Court of Appeal (Qld)|2006-10-20|Before: Williams and Keane JJA and Mackenzie JSeparate reasons for judgment of, each member of the Court, each concurring as to the orders made
Williams and Keane JJA and Mackenzie JSeparate 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 -
appellant convicted by jury of two counts of rape - two counts of rape involved
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEALAND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLEVERDICT -appellant convicted by jury of two counts of rape - two counts of rape involvedvaginal intercourse and anal intercourserespectively - at previous trialappellant convicted of rape based on oral intercourse occurring on the samenight - at previoustrials juries were unable to come to a verdict on countsrelating to vaginal intercourse and anal intercourse - appellant arguesconvictions unsafe because previous juries were unable to come to a verdict -appellant argues there were inconsistencies in Crowncase such that jury couldnot reasonably have been satisfied as to his guilt - whether conviction unsafeand unsatisfactoryCRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEALAND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTEDPERSONS -APPLICATIONS TO REDUCE SENTENCE - WHEN REFUSED - PARTICULAR OFFENCES - SEXUAL
OFFENCES - appellant sentenced to eight and
a half years imprisonment on each of
the three rape counts - appellant also sentenced to serve four month balance of
a previous suspended
sentence - appellant 20 years of age at time of offences -
offences committed during operational period of partially suspended sentence
imposed for offences of stealing, entering a dwelling without consent,
obstructing police and breach of community service order -
no remorse -
complainant 15 years old - whether sentence imposed was manifestly
excessive
MFA v The Queen [2002] HCA 53
(2002) 213 CLR 606, citedR v
Basic [2000] QCA 155
(2000) 115 A Crim R 456, considered
Judgment (61 paragraphs)
[1]
Director of Public Prosecutions (Queensland) for the respondent
[2]
[1] WILLIAMS JA: I have had the advantage of reading the reasons for judgment of Keane JA wherein the relevant facts are set out. Having perused the record I am satisfied that the verdicts impugned in this appeal were not "unsafe and unsatisfactory". Notwithstanding the fact that at an earlier trial the jury had been unable to agree on verdicts with respect to these two counts, there was ample evidence supporting the verdicts of guilty reached on the retrial. Undoubtedly there was sexual activity between the appellant and the complainant and the circumstances in which that activity occurred strongly supported her assertion that it was without her consent. The appellant's statements to police that he "got with her" and "slept with her" strongly suggest that there was more than oral sex involved.
[3]
[2] On sentence, the judge was clearly entitled to take into account the fact that the appellant took advantage of a heavily intoxicated young girl whom he had never met before. The degree of force used, whilst not great, was sufficient to overcome any resistance from an intoxicated girl who was much smaller than the appellant. In those circumstances a significant penalty was called for.
[4]
[3] I agree with all that has been said by both Keane JA and Mackenzie J in their reasons and with the orders proposed.
[5]
[4] KEANE JA: On 24 October 2005, the appellant was convicted upon the verdict of a jury of one count of rape. The jury was unable to reach a verdict on two other counts of rape. The appellant appealed against that conviction. On 17 February, this Court dismissed that appeal.[1] The appellant was subsequently retried on the other two counts. On 20 March 2006, the appellant was convicted upon a jury's verdict on these two other counts. He was thereupon sentenced to eight and a half years imprisonment on each of the three counts on which he had been convicted. He was also sentenced to serve the four month balance of a suspended sentence which had been imposed on 22 April 2004. This four month term was to be served cumulatively upon the sentence for the sentence imposed on 20 March 2006.
[6]
[5] The appellant now seeks to appeal against the convictions on the two counts of rape on 20 March 2006 on the ground that the verdicts were "unsafe and unsatisfactory". He also applies for leave to appeal against the sentence on the ground that it was manifestly excessive.
[7]
[6] The complainant's evidence was the same pre-recorded evidence as that given by her in the earlier trial. This summary of the complainant's evidence reflects, so far as it is relevant, that which I set out in my reasons for decision in the appeal determined on 17 February 2006.[2]
[8]
[7] The complainant was born in 1989. According to the complainant, on the evening of 5 March 2005 she had a number of drinks at a friend's house before moving to the Grand Hotel on Goondoon Street, Gladstone with two friends, AF and LM. Once at the Grand Hotel, the complainant had several more drinks. She parted company with AF and LM after they left the hotel.
[9]
[8] She was walking up Yarroon Street when the appellant walked in front of her and bumped into her. By this time the complainant, by her own account, was "pretty drunk". The appellant then pulled her, by the hair at the front of her head, up some steps and pushed her onto a raised platform. She landed on her hands and knees. The complainant was wearing a pink dress. The appellant pulled her dress up to her hips and pulled her underpants down to her feet.
[10]
[9] In relation to the first count on which the appellant was convicted on 20 March 2006, the complainant said that the appellant pushed his penis into her vagina for a period which she could not estimate. She said that there was no conversation at all during the incident, and that she did not call out for help because she was afraid of being hurt by the appellant. She was crying. She had never seen the appellant before and did not agree to having sexual intercourse with the appellant.
[11]
[10] In relation to the second count on which the appellant was convicted on 20 March 2006, the complainant's evidence was that the appellant then "flipped" her over onto her hands and knees. The complainant's evidence in this regard might be thought to be inconsistent with her earlier evidence to the effect that she had landed on her hands and knees prior to the events which were the subject of the first count. This possibility was not explored in cross-examination of the complainant. It may be that the complainant's account had omitted the fact that she had been placed on her back when the incident the subject of the first count occurred. In any event, the complainant said that he put "it" (referring to the appellant's penis) in her anus, and that he did this five times. She said that the appellant's penis went past the rim of her anus. She said that this caused her pain although he did not penetrate her anal passage. She said that she did not agree to this act of sodomy.
[12]
[11] In relation to the third count on which the appellant had been convicted on 24 October 2005, the complainant said that the appellant pulled her up by the hair into a sitting position, and forced his penis into her mouth. He ejaculated into her mouth and onto her dress. He then jumped over the railing and ran off. She said that she did not agree to the appellant putting his penis into her mouth. I pause here to note that this was the offence of which the appellant was convicted on 24 October 2005. The learned trial judge instructed the jury in this case that this aspect of the incident was not the subject of a count before them, and that they could not use their belief that the act of non-consensual fellatio had occurred as part of the proof of either of the counts before them.
[13]
[12] The complainant said that she sat crying for a while before trying to ring AF on her mobile phone. She said that he rang her back and she told him that she had been raped. It was apparent at trial that in this she was mistaken, and that this conversation was actually with LM.
[14]
[13] Police photographs showed bruises on the complainant's knees. She said that she came by these bruises when she was on the platform. She also said that she had a bruise on her left elbow which had not been there earlier in the evening when she had left the hotel.
[15]
[14] On the complainant's account, there had been no conversation between herself and the appellant. It was put to the complainant on the appellant's behalf that she first met the appellant in Goondoon Street near KC's take-away, spoke with him and told him her name before going willingly with him to the stairs where they kissed. It was put to her that the appellant kissed her breasts, that she got on all fours, that the appellant put his penis into her vagina, that she then sucked his penis until he ejaculated, that he then asked her for her mobile phone number which she provided and he put into his phone and then left her.
[16]
[15] AF gave evidence that he had not seen the complainant talking to anybody after they left the hotel where they had been drinking, but he was walking down Goondoon Street ahead of her. LM went off by himself for some time. When AF last saw her, she was about 100 metres behind him. He did not see her talking to anyone before he lost sight of her. He and LM tried, without success, to contact the complainant on their mobile phones.
[17]
[16] LM gave evidence that he made a number of attempts to telephone the complainant, but each time her mobile phone rang out. When LM was finally able to speak to her on her phone, he asked her where she was. She was crying over the phone. Eventually she said "Oh, I don't know where I am. I think I've been raped."
[18]
[17] AF and LM eventually found the complainant. LM said she was on the steps of the old post office, curled up in a ball and crying. Her hair was messed up and he saw a little spot of blood on the back of her dress. He hailed a passing police car. AF described her as curled up in a ball on the steps and crying.
[19]
[18] Constables Steel and James were hailed to the scene of the incident by LM. Each of the constables said that the complainant was moaning and was not responsive to their questions. They called the ambulance. The ambulance officer gave evidence that the complainant was "very distressed" and "actively crying" at the scene of the incident. The ambulance officer's evidence was that the complainant continued crying in the ambulance on the way to the hospital.
[20]
[19] At the hospital, one of the nursing staff noted that the complainant's hair was dishevelled although no hair was seen on the pillow on which the complainant had been lying. It was also noted that the complainant's strapless bra was out of place in that it was sitting too far down her chest. The complainant denied that the appellant touched her bra or breasts and was not aware that the bra was out of place.
[21]
[20] Dr Mawer, a government medical officer, saw the complainant at 6.50 am on
[22]
6 March 2002. She noted that the complainant's feet and knees were dirty. She had tiny abrasions on her knees and small red patches on both elbows. Dr Mawer could not see any injury to the complainant's scalp or any hair missing. Genital and anal examination revealed no injuries, but Dr Mawer gave evidence that this did not exclude the possibility of non-consensual penetration.
[23]
[21] Constable Johnson gave evidence that she saw the complainant in distress at the old post office at about 3.00 am. She also saw the appellant on Goondoon Street near KC's take-away at 4.27 am. The appellant was arguing with his girlfriend
[24]
Ms MacB. She had a pair of shoes in her hand that she was "waving around near the appellant's face".
[25]
[22] On 12 March 2005, the appellant and Ms MacB attended the police station and were interviewed by police. The appellant was told that police were investigating a serious sexual assault that had occurred on 6 March 2005. The appellant said that he had read about it in the paper. He said that he had been at the Grand Hotel with his cousin, HM, and that he later went to another hotel with his girlfriend. The appellant denied that he recalled seeing a white-skinned female in a pink dress at the Grand Hotel or anywhere else that evening. He was asked to provide a DNA sample and did so.
[26]
[23] On 5 April 2005, the appellant's DNA was found to match the semen on the complainant's dress. As a result, a photograph of the appellant was put onto a photo board and shown to the complainant who identified the appellant as the man who raped her. The police then interviewed the appellant again later on 5 April 2005.
[27]
[24] At this second interview, the appellant said he knew nothing about the alleged rape of a girl in a pink dress and that he did not know who the girl was. When asked if he had met any girls on the night of the alleged rape, he said that he met "some girl" outside KC's and that she wore "a pink dress like you just said, that's what I was just thinking". He said that the girl gave him "signals" and that they went behind the old post office and he "got with her". He said that he had never met her before and that she had initiated the conversation. He said that they had sex within three to five minutes of meeting. He said that the complainant had told him her first name and he was "pretty sure" that he told the complainant his name. He said that they had vaginal intercourse followed by oral sex. He said he ejaculated in her mouth. He said that she gave him her phone number which he put into his phone. He said that he later deleted it so that his girlfriend would not see it. He said that he had written the number down before he deleted it but that he did not then know where that piece of paper was. He said that he was with his cousin, HM, when he first met the complainant. He said that HM was still in Goondoon Street when he returned after his encounter with the complainant.
[28]
[25] HM gave evidence in the Crown case. He said that he had seen the appellant in Goondoon Street across the road from KC's, but he did not see the appellant talking to any girls, other than Ms MacB, on the night of the alleged rape.
[29]
[26] The appellant did not give evidence at the trial. He did, however, call Mr Vale, the solicitor engaged to represent him after he was arrested. Mr Vale said that, on about 16 May 2005, a girl, who he understood to be the appellant's girlfriend, called at his office and dropped off a piece of paper upon which was written a mobile phone number. The number was the number for the complainant's mobile phone.
[30]
[27] The complainant gave evidence that a young man, TC, attended her school between 27 January 2004 and 1 July 2005. The prosecution suggested that TC may have provided the appellant with the complainant's mobile phone number.
[31]
[28] Having summarised the evidence at trial, I now turn to consider the grounds of appeal.
[32]
The appellant's arguments in relation to the convictions
[33]
[29] The appellant's ground of appeal must be understood as being to the effect that it was not reasonably open to the jury upon the whole of the evidence to be satisfied of the appellant's guilt beyond reasonable doubt.[3]
[34]
[30] In this regard, the appellant advanced two broad arguments. The first was that the circumstance that juries on two previous occasions were unable to come to a verdict on the two charges on which he was convicted on this occasion necessarily meant that this jury could not reasonably have been satisfied as to his guilt. The second argument was that there were such inconsistencies in the Crown case that the jury could not reasonably have been satisfied as to his guilt.
[35]
[31] As to the first of these arguments, the circumstance that, on two previous occasions, juries were unable to reach a verdict in relation to the charges in question does not mean that the jury in this case could not reasonably have been satisfied as to the appellant's guilt. In this regard, the appellant places some reliance on the passage in the learned trial judge's summing up in which his Honour stated "[i]f you are in doubt as to where the truth lies you are duty bound to acquit ...". The appellant argues that, because previous juries had been unable to reach a verdict on these two charges, those juries must have been "in doubt as to where the truth lies" and, accordingly, the appellant should have been acquitted in accordance with his Honour's directions, both by those earlier juries and this jury. But the appellant misconceives the directions. The learned trial judge was addressing each member of the jury individually, and directing each juror that he or she was duty bound to acquit if he or she had any doubt as to where the truth lay. The learned trial judge was not directing that the jury was obliged to acquit the appellant if the jury had collective doubts (if, for instance, some were inclined to acquit and some to convict). The effect of the appellant's submission would be that if ever one juror doubted the guilt of the accused, the accused would be entitled to an acquittal by the jury collectively thus overriding the oaths taken by those jurors convinced of the accused's guilt. Such a result would be contrary to law. Furthermore, there would never be an occasion for a retrial because a jury could never fail to reach a verdict. Retrials after a hung jury are a common place aspect of our system of administration of criminal justice.
[36]
[32] It is fruitless to speculate as to why the earlier juries were unable to reach a verdict when there has been a retrial, and the later jury has been able to reach a unanimous verdict. The mere fact that this sequence of events has occurred does not establish the unreasonableness of the verdict which is ultimately reached.
[37]
[33] As to the second of the appellant's arguments, the first point was that the complainant said to LM: "I think I've been raped." The appellant says that this statement exhibits a degree of uncertainty on the complainant's part consistent with reasonable doubt as to the truth of the complainant's account. The question is whether it was open to the jury on the whole of the evidence to be satisfied of the appellant's guilt beyond reasonable doubt. The jury may well have been disposed to regard the complainant's statement as reflecting her dazed mental state after the occurrence of the violent and frightening ordeal of which she gave evidence. It should also be emphasised here that the complainant prefaced the "I think I've been raped" statement to LM with the words: "Oh, I don't know where I am."
[38]
[34] The appellant's second point in relation to his second argument was that there were no physical injuries to the complainant which were apt to confirm the truth of her account. For example, it was said that there was no evidence that any of the complainant's hair had been pulled out. On the other hand, of course, there was evidence that the complainant's hair was dishevelled. In any event, the absence of more serious physical injury was not itself inconsistent with her account. It was a circumstance which the jury were entitled to take into account in their deliberations. Its weight in those deliberations was a matter for the jury. In that regard, the jury may well have borne in mind the relative size of the complainant and the appellant (which would have been apparent to the jury), and that, on the complainant's evidence, she did not struggle violently against the appellant.
[39]
[35] The appellant's third point in relation to his second argument is that the appellant was confused as to some of the details in her account of the incident notwithstanding her claim, asserted in cross-examination, to have a precise recollection of the incident. None of those details related to the core elements of the complainant's evidence. For example, the complainant was unsure as to whether or not the appellant was circumcised; but the nature of the incident and the lapse of time between the incident and her testimony to the court might reasonably have been thought to diminish the significance of this circumstance to irrelevance, especially bearing in mind that there was no issue as to the occurrence of a sexual encounter between the complainant and the appellant. Once again, however, the extent to which variations in the appellant's account of the details of the incident cast doubt upon the reliability of her version of events was a matter for the jury.
[40]
[36] In my opinion, the challenge to the reasonableness of the jury's verdict is not made out. The evidence of the complainant was supported by evidence confirming her distressed condition after the incident. She made a prompt complaint to LH. The jury were entitled to regard the appellant's case as inherently improbable, in that it depended on the complainant's willingness to engage in consensual sexual intercourse, including anal and then oral sex, after a few minutes' acquaintance, and in a back street. The credibility of the appellant's case was further weakened by his false denials, and the contradiction of his account of his movements at the time of the incident by HM.
[41]
[37] The appellant has not advanced any submissions in support of his application for leave to appeal against sentence.
[42]
[38] The appellant was born on 2 May 1984. He was thus 20 years of age at the date of the offences of rape, and 21 years of age when he was sentenced.
[43]
[39] The rape offences were committed during the operational period of a partially suspended sentence. That sentence had been imposed on 22 April 2004 for offences of stealing, entering a dwelling without consent, obstructing police and breach of a community service order.
[44]
[40] As to the offences of rape, the offences in question involved the brutal rape of a 15 year old girl who was unknown to the appellant. The appellant has not demonstrated the slightest remorse.
[45]
[41] In R v Basic,[4] McMurdo P, with whom McPherson JA and Mackenzie J agreed, reviewed the decisions of this Court relating to the range of sentences for the rape of a young woman alone in a public place where there has not been a brutal bashing of the victim, and where the offender had no like prior convictions. This review of the authorities demonstrated that the range is between seven and 10 years where the offender has pleaded guilty.
[46]
[42] In the present case, even if one takes full account of the appellant's youth, the sentence can clearly be seen to be within the proper range.[5]
[47]
[43] It cannot be said to be an excessive punishment to require the appellant to serve the balance of his suspended sentence cumulatively upon the sentences for rape. The appellant breached his suspended sentence by very serious misconduct. The consideration that he should suffer the proper punishment for his earlier offending was not outweighed in this case by the need to ensure that the appellant was not subject to a crushing sentence.
[48]
[44] The appeal against conviction should be dismissed.
[49]
[45] The application for leave to appeal against sentence should be dismissed.
[50]
[46] MACKENZIE J: The appellant submitted that his convictions of two counts of rape on the complainant were unsafe and unsatisfactory. The summary of the facts by Keane JA in his reasons reflects what the record shows and I therefore need not summarise them myself.
[51]
[47] The appellant was indicted for three offences of rape, one of vaginal intercourse, the second of anal intercourse and the third of fellatio. At his first trial he was convicted only of the third of those offences. The jury failed to reach a unanimous verdict on the first two counts. It is against verdicts of guilty of the other two counts in a subsequent trial that the appeal has been brought.
[52]
[48] I agree with Keane JA's analysis of the appellant's argument concerning the consequences of the failure of the first jury to reach a unanimous verdict on the two counts involved in this appeal. That analysis illustrates the fallacy inherent in the argument which has no substance.
[53]
[49] With regard to the remaining arguments, in assessing the credibility and reliability of the complainant's evidence, the jury had to weigh a variety of factors, including the evidence of her intoxication prior to the incident, her phone call soon after the incident to a friend in which she said she thought she had been raped, her physical and emotional condition when found by her friends (which the jury may well have concluded was genuine distress and dishevelment) and whether what was said to be inconsistencies in her evidence damaged her credibility.
[54]
[50] The evidence also included DNA evidence which linked the accused to the girl, evidence of her identification of him from a photo board and his accounts of the events of the evening to the police which the jury may well have thought to be contradictory and to involve equivocation. The later admission included an account of engaging in acts of fellatio and vaginal intercourse with the complainant within minutes of meeting her for the first time, following what he interpreted as an inclination on her part to willingly engage in them.
[55]
[51] I agree with Keane JA's observations concerning the issues raised by the appellant in regard to the quality of the case against him. It was, in my view, reasonably open to the jury on the whole of the evidence to be satisfied of the appellant's guilt beyond reasonable doubt. I agree that the appeal against conviction should be dismissed.
[56]
[52] With respect to sentence, the applicant was convicted of offences which involve pulling a fifteen year girl, who was somewhat intoxicated and who had never met him before, from the street by her hair into a place where he committed the acts described above on her without her consent. The sentence of eight and a half years imposed for these offences is consistent with the analysis of sentences for this category of rape in R v Basic[2000] QCA 155; (2000) 115 A Crim R 456. Imposition of a four month cumulative sentence for breach of a suspended sentence did not result in a sentence that, overall, was manifestly excessive. I agree that the application for leave to appeal against sentence should be dismissed.