilty for the offences committed against D, sentenced Afsheen Hussein to 15-and-a-half years imprisonment on each of the six counts of rape committed on C, and Azhar Hussein to 15 years imprisonment on each of those counts. The judge sentenced Afsheen Hussein to 11-and-a-half years imprisonment for the 10 counts of rape committed on D, and Azhar Hussein to 11 years imprisonment for those 10 offences. All sentences were concurrent, and Afsheen Hussein was also sentenced to nine months imprisonment for the count of stealing from D. Both were sentenced to two years imprisonment, also concurrent, for depriving D of her liberty.
[5]
[3] Both Afsheen Hussein and Azhar Hussein have appealed against their convictions for rape of C, and applied for leave to appeal against the sentences imposed for those offences. The grounds of appeal against conviction filed in the Court principally complained of inconsistency between the convictions on six counts for the offences against C, and acquittals on three such counts, contending those were inconsistent with each other and also irreconcilable with the directions given by the learned trial judge. The appellants additionally complained that the convictions were "unsafe and unsatisfactory", which is a complaint that the verdicts on those six counts were unreasonable or cannot be supported having regard to the evidence.[1] The appellants' written outline of argument adds three other grounds. Those are a complaint that the learned trial judge erred by stating a personal view on a question of fact; that the appellants did not receive a fair trial because the complainant's support person voiced an inadmissible opinion on the accuracy of the complainant's evidence, which may have been heard by the jury; and a complaint that the learned judge did not adequately sum-up the defence case.
[6]
[4] The evidence about those offences was as follows. C grew up in New South Wales, and on 16 September 2004 was living in Goodna, and she had been living in Brisbane for about six months. On that day she left her home at about 7.30 pm and went with two female friends to two hotels, where she drank alcohol, and they then went by taxi to the Fortitude Valley area, where C had more alcohol and some food. At about 2.00 am she left the Royal George Hotel, and was refused entry into a bar named Belushi's, because, as she recalled, the bouncer said she had casual clothes on. She exchanged some clothing with one of those friends, but was again refused entry, and when she was walking across a roadway with the intention of rejoining her friends, she was hailed by someone in a car. Mistakenly, she thought that was a car driven by another female friend of hers, with whom she had gone to school in New South Wales, and who was living in Brisbane in September 2004. Accordingly C called out asking the driver to wait for her, which the driver did. C opened the door and got into the back seat, behind the driver.
[7]
[5] On the defence case later advanced in cross-examination at the trial, Azhar Hussein was the driver and Afsheen Hussein was in the front passenger seat. The Husseins and C were complete strangers to each other, and C, whose evidence was that she was drunk by then[2], could remember asking them to take her back to Goodna, so she could change her clothes and come back into the City and go to a nightclub. She recalled being told "Yeah, no worries, we'll take you back to Goodna", by Azhar Hussein.[3]
[8]
[6] Azhar Hussein was born in Fiji on 31 December 1984, and so was 19, turning 20, at that time. He had been educated to year 12, apparently in Fiji, and had done some training for employment as a mechanic, and part of a TAFE course for qualification as a mechanical engineer. He was working in September 2004, picking and preparing fruit. Afsheen Hussein was born in Fiji on 13 November 1979, so he was close to turning 25, and had been married for one month, as at 17 September 2004. He had gained a Bachelor of Science at a university in Fiji and had come to Australia in 2001. In this country he had been studying for a masters degree in accounting, and doing part-time work in a fruit shop. Both brothers can communicate in English, although Fijihindu is their first language.
[9]
[7] C said that Afsheen Hussein, the passenger, said to her that they could get her into a club in the city. She replied to the effect "What makes you think you're going to get me in the club in the City when they didn't let me in the club in the Valley?"[4], and Afsheen Hussein replied to the effect that he knew the bouncer. C insisted that she just wanted to go home, and that the two Husseins said "Yeah, no worries, we'll take you home". She asked if she could "trust youse [sic]", to which they both replied "Yeah, you can trust us."[5]
[10]
[8] C next noticed a sign for the suburb of Toowong, and she assumed that she was being driven through that suburb and to Ipswich; then she saw a lot of trees. At some stage in the journey the two Husseins had spoken to each other in a language unknown to C, who asked them what nationality they were, and one or the other replied they were Fijian. C recalled in cross-examination that one said that they were going to pick up a lady friend of theirs, so she could have someone in the back to talk to. She said in reply that she just wanted to go home.
[11]
[9] Next she saw a sign which referred to a forest, and the car drove further. They passed a large sign that was lit up, and Azhar Hussein remarked that there were lights, and asked "Are you scared?" to which she "No why should I be scared of youse[sic]?"[6] She said that she made that statement because she was scared, but she did not want them to know it.
[12]
[10] Azhar Hussein had in fact driven the vehicle up the Mount Coot-tha road, which was a deliberate deviation from the freeway, which would have taken their vehicle in the direction of Goodna, and to an area which is non-residential and without street lighting. The only buildings are television broadcasting stations situated some distance from each other, and the area is popular with bushwalkers, cyclists, and tourists by day, and courting couples by night. Azhar Hussein parked the car in the car park, pulled out the keys and opened the glove box, producing a knife. He told C to remove her clothes, and she pleaded with him not to do that. He then told her again to take her clothes off, adding that "we find you very attractive. We want to have sex with you. Things can get out of hand."[7] In what reads as a carefully executed manoeuvre, as described by C, both Husseins then left the vehicle and, as she recalled, engaged child locks on firstly the front and then the rear doors, then locked the rear doors, and then Afsheen Hussein got into the car. He gave the knife to Azhar Hussein, who lent against the driver's door.
[13]
[11] C's evidence then described the commission of the offence charged, as particularised, as count 1, and committed by Afsheen Hussein, while Azhar Hussein waited with the knife outside the car. C said Afsheen Hussein unzipped his jeans, exposed his penis, and required C to fellate him. Eventually he ejaculated, and she described that as "and then he come all around my lips and all down my neck and then he told me to get up and to sit down".[8] Afsheen Hussein then knocked on the door, Azhar Hussein opened it, Afsheen got out, Azhar passed the knife to Afsheen, and Azhar got into the car.
[14]
[12] C then described in evidence-in-chief the commission of the offence which was count 2, as particularised. Azhar Hussein removed a packet of condoms from the back shelf, and instructed C to put one on him. He then told her to take off her clothes (she had put them back on), which she did, and to lie down, which she did. He then had sexual intercourse, and "he kept going and going until he came."[9] He told C to get up and sit down, and then knocked on the window, and Afsheen Hussein opened the door. They exchanged possession of the knife, and Afsheen Hussein entered the car and locked the door. He then got a condom and put it on, turning off the interior light.
[15]
[13] C's evidence-in-chief then described the commission of the offence which was charged as count 4, as particularised. Afsheen Hussein told her to bend over and said that they were going to "gang bang" her. She asked what that meant, and he said "one fuck up the arse and one fuck you up the hole at the same time"[10], and she pleaded with him not to. He then instructed her to fellate him, while he was wearing the condom, and she did so; he knocked on the window and turned on the light, and told Azhar to look through the window while she did that. He ultimately ejaculated, removed the condom, and told her to get up and sit back on the driver's side. He then knocked on the door, and the two offenders exchanged places and the knife, as before, with Azhar Hussein then entering the vehicle, removing his trousers, obtaining a condom, and putting it on.
[16]
[14] C's evidence-in-chief then described the commission of the offence charged as count 5, as particularised. She swore that Azhar Hussein told her to turn around and bend over, which she did, constituted by kneeling in a crouching position on the seat with her head at the driver's side door. Azhar Hussein then had vaginal intercourse with her, from the rear, but kept requesting that she "let me fuck you up the arse, I want to make your arse sore"[11]. She refused; ultimately he ejaculated, he then removed the condom leaving it on the floor and exchanged places and the knife with Afsheen Hussein in the manner previously described.
[17]
[15] In evidence-in-chief, C then described the offence charged as count 3, as particularised. Assuming that the original particulars had followed the then described sequence of events, C's evidence had changed that sequence for counts three, four, and five.
[18]
[16] Her description in evidence-in-chief of the fifth event, as described in that evidence, (count 3) was that Afsheen Hussein put a condom on and told her to turn around and bend over, saying "I just want to fuck you up the arse" but she objected.[12] There then followed vaginal sexual intercourse with her lying on her back, and she said that he "grabbed both of my legs from behind me and he put it on top of his shoulders and then he started having sex with me".[13] Eventually that stopped, and Afsheen Hussein removed the condom, and exchanged places and the knife with Azhar Hussein.
[19]
[17] Her evidence-in-chief then described what, as particularised, was count 9, an event and offence in which Azhar Hussein could not find the condoms, but told C to turn around and bend over, which she did, and vaginal intercourse occurred from the rear, with no condom. She recalled that Azhar Hussein remarked that "Oh yeah this is good", and that he said he wanted to "fuck you up the arse"[14], to which she objected; and then he asked her to scream or make some noise. She did not, and he then required that she say something, "Tell me its good, its nice", which she did. Eventually he ejaculated.
[20]
[18] At that state of her evidence-in-chief there was a break, at the request of the support person assisting C. The learned judge recorded in the transcript that C had already broken down on a number of occasions when giving her evidence, with pauses and breaks in between answers, and had been sobbing and crying on occasion. In other remarks at that part of the trial, the judge recorded that C was as upset as any witness the learned judge had ever seen in that type of case. That particular judge has many years of forensic experience in the criminal law. The judge also recorded that the judge understood that during the committal proceedings C had regularly vomited, and had required many breaks, and the judge understood she had had a similar nervous attack, including vomiting blood, on the previous Monday 9 January 2006.
[21]
[19] When the court reconvened with C in the witness box, 30 minutes later, C continued with the narrative. She then described the sequence of events, as originally particularised, in counts 6, 7, and 8. Those three offences were all allegedly committed by Afsheen Hussein, whom C said had entered the car after Azhar Hussein got out of it, once again exchanging the knife, and Afsheen Hussein told C to take her clothes off again. She protested that she thought she was going home, but Afsheen Hussein then required that she lie on her back and, in effect, open her legs; he stared at her vulva, and said "[y]ou're not red enough yet for you to go home."[15] He then pulled down his pants, put on a condom, and had vaginal intercourse. That ceased, he got up, removed the condom, and required that she fellate him, which she did. During the course of that, he required that she lick his testicles, which she said he forced into her mouth. The act of intercourse was count 6, and the fellatio - in which she said he grabbed her from the back of her head, and jerked her head down onto his testicles - was count 7.
[22]
[20] Count 8 consisted of his feeling her breasts, unzipping her jumper and pulling up her shirt and bra, which he had unstrapped, and moving his penis between her breasts. Ultimately he ejaculated on her tongue and on her breast. He then rubbed the semen all over them. After that he exchanged places with Azhar Hussein, and on C's account in evidence-in-chief, Azhar Hussein committed an offence of vaginal rape, after advising that he wanted to "fuck me up the arse."[16] It appeared common ground between counsel and the learned trial judge that that evidence was a repetition of the description of count 9, but placed in the chronological sequence suggested by the particulars. Count 9 was the last sexual event alleged.
[23]
[21] C's evidence was that she then told the Husseins that she needed to go to the toilet, and Azhar Hussein asked if she was serious. He then caused Afsheen Hussein to release her from her the vehicle, and she walked behind the car and squatted down. She then asked Azhar Hussein if he had any toilet paper, and said she was "doing a poo", to which he again asked "Are you serious?" When she said she was he spoke with Afsheen Hussein (in Fijihindu), and they simply got into their vehicle, locked the doors, started it and drove off. She then got up and "ran and ran until I seen a big sign"[17], which proved to be the Channel 9 premises. She ran to a security guard, whose evidence was that he saw her approaching him, staggering, crying, speaking incoherently, asking for help, and saying that she had been raped by two men. Thereafter a police investigation ensued.
[24]
[22] The first ground complains that the verdicts of guilty were unreasonable and cannot be supported having regard to the evidence. Apart from C's evidence there was the evidence of the security guard as to her distress,[18] and the jurors were entitled to take note of the general consistency of the account they heard from her, and the account she gave to the police who arrived to investigate, and the account she gave to the medical practitioner, who examined her at about 9.00 am on 17 September 2004. That practitioner saw that her neck appeared to have restricted movement, but no bruising was evident, there were three semicircular bruises on the left arm that appeared to be finger tip bruises, a tender area without bruising on the right arm, apparent pain from her legs and inner thigh with tenderness but no bruising, two areas of intense redness at the entrance to her vagina, and some tenderness across the lower abdomen. The doctor agreed in cross-examination that what she had observed would be consistent with rigorous, consensual and prolonged intercourse in a confined space with more than one partner.
[25]
[23] Other evidence included that microscopic examination had revealed the presence of spermatozoa on smears taken from the high vaginal and low vaginal areas, on each of the right and left hand, and from her vulva and her perianal area. No other spermatozoa or traces of ejaculate were located, and specifically none on her breasts and neck. The scientist who gave evidence of those examinations agreed in cross-examination that if ejaculation occurred onto skin, with no washing of the skin afterwards and with the area protected by clothing, that the scientist would expect that there would be some left which could be detected on examination, but this would depend upon the circumstances.[19] However, despite the evidence that that scientist would have expected to see the presence of seminal fluid or spermatozoa, on the skin, no testing had been done to see if there was any trace of such spermatozoa or fluid on the inside of the upper front of the pink jacket which C had been wearing.[20]
[26]
[24] The importance of the expert scientific evidence in the trial was made apparent in formal admissions made on behalf of both appellants at the end of the Crown opening.[21] Those included that on 25 February 2005 both appellants had provided a DNA sample to the police, and that the swab taken from C's left hand had contained a mixed partial DNA profile, consistent with the DNA profile of Afsheen Hussein, with a probability that it had come from some person other than him of approximately one in 1.1 thousand billion people. It was also admitted that a swab taken from C's perianal region had provided a partial DNA profile consistent with the profile from Azhar Hussein, and that the probability of it coming from someone other than Azhar Hussein was approximately one in 54 million people in the population. Further, a condom located at the ground at the car park and examined by the police contained on its inner surface a DNA profile the same as that obtained from Azhar Hussein and on its outer surface a DNA profile the same as that obtained from C. Likewise stains in the inner and outer surface of the jacket were reactive to seminal fluid and spermatozoa, and a sample from the right sleeve provided a mixed DNA profile; and that if only two people contributed to that, it was about 41,000 million times more likely to have come from C and Afsheen Hussein than from C and an unknown person selected at random from the population.
[27]
[25] Those admissions of fact meant, as the learned trial judge explained to the jury, that identification of Afsheen Hussein and Azhar Hussein as the two people in the incident was not an issue on the trial. I add that C did not purport to identify them, and referred throughout her evidence simply to "the driver" and "the passenger" in the car.
[28]
[26] That summary of the evidence is sufficient to show why the first ground of appeal should be dismissed. It was certainly open to a jury, properly instructed as to the law as this jury was, to conclude that the appellants raped C. They make the point that no knife was located by the police five months later, in February 2005, when they became suspects, and that - as established by the evidence called by Afsheen Hussein, who did not himself give evidence, - the vehicle did not have an interior light when sold some months later, nor did it have a back passenger tray; what it did have was a stereo system, in the back, which had a narrow short top approximately four inches or 10 centimetres in depth and width. Likewise there were no child locks on the front doors.
[29]
Those matters to which the appellants' counsel pointed at the trial, and on which the self-representing appellants now rely, are matters of small moment. They are not such as to prevent a jury being satisfied beyond reasonable doubt that C was threatened with a knife as she described, and that she only submitted to unwanted sexual dealings with her because of fear that it would be used. The appellants also made the point that on examination C's clothing appeared undamaged; but upon the whole of the evidence, including the evidence as to the absence of child locks on the front doors, no interior light some months later and no back tray, it was open to the jury to be satisfied beyond reasonable doubt that both appellants were guilty. I add that neither of them gave evidence in support of the defence put to C in cross-examination. That was that there was no knife, that the appellants had at first declined to take her to Goodna and that she had then offered to make it "worth your while,"[22] and that they had gone up to Mount Coot-tha to have the good time that she had promised to them.[23] She said, in response to the suggestion by counsel for Azhar Hussein that she had said "let's go up towards Mount Coot-tha", that she did not even know then about Mount Coot-tha, or where it was.
[30]
[27] The second and third grounds of appeal can be considered together. They complain of inconsistency among the verdicts and with the learned trial judge's directions. The point is that both appellants were convicted of counts 1 to 5 inclusive, and count 9, and acquitted on counts 6, 7, and 8. They argue that those acquittals were inconsistent with the convictions, particularly because the learned trial judge, in the course of the summing-up, had suggested that the critical matter on the issue of non-consent was whether the jurors were persuaded beyond reasonable doubt that there was a knife present and produced,[24] and that "one would think you would resolve the issue of non-consent the same way in all counts."[25] The learned judge, while directing the jurors to consider the evidence and their verdicts in relation to each count separately, also reminded them that if they made an adverse finding on credit against the complainant on any one count they should bear that in mind when evaluating the credibility and reliability of the complainant on any other count. The appellants claim the jury must have overlooked that direction, as well as the suggestion that the jurors would resolve non-consent similarly for all matters.
[31]
[28] Those submissions assumed that the acquittals on counts 6, 7, and 8 happened because the jurors were not persuaded beyond reasonable doubt that C did not consent to the acts on which those counts were based. The appellants argue that the verdicts mean non-consent was established beyond reasonable doubt on the other six counts, but not on those three. They suggest that the verdicts probably mean that the jurors were not persuaded that a knife was produced or relevant to the consent given on three counts, but was on the other six.
[32]
[29] The respondent Director suggested that perhaps the verdicts of acquittal were explained by the absence of forensic evidence supporting the commission of the acts alleged in those counts. The appellants quite properly responded with the submission that there is equally an absence of forensic evidence supporting the commission of counts 1 and 9, and that therefore there ought to have been acquittals on those counts too; or else there should be now.
[33]
[30] I consider there is a simpler explanation for the acquittals on those three counts. C was cross-examined first by counsel for Afsheen Hussein, and that counsel had repeated in cross-examination, one by one, and in the same order as the description given in evidence-in-chief by C, C's account of counts 1 to 5 inclusive. That is, the cross-examination repeated the sequence, and the descriptions, of what were counts 1, 2, 4, 5, and 3. Although the questioning probed the accuracy of the description of the individual counts, it did not challenge the sequence given, and C's evidence in cross-examination repeated, firmly, her account in evidence-in-chief. Thus the jurors twice heard a clear description of those five counts, in a specific sequence.
[34]
[31] I add that the learned trial judge went to considerable lengths to ensure that the jurors understood that the sequence given in evidence-in-chief, and repeated in cross-examination, in respect of those first five counts differed, in a chronological sequence, from the particulars. The learned judge had clarified that with counsel on more than one occasion,[26] and the judge made what had happened very clear to the jurors in the directions to them on the individual counts, when summarising the evidence the complainant gave on each.[27]
[35]
[32] When the cross-examiner had finished asking C about those first five counts, there was cross-examination then about the incident which was charged as count 9, but which was the sixth in the sequence described in evidence-in-chief by C. The cross-examiner then established that C had given a different sequence on other occasions, and established that the events described in counts 6, 7, and 8 had been previously described as occurring before the events described in count 9. C readily agreed that in previous evidence she had alleged six different events in relation to either man having some sexual activity with her, and that her evidence-in-chief on the trial had described at least eight such incidents.[28] The suggestion was then put that "we have doubled up somewhere", and C's answers showed some uncertainty about that.[29]
[36]
[33] In the result the jurors heard clear descriptions of counts 1 to 5 on two occasions, and it was not suggested in cross-examination that C had ever previously failed to describe any of those five incidents in the same terms; so the jurors could infer that she had remained consistent in her description of each of those having happened. They also heard her say quite clearly that the event charged as count 9 was the last act of sexual abuse of her. They heard the suggestion, which she appeared to accept in cross-examination, that she had by some means added two events to her description of them, and the three counts on which the jurors acquitted - 6, 7, and 8 - were the counts which could have resulted from that "doubling up". That appeared to follow from the cross-examination, and the acquittals can therefore be explained as the jury being cautious about the possibility that the admittedly drunken C was uncertain as to how many acts of abuse happened, but the jury being appropriately confident she had been consistent and accurate in the description of the six on which there were convictions.
[37]
[34] A number of matters of principle have been settled about the assessment by appellate courts of claims of inconsistent verdicts by a jury.
[38]
1. Where inconsistency is alleged as to verdicts of acquittal and conviction on different counts, the onus is onthe party alleging that inconsistency to persuade an appellate court that the different verdicts are an affront to logic and commonsense which is unacceptable, and which strongly suggests a compromise in the performance of the jury's duty, or confusion in the minds of the jury, or a misunderstanding of their function, or uncertainty about the legal difference between specific offences, or a lack of clarity in the instruction on the applicable law. Where that inconsistency rises to the point that the appellate court considers that intervention is necessary to prevent possible injustice, the relevant conviction will be set aside.[30]
[39]
2. Whether the verdicts are inconsistent as so described is a test of logic and reasonableness; has the party alleging inconsistency satisfied the court that no reasonable jury, who had applied their minds properly to the facts in the case, could have arrived at the various verdicts?[31]
[40]
3. Respect for the function of the jury requires appellate courts to be reluctant to accept submissions that verdicts are inconsistent in the sense described, and if there is a proper way by which an appellate court can reconcile the verdicts, allowing the court to conclude that the jury performed their functions as required, that conclusion will generally be accepted. It is not the role of an appellate court to substitute its opinion of the facts for one which was open to the jury, if there is some evidence to support the verdict alleged to be inconsistent.[32]
[41]
4. The view may properly be taken in a criminal trial that different verdicts, claimed to be inconsistent, reveal only that the jury followed the judge's instruction to consider separately the case presented by the prosecution in respect of each count, and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt. Alternatively, an appellate court can conclude that a jury took a merciful view of the facts on one or more counts, a function which is open to a jury.
[42]
5. Verdicts of guilty and of acquittal will show the required inconsistency where a verdict of acquittal necessarily demonstrates that the jury did not accept evidence which they had to accept before they could bring in the verdict or verdicts of guilty which they did; or when it follows that when acquitting on a particular count, the jury must have accepted evidence that required them to acquit on a count or counts on which they convicted the defendant.[33]
[43]
[35] Applying those principles the different verdicts are not inconsistent in the described sense, and do not justify doubts about the basis for the convictions.
[44]
[36] The appellants complain that the learned judge expressed an opinion, when directing the jury that:
[45]
"In this particular case, the complainant was scared because of the presence of the knife and what might happen with it, so she did not resist."[34]
[46]
That statement does imply an opinion by the judge; but it was made when the learned judge was giving the jurors directions on parties to offences, and on the circumstances in which a person who is present and armed can be criminally responsible for the acts of another. The learned judge had explained the application of that law to the facts alleged by the Crown, that "the case for being a party is pretty clear cut; most importantly, having the knife to cause the complainant to comply, to overcome resistance." The judge had then explained how some victims of rape might struggle, others might not resist to minimise injury; and then the learned judge made the described comment about the presence of the knife. That was followed three sentences later by the observation that the jury's findings of fact were crucial, of which one (potential finding) identified was "Do you find the fact there was a knife involved?"[35] Put in context, it would have been obvious that the learned judge was not expressing a personal opinion, but was explaining the law as it applied to the facts, which were for the jury to find.
[47]
[37] The next ground of appeal was a complaint that the support person had voiced an opinion which the jurors may have heard. That matter was raised for the first time by counsel for Afsheen Hussein during the summing-up, and the learned judge was told that the instructing clerk for one counsel had heard the support person say, on one of the occasions when C was leaving the court with the support person during C's evidence, that "It's okay, I believe you."[36] Counsel observed that perhaps one or more of the jurors may have heard that as well.
[48]
[38] C had certainly left the court room more than once when upset, both in evidence-in-chief and in cross-examination.[37] The learned judge had given permission to the support person, during cross-examination, to hold C's hand, and had intervened to ask C to calm down on at least two occasions in further cross-examination. When the statement attributed to the support person was described to the judge, the judge remarked that that particular support person had been given greater latitude than the judge had previously extended to a support person in a trial, and the judge then gave directions to the jury about the matter of which the learned judge had just learnt. Those directions quoted the offending words, and included that the support person ought not to have said those words attributed to her, that not being her role; and her belief and opinion was irrelevant, as was that of the learned judge. The judge added "[i]t does not matter what anyone else other than you 12 thinks on a question of fact that matters. You and you alone decide all questions of fact."[38] The learned judge then gave the jurors firm instructions to disregard the event, repeating that it should not have happened, and that while it was common enough for a support person to sit near a complainant, it was not that person's role to say anything for the jury to hear. After that the judge continued with the directions on the case.
[49]
[39] The learned judge's prompt response to the matter counsel raised was appropriate and neither of the defence counsel raised any objection when the judge said "As soon as the jury comes in, I'll say something." If any jurors did hear the remark when first made, those jurors would have been left in no doubt that it must be disregarded. Likewise, any juror learning it for the first time in those directions. In those circumstances the fact that that opinion was voiced was not allowed to affect the trial and did not cause a miscarriage of justice.
[50]
[40] The final ground of appeal is that the trial was not fair because the learned judge did not adequately sum-up the defence case. That complaint based on the calculation by the appellants that the judge spent 80 minutes summarising the evidence called by the prosecution, and its arguments, and about half that time summarising the defence case and arguments advanced. The discrepancy, if it should be so labelled, results simply from the fact that the appellants' evidence in defence was restricted to two short witnesses. Neither of them gave evidence. The appellants do not suggest that the learned judge did not sufficiently remind the jurors of that evidence, or of the arguments advanced by their counsel based on the whole of the evidence. On my reading of the transcript the learned judge did remind the jurors of those arguments. This ground of appeal should be dismissed.
[51]
[41] It follows that the appeals against conviction should be dismissed.
[52]
[42] Both have applied for leave to appeal against their sentences, arguing they are manifestly excessive. They rely on a number of matters. One is that when submissions on sentence were being made on 9 March 2006, counsel for the Director had suggested a head sentence in the order of 12 to 14 years.[39] Counsel did, but what the applicants overlook is that that was in response to an invitation from the learned sentencing judge to suggest what would have been the appropriate head sentence for the offences committed against C, had there not also been the offences committed against D. The learned sentencing judge was endeavouring to establish the correct basis upon which to impose sentence. The prosecutor's reference to 12 to 14 years was followed immediately after by the prosecutor's insistence that the appropriate overall sentence was in the region of 17 or 18 years imprisonment;[40] and when the sentencing hearing resumed on 8 May 2006 the prosecutor adhered to a submission that the effective head sentence should be 17 years for each prisoner.[41] Accordingly, the argument that the learned judge imposed a heavier sentence than the prosecutor had asked for is inaccurate.
[53]
[43] On 8 May 2006 senior counsel appeared for both applicants, and submitted to the learned judge that the sentence to be imposed should be a global one, which in the case of Azhar Hussein should be 14 years imprisonment, and in the case of Afsheen Hussein, 15 years imprisonment. The sentences the learned judge imposed were thus quite close to those suggested by the applicants' senior counsel. On this application the applicants submitted that they had had little notice that their senior counsel intended to make that submission, and argued that with more notice they might have terminated his retainer and sought different representation. They argue that the circumstances of other sentences of comparable length which this Court has upheld or imposed suggests that their senior counsel was in error, as was the learned judge, and that their sentences are too high.
[54]
[44] They referred to a matter of R v Mitchell [1998] QCA 31[42], in which that applicant was sentenced after a trial to 15 years imprisonment on four counts of rape, two counts of indecent assault with an aggravating circumstance (anal intercourse), three counts of indecent assault with an aggravated circumstance (his penis coming into contact with the mouth of the complainant), one count of indecent assault, and one of assault occasioning bodily harm in company. That applicant was one of three co-offenders who effectively abducted a complainant known to them, and that applicant, before raping her, hit her in the mouth and across the head. The offences committed upon her included anal intercourse by that applicant, without consent.
[55]
[45] The circumstances of those offences are similar to the ones under consideration here, in that there was more than one assailant who raped the victim, and there was a trial in which the defence proffered was a claim of consensual intercourse. That applicant did not threaten the victim with a weapon, but did assault her. His sentence of 15 years imprisonment after a trial was disturbed on appeal only by the removal of the declaration that he had been convicted of serious violent offences, and that occurred only because those offences were committed before Part 9A of the Penalties and Sentences Act 1992 (Qld) came into force.
[56]
[46] Mr Mitchell's co-offenders, who were sentenced to 14 years and 12 years imprisonment respectively, likewise had the declarations removed from their sentences, in a separate appeal (R v Mason and Saunders [1997] QCA 421[43]). The judgments of this Court in R v Mitchell and R v Mason and Saunders do not record any complaint about the head sentences other than the fact that there was the declaration, held unavailable.
[57]
[47] In R v Barclay [1999] QCA 457[44] this Court upheld a sentence of 15 years imprisonment imposed after a trial upon an offender who had entered the victim's place of accommodation when she was sleeping, severely bashed her, and then raped her. That offender did not use a weapon, but his assault was a very serious one in which the victim was punched so often and so hard in the chest and face that she could barely see, and she felt herself losing consciousness. That offender had previous convictions, which included one for rape in 1977, frequent convictions for offences involving drugs, and a conviction for assault occasioning bodily harm in 1985. This Court held that the 15 year sentence was supported by cases such as R v Tenniment [1992] QCA 110[45], R v Gerrits (unrep., Williams, Ambrose and Cooper JJ, QCA, CA No 158 of 1991, 1192 of 1991, 4 October 1991), and the judgment in R v Mason.
[58]
[48] In Tenniment a sentence of 15 years was upheld by this Court on a count of rape, after that applicant had pleaded guilty to three counts, those being, burglary, rape, and rendering a female incapable of resistance by methods calculated to choke. That offender had broken into a dwelling and attacked the complainant, knowing her boyfriend was away, and the offender intended to rape her. This Court described him as having used an appalling degree of force in a prolonged attack, in which he made a number of violent threats. The sentencing judge recommended consideration for release on parole after six years, and this Court described the sentence as "at the top of the range", but not manifestly excessive. In R v Gerrits, that offender had entered the victim's home at night and assaulted her with a bottle, which broke, cutting her scalp, and he also cut her face, threatened to kill her daughter, and forced sexual dealings upon her, including anal rape. He was sentenced to a total of 16 years imprisonment after a trial, upheld by this Court, which referred to his mercilessly assaulting that victim with a bottle and having shown no remorse.
[59]
[49] The appalling extent of force used by the offenders in Tenniment and Gerrits suggests that the head sentence imposed in this matter was too high, but only if attention is focused solely on the offences committed against C. A conclusion the sentence is too high also overlooks that senior counsel for the applicants invited the learned sentencing judge to impose what counsel called a global head sentence, meaning one which reflected the applicants' overall criminality for all their offences.
[60]
[50] That makes the circumstances of the offences committed against D relevant. Those are helpfully described in the respondent's outline of argument; they are that on 13 February 2005 D, who had decided to work as a prostitute to alleviate financial difficulties, was approached by a young man in a van, and she agreed to have intercourse with him for money. They drove to Mount Coot-tha and parked in a secluded car park. Both the Husseins and a fourth co-offender were hidden in the rear of the van under a tarpaulin, to the knowledge of the driver, and those other three only revealed their presence when the van had stopped. Afsheen Hussein was armed with a screwdriver and he threatened that the complainant D would be killed if she did not keep quiet. Azhar Hussein was holding her arm when that threat was made, and D, who feared for her life and who was pleading with the men not to hurt her, was then subjected to sexual assaults by all four men. That included anal rape by Afsheen Hussein and also by Azhar Hussein, digital vaginal rape by Azhar Hussein, as D fellated another offender, and other forms of sexual abuse. Once again the Husseins had raped a young woman at Mount Coot-tha after threatening her with a weapon.
[61]
[51] That offence ultimately led to their undoing. The police were able to identify the vehicle and the co-offenders. Those co-offenders implicated the Husseins, which in turn led to their DNA being identified, and thus their involvement in the rape of C. The co-offenders regarding D had entered pleas of guilty to raping her on 17 January 2006, and a sentence hearing was held on 6 March 2006 in respect of them, and finalised on 7 March; and it was clear that they were available as Crown witnesses against the Husseins for the offences committed on D. On 9 March 2006 the two Husseins, who had pleaded not guilty to those offences on 18 January 2006, changed their plea to one of guilty.
[62]
[52] The offences against D revealed the Husseins as predatory and serial rapists prepared to threaten use of a weapon to overcome resistance. It is true that their offending did not involve the use of further violence to the victim, other than that necessarily involved in the commission of the actual offences, which distinguishes them from the offenders in the cases to which they and the prosecution refer. It was also obvious on the hearing of the sentence application that the two Husseins experience their head sentences as crushing ones, and they pleaded for the imposition of a 12 year head sentence on each. But although they make the valid point that their violence was limited to their sexual offending, they preyed upon two vulnerable victims, and the circumstances of both sets of offences involved a considerable risk of actual violence if the victim began to resist. The fact that there were two separate episodes of rape means that the 15 year head sentence, although high, was not manifestly excessive. Accordingly, I would dismiss the applications for leave to appeal the sentence.
[63]
[53] I would order that the appeals against conviction be dismissed and the application for leave to appeal the sentence refused.
[64]
[54] JONES J: I agree with the reasons of Jerrard JA and the orders proposed.
[65]
[55] ATKINSON J: I agree with the reasons for judgment of Jerrard JA and with the orders he proposes.
[66]
[1] In accordance with s 668E(1) of the Criminal Code 1899 (Qld).